Legal Opinion: Court to decide on families' right to live on Diego Garcia

For hundreds of exiled families of the Chagos Islands British justice is their last hope. Robert Verkaik, Law Editor, considers their case for repatriation

The Chagos islanders' 40-year legal battle to win the right to live in their own country returned to the British courts this week.

Evicted from their Indian Ocean territory in the 1960s and 1970s by the British so that the United States military could build a major strategic airbase on Diego Garcia, the former islanders brought their case to the High Court in London.

In May last year the group thought they had finally won their case when two judges condemned as "repugnant" the British government's decision to "exile a whole population" from the Indian Ocean on the basis that it was necessary for "peace, order and good government".

But the British government has decided to appeal that decision on the grounds that the ruling raises important constitutional concerns about the right of a sovereign state to decide what is in the national interest.

At the start of an estimated five-day appeal hearing, John Howell QC, for the Foreign Secretary, argued on Monday that the High Court judges had "erred in law" and "misdirected" themselves when reaching their decision.

Mr Howell told the appeal judges: "This appeal raises issues of constitutional law of great importance." He said those issues concerned "the constitutional relationship between this country and British overseas territories". If the approach of the High Court was correct it represented a "revolutionary change in the constitutional law involved, which will affect all British overseas territories".

The QC said: The Divisional Court has asserted a jurisdiction to determine what considerations Her Majesty may take into account and the purposes for which she may so legislate. No court has previously asserted such a jurisdiction so far as I am aware. The Divisional Court has also asserted that Her Majesty may not legislate for such a territory to promote the interests of the UK and in particular its defence and security interests.

It is a precedent that the British government wish to remove from the statute book as soon as possible. And one, says Mr Howell, that is hard to reconcile with Britain's remaining interests in territories overseas.

But the islanders contend that the British government owes them a duty of care which includes the right to resettlement.

In last year's decision Lord Justice Hooper and Mr Justice Cresswell agreed and ruled that the interests of the islanders from the British Indian Ocean Territory (BIOT) had been ignored. They said that orders made under the royal prerogative to prevent their return were irrational and unlawful.

The then Foreign Secretary Robin Cook said there would be no appeal and a "feasibility study" would be conducted into the possibility of their return.

The US military authorities expressed fears that any attempt to resettle any of the islands would severely compromise the security of Diego Garcia - the island used to launch bombing missions in both Iraq and Afghanistan.

But in June 2004 the Government made an Order in Council under the Royal Prerogative declaring that no person had a "right of abode" in the British Indian Ocean Territory. For the Chagossians it meant that they could not go back after all.