Court of Appeal upholds Secretary of State’s decision not to support resettlement of the Chagossians to the Chagos Islands


Re: R (Horareu) & Anor v Secretary of State for Foreign and Commonwealth Affairs [2020] EWCA Civ 1010

The Divisional Court had dismissed claims for judicial review to quash the decision made by the Minister of State for Foreign and Commonwealth Affairs that the Government of the UK would not support resettlement of the Chagossians to the Chagos Islands, which are part of the British Indian Ocean Territory, but would provide a financial support package of approximately £40 million for Chagossians over a period of ten years. This appeal raised issues about whether the European Convention on Human Rights extends to the Chagos Islands, as well as the intensity of the review carried out by the Divisional Court. It also addressed the implications of a recent opinion of the International Court of Justice and a consequential resolution of the General Assembly.

The Court of Appeal rejected the analysis of the Appellants concerning the scope of the Advisory Opinion and UN resolution and their relationship to the rights sought to be enforced by the Appellants and as to their impact upon the scope and effect of Article 1 and 56 ECHR. The reasons given by the Advisory Opinion and UN Resolution do not serve to engage the ECHR and do not enlarge the common law right of abode.

As to whether anxious scrutiny was applied by the Divisional Court and the Decision-maker, the Court of Appeal held that the adoption of a formal standard of “anxious scrutiny” would not have made any difference to the result in the Divisional Court or in the Court of Appeal. A finding that the standard of review is not technically one subject to “anxious scrutiny” does not mean that the Court will not look long and hard at the decision challenged in the case. In light of this, it was not necessary to consider whether the standard of anxious scrutiny applied to the decision maker as well as the Court.

Phillippa Kaufmann QC was involved in this case.