This post is part of a series celebrating Pro Bono Week 2019 in the UK, which runs from 4 to 8 November this year, providing an opportunity to encourage, recognise and celebrate the work of lawyers who volunteer their services for free to those who would not otherwise afford legal advice.
We have a long and proud tradition of engaging in community and pro bono work across the globe; giving back is not just a side note for us, it is one of our core values. We recognise we are fortunate to have opportunities and that we have a duty to share our talent and skills to help others find theirs. To celebrate the contribution of our staff and charity partners in furthering this goal and encouraging others to participate, this Pro Bono Week we are highlighting our pro bono initiatives in this Fragomen Gives Back blog series.
I highlighted in an earlier post our work with the UK Chagos Support Association and Henry Smith MP to provide drafting and legal advice in relation to a Private Members Bill that would address a defect in British Nationality law. Unless this defect is addressed, the children of second-generation Chagossians who have joined their parents in the UK could be under threat of deportation.
Since my original post in March 2018, there have been a few developments.
In February 2019 the International Court of Justice has given its ruling on the UK's separation of the British Indian Ocean Territory from (what was then) Mauritius colony. The Mauritian government argued that its consent to the separation given in 1965 was tainted by coercion. The UK records referenced in the court proceedings confirm that, shamefully, the UK threatened to withhold or delay Mauritian independence should it not agree to the separation.
The United Kingdom's record of this conversation records Prime Minister Wilson having told Sir Seewoosagur Ramgoolam that:
in theory, there were several possibilities. The Premier and his colleagues could return to Mauritius either with Independence or without it. On the Defence point, Diego Garcia could either be detached by order in Council or with the agreement of the Premier and his colleagues. The best solution of all might be Independence and detachment by agreement, although he could not of course commit the Colonial Secretary at this point.
The UK had been determined to obtain consent (including by duress) because it was clear that the deliberate dismemberment of a colony in preparation for independence was unlawful. In 1960 the General Assembly of the United Nations adopted resolution 1514 (XV), the Declaration on the Granting of Independence to Colonial Countries and Peoples. This resolution would be worth quoting in its entirety, but the relevant section is:
... 5. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire...
6. Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.
The ICJ found that:
The process of decolonization of Mauritius was not lawfully completed when that country acceded to independence and that the United Kingdom is under an obligation to bring to an end its administration of the Chagos Archipelago as rapidly as possible.
The UK government has responded by emphasising that this was "not a legally binding judgment." In the face of such a clear factual finding from the court, this position seems hard to maintain.
Where does the ICJ judgment leave the argument for the Nationality Bill? It strengthens and extends it, reaffirming once again that the depopulation of the islands was not only "regrettable," as the UK government has said on many occasions, but unlawful. The Court of Appeal had already confirmed in 2000 (case of R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs  QB 1067 that the British order (the 1971 Immigration Ordinance) excluding the islanders from their homes was unlawful. The ICJ judgement undermines the lawfulness of the separation itself (effected by British Indian Ocean Territory Order 1965 (S.I. 1965/1920)) and the legal basis of any purported administration of the islands. This would include both the 1971 Immigration Ordinance, as well as the subsequent 2004 Order in Council which replaced it.
British Indian Ocean Territory (Citizenship) Bill
Following the government's recent defeat in the Supreme Court, a short prorogation of Parliament took place from 8 to 14 October. This had the effect of stopping any pending legislation, and therefore brought to an end the passage of the Bill. It remains open to the UK government to sort this problem out at any time by including the relevant provisions in a future Immigration Bill once the new Parliament is formed
On an individual level, Fragomen has assisted Jeanette Valentin in regularising the position of her two daughters in the UK; her story has previously been reported in the Guardian. Jeanette's mother was born on Diego Garcia, and had it been possible for her to remain, so would Jeanette. Therefore, although Jeanette is a British citizen, her daughters are unable to claim British nationality as a direct result of the exclusion. Jeanette had been unable to afford the large Home Office fees for making an application to regularise their immigration, until her case came to public attention and she was able to raise 8,000 pounds in donations from sympathetic members of the public. At this point, her eldest daughter had already turned 18. We assisted in making an application on a discretionary basis, and are delighted to report that the Home Office has agreed to exercise discretion in the circumstances of the case, and both Jeanette's daughters have been granted permanent residence in the UK. This removes the threat of deportation and enables them to plan for further study to support their ambitions.
I'm grateful to Fragomen for agreeing to support this work and, in particular Ian Robinson, for connecting us with senior contacts to help resolve the matter with the authorities. I would also like to thank Jeanette for putting her trust in us to handle the case. We wish them all the best for the future.
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