• Peri Batliwala

Royal Court of Justice rejects Chagossian claim to citizenship

The sun already shone high and hot over the Royal Courts of Justice when I arrived there at mid-morning; an unbelievable 22 degrees in a month-long run of this unprecedented heatwave. It boded well to be a day of hope and miracles.

By 10.30 the coach from Crawley had arrived, disgorging its Chagossian passengers: the patient older ladies who spoke lilting Creole together, a couple of people in wheelchairs, a few young ones in smart suits and jackets. All had come to support Dominique Elysee, the defendant in today’s case, to win justice for Chagossians like himself, who were born on the wrong day, or in the wrong place, on the wrong side of a shameful episode in recent British history.

They put up their hand-written placards, and signs and politely handed out flyers to the few interested passers-by who were stopped in their rushing tracks for a moment by the sight of the orderly, friendly Chagossian crowd sitting and standing in the heat, and the arresting slogans they displayed: ‘Shame on the British Government’ and ‘Deport us from Chagos Islands, and now deport us from United Kingdom!’, among others.

Eventually it was the appointed time for the hearing in Court 27, and so we obediently shuffled past security, sipping our bottles of water to show they weren’t a threat (but a way of keeping hydrated), awed by the imposing grandeur of the great entrance hall of this palace of British Justice with its august, wigged legal luminaries of another age looking down on us from huge, gilded frames.

Court 27 is a pleasant chamber, lined with dusted legal tomes on wooden shelves, with rows of chairs along the side and three tiers of seats for ‘the public’ to watch the British legal system in action. It is impressive and reassuring, a place to trust that reasoned argument and morality will be displayed, and justice will be done and be seen to be done.

Jacques Rene, the barrister defending Dominique Elysee delivered at length a compelling case of British government inaccuracy, expediency and historical wrongdoing. He opened with the matter of dates: beginning with why he wished to challenge the date of 26 April 1969 which marks the rubicon of when automatic British citizenship was granted, as ‘arbitrary and irrational’.

It is well documented that many Chagossians were forcibly exiled before that date thus casting them into a historical limbo or ‘lacuna’ in dates, which means they have been separated from the rest of their families. Furthermore, Mr Elysee missed the qualification for automatic British citizenship by just 6 days, when Mauritius gained independence from Britain.

Mr Rene went on to outline how Mr Elysee’s private life and citizen’s identity has been affected by these unfortunate circumstances ever since, and that a proper assessment had not been made of his individual case, taking into account that his elderly mother and all his siblings have UK citizenship and therefore right of abode in the UK, while he alone does not. He requested that the Court therefore exercise its discretion in this case as the historical wrong of the forced exile of the Chagossian people and their subsequent suffering in exile is a well-established fact. It was a persuasive and reasoned account of the vagaries and illogicalities of the British immigration policy which has wrought the emotional trauma of family separation among countless Chagossian families.

The opposition was brief and concise and stuck to the strict letter of the law: the defendant does not meet the required criteria according to the relevant laws, therefore no discretion applies. He either meets the test or he doesn’t. As he considered no new evidence to have been presented to justify a review, the rejected application for right of abode still stands. Finally he concluded that the refusal to the right of abode cannot therefore be said to be arbitrary or discriminatory.

The judge, who had prefaced his opening remark by saying that he had only read Mr Rene’s submission a short time earlier, seemed to have no hesitation however in rejecting it, stating that the main difficulty is that the court has no power to affect primary legislation and therefore even if there was a historical wrong (and he couldn’t make a ruling on that) only Parliament has the power to change the law or allow flexibility in individual cases. He did concede that it was an ‘unfortunate reality’ that Chagossians have been caught in the repercussions of the setting of these historical dates.

So ended Mr Elysee’s day in court and the hope of the Chagossian community that moral justice and British justice would finally coincide and that today could see a miracle. Mr Rene announced to the dispirited supporters that he would appeal, and a stoical Mr Elysee vowed to continue with his struggle to live with his family, in the country that first exiled his parents from their islands in the Indian Ocean, and now imposes a second exile on their children/grandchildren. So Mr Elysee, his family and supporters re-boarded the coach to Crawley, tired and disappointed but ready to fight another day, as they have had to for so long.

For the past decade or so that I have been a bystander to this cause, I have on numerous occasions felt humbled and deeply impressed by the dignity and spirit of this long-suffering proud community, but today I felt angry too. Justice was not served today in the Royal Court of Justice, even though it was defeated on arcane legal technicalities. It was a performance of legal procedure, rather than the enactment of Justice we had all hoped for. Therefore Parliament must now act to support MP Henry Smith’s imminent Private Member’s Bill which seeks to allow anyone of Chagossian descent to acquire British nationality, and thus end this appalling litany of human rights abuse and racism towards the blameless Chagossian islanders.

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