Chagossians in the Courts:1999-present
1999 was an important year in the fight for Chagossian justice as the struggle reached the UK courts for the first time. Since then a small team of lawyers, working closely with Chagossians, most notably Chagos Refugee Group leader Oliver bancoult, have doggedly fought for the basic human and legal rights rights denied to Chagossians. Chagossians exile stripped them of their right of abode; to live in their homeland. Their exile in fact directly violates a clause of the Magna Carta, the foundational document of English law and global human rights. ("no man shall be exilied except by a jury of his peers").
Yet the Government has spent millions of pounds of taxpayers money fighting Chagossians in the courts. There is a bitter irony Chagossians has won more legal cases than they lost in the past 17 years, but remain legally barred from living in their homeland.
The legal process started 17 years ago seems ready to come to a conclusion in the next few months. We try to summarise what happened below. You can find contemporary coverage of all the legal cases in our Media Archive.
The High Court Victory-2000
In November 2000 came a landmark decision as the High Court ruled that the expulsion of the Chagossians was unlawful. The court case brought to light many documents detailing the full crime of the eviction, which had recently become public under the 30 year rule. As a result of the ruling, the order which had expelled the Chagossians had to be immediately amended, conferring on those born on the islands, and their children, the right to resettle on all the islands.
However, the government said that this would have to be balanced with their treaty obligations to the US, so the right to return excluded Diego Garcia. This makes the Diego Garcia base possibly the only one in the world with no adjacent civilian population.
But when asked about actually returning, the UK and the US both said it was the other’s responsibility. Meanwhile, the yachtsmen who frequent the outer islands were still tolerated, and the base continued to employ about 2,000 civilian personnel, recruited from the Philippines and Sri Lanka.
Political Reaction to the Legal Victory
A feasibility study into resettlement of the islands was completed in June 2002 by the Foreign and Commonwealth Office. It concluded that resettlement would be difficult, precarious and costly ,and mentions floods, earthquakes and global warming as possible hazards. But Harvard resettlement expert Jonathan Jenness said the study’s conclusions were “erroneous in every assertion” He also criticised the study for its lack of data, lack of objectivity, and a complete failure to consult the Chagossians themselves.
Royal Perogative bans Chagossians from their homeland-again. The second exile-2004
On Thursday 10 June 2004 royal orders were suddenly passed banning anyone from setting foot on the Chagos islands. The Government made this move on the day of local and European elections, ensuring it got minimal coverage. As Orders-in-Council, meanwhile, they did not have to be debated or approved by Parliament which was not consulted at all.
The orders amounted to a new act of exile, overruling the court victory in 2000. This blow was followed a few days later by the refusal of permission to appeal a High Court ruling from October 2003 which denied the Chagossians compensation.
Appealing the 2004 Exile: High Court Victory-2006
Understandably appalled by the British Government effectively nullifying a verdict of its own High Court, Chagossians challenged the legality of the 2004 Orders-in-Council in the High Court. On Thursday 11 May 2006 the High Court deemed the orders illegal.
This gave the Chagossians back the right of return that they won in 2000. The islanders’ solicitor Richard Gifford said: “The British Government has been defeated in its attempt to abolish the right of abode of the islanders after first deporting them in secret 30 years ago…This is the fourth time in five years that Her Majesty’s judges have deplored the treatment inflicted upon this fragile community.”
Government appeals and loses again: Court of Appeal-2007
But it wouldn’t be the last time – the Government appealed against the ruling, and a year later, was defeated again at the Court of Appeal, with the judges calling its treatment of the islanders unlawful and an abuse of power.
The Government wins-narrowly-in the Law Lords-2008
It then took its appeal to the House of Lords, where the Law Lords ruled in October 2008 by a majority of three-to-two to allow the government’s appeal.
In short, it means that the highest court in the land has decided the ‘Orders in Council’ used secretly to renew the islanders’ eviction in 2004 (after they had won the right to return four years earlier) were indeed legal, despite the High Court and Court of Appeal having said they were not.
Despite every court having backed Chagossians right to return over ten years then, the opinion of one judge seemed to close the door on the legal battle.
The European Court of Human Rights-2012
But the Chagossians didn’t give up and took their case to the European Court of Human Rights (ECHR).
In spite of the ECHR urging the Government to come to a out-of-court settlement with the Chagossian people, the Foreign Office choose to fight the case rather than admit the removal of the Chagossian people was and remains a gross violation of their rights as human beings. Both the pre-2010 election Labour Government and the current Conservative Government embraced this policy.
In 2012 the court delivered its verdict. Despite condemning the “callous and shameful” behaviour of the UK Government in their treatment of the Chagossian people, the Court found in favour of the UK Government. Their verdict rested on the belief that Chagossian had already received compensation which prevented any further challenge to the lawfulness of their removal.
This was a verdict we disagreed with on several grounds. As we noted elswhere, Chagossians widely reported that in agreeing to compensation this condition was not explained. The document they were asked to sign was written in legalistic English whilst many Chagossians had not even a basic grasp of the language. In any case, not all Chagossians received this compensation, not delivered until the mid-1980s, and much its real value was reduced by inflation, legal and administrative fees.
The Supreme Court-2015/16
It is indicative of how long the Chagossian legal figththave dragged on for that the highest court in the land has in fact changed during their 17 years of their legal battle with the UK Government. The Law Lords 2008 verdict in favour of the Government was one of their last before being replaced by the Supreme Court.
In 2015 the Chagossians, again led by Oliver Bancoult, took their case to the Supreme Court, challenging the validity of the 2008 Law Lords verdict on the on the basis that key evidence had been witheld by the Government. The evidence in question were papers acknowledging that an early 2000s feasability study which suggested that Chagossian return would be difficult was highly flawed.
The hearing was held during the summer of 2015 and attracted some media attention owing to the appearance of Amal Clooney in the court room representing the Chagossians.
The verdict was then delivered 29 June 2016. The Chagossian challenge was narrowly rejected by a vote of 3:2, although the UK government was deeply criticised in the Supreme Court's judgement. Although a defeat, the judgement was not entirely negative for Chagossians either. Judges confirmed that this was "not the end of the road," and that new evidence about viability of return meant that the government's legal ban on return should be revisited.
The prospect of decades more legal action, in which the UK government would need to spend millions of pounds in taxpayer funds fighting its own citizens right to live in their homeland, should be the motivation the UK government need to finally end this senseless and cruel exile.
Be assured however that the Supreme Court judges were right. This is not the end of the road. There are many more avenues to pursue and the Chagossians and their supporters will not give up in the fight for justice.