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Chagos Islands' former residents vow to fight on after Supreme Court defeat

Former residents of the Chagos Islands who were removed from their homeland more than 40 years ago have vowed to fight on after a narrow defeat at the UK's highest court.

They went to the Supreme Court t o contest a 2008 decision by the House of Lords which dashed their hopes of returning to their native islands in the Indian Ocean, but their appeal was dismissed on Wednesday by a majority of three to two.

A panel of five justices was told that it relied heavily on a 2002 feasibility study into resettlement, which concluded that the costs of long-term inhabitation of the outer islands would be prohibitive and life there precarious.

During the appeal, Edward Fitzgerald QC, for Chagossian leader Olivier Bancoult, said it was clear that, because of non-disclosure of relevant materials about the genesis and reliability of the study, there had been "a significant injustice" and the 2008 judgment should be set aside.

It was accepted that the non-disclosure of the documents was "not intentional and did not involve any bad faith".

But, Lord Mance, together with Supreme Court president Lord Neuberger and Lord Clarke concluded, after reviewing the 2008 ruling and the undisclosed documents, that there was "no probability, likelihood, prospect or real possibility" of a different outcome.

The court said that, in any event, circumstances had changed in the light of a 2014-2015 feasibility study and confirmation by the Government that resettlement was not precluded by a Marine Protected Area around the Islands.

It would now be open to any Chagossian to mount a fresh challenge in the light of the findings of the latest study as an alternative to further lengthy litigation.

Lady Hale who, with Lord Kerr dissented, said the documents should have been disclosed as they were obviously relevant to the issues.

"Not only that, the Government was asked for them many times and denied their existence. This is scarcely a good advertisement for the quality of government record keeping.

"No doubt files are sometimes transferred to the Treasury Solicitor for litigation purposes and their existence forgotten. But this should not happen in any well-regulated system of file-keeping.

"It was deeply unfair to the applicant, and to the court, that these documents were not disclosed.

"This was all the more unfair, given the sorry treatment of the Chagossians in the past and the importance of what was at stake for them."

She added: "To my mind, it is quite obvious that they might have made a difference and we certainly cannot be satisfied that they would not."

Ultimately, she said, it was a case about justice.

"Justice to my mind demands that the applicant be given a fair chance to satisfy this court that the decision to re-impose the denial of the islanders' right of abode was not a rational one."

Outside court, Mr Bancoult, who was four when he was exiled, said: "It is impossible to accept that other people can live and work on our birthplace while we are not able. We will not give up. Chagossians will be on Chagos very soon."

He said he hoped the Government would "shoulder the responsibility to our people as soon as possible".

"It's time for the UK Government to put an end to all our suffering. We have not lost all the battle. It's not the end of the road. Our case is a just case.

"We are asking for our dignity as people and fundamental rights as human beings."

Families were forced to leave the islands in the 1960s and 1970s to make way for a United States Air Force base on the largest island, Diego Garcia. The last residents of the British colony were removed in May 1973.

Courts later ruled that the Chagossians could return to 65 of the islands, but not Diego Garcia.

In 2004, the Government used the royal prerogative to nullify the rulings but this was overturned by the High Court and Court of Appeal. The Government then went to the House of Lords to argue that allowing the islanders to return would seriously affect defence and security.

A further legal challenge by Chagos Islanders about their fishing rights is expected to reach the Supreme Court next year.

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