Supreme Court finds Tamil asylum seekers were unlawfully detained on Diego Garcia
The Supreme Court of the British Indian Ocean Territory (BIOT) has found that Tamil Sri Lankan asylum seekers held for over three years on Diego Garcia were unlawfully detained.
Posted on 16 December 2024
Ms. Justice Obi, Acting Judge of the BIOT Supreme Court, delivered the ruling following a judicial review hearing into claims of unlawful detention and habeas corpus - the law under which people have a right to be brought before a judge or into court unless lawful grounds are given for their detention.
The judgment declared that all 61 individuals, including 16 children, were unlawfully detained from their arrival on the US military base in October 2021 until they left for the UK earlier this month.
The court held that the claimants had been detained and agreed with the claimants that their detention was unnecessary and unlawful. The judgment states:
“The Commissioner has not come close to establishing that it is necessary for the Claimants to be detained. There is no evidence that greater access to the parts of the island (that are not militarily sensitive) will cause immediate and/or significant risk of harm and there are reasonable alternative ways of securing the safety and security of the facility.”
Lawyers at law firm Leigh Day, who represent six claimants, have welcomed the decision, which they described as a vindication of their clients’ fundamental rights and a rebuke of the BIOT Administration’s handling of the case.
The group had been stranded on the island of Diego Garcia since October 2021. They were rescued by a British Navy vessel after their boat, bound for Canada, got into trouble in the Indian Ocean. They had been fleeing persecution in Sri Lanka and claimed asylum on their arrival.
Their situation, living in tents on a fenced and guarded compound, became so abhorrent that there were recurring attempts at suicide and self-harm by 20 members of the group. For the first six weeks they had no means of communication with the outside world.
A judicial review hearing was held in September 2024 on Diego Garcia, arguing that the group was being detained unlawfully. Before judgment was given and prior to a UK judicial review that was due to be heard this month, government lawyers confirmed in November that the government intended to transfer all of the group to the UK.
The group finally arrived on flights from Diego Garcia and Rwanda on 2 and 3 December 2024. The court will now proceed to assess the sum of compensation that the BIOT Commissioner must pay for falsely imprisoning them.
Leigh Day solicitors Tom Short, Tessa Gregory, Claire Powell and Josh Munt, represent the seventh to twelfth claimants, as per the judgment. Counsel instructed by Leigh Day are Ben Jaffey KC and Natasha Simonsen of Blackstone Chambers.
Leigh Day solicitor Tom Short said:
“Our clients have prevailed. The court has held that our clients, including children, were unlawfully detained without reasonable excuse for the entire time they were held captive on Diego Garcia. The judgment is a deeply damning indictment of the BIOT Administration’s handling of the situation.
“The BIOT’s troubling failures are characterised by the court’s finding that one (now former) Deputy Commissioner ‘appeared to have only a limited appreciation of the fundamental importance of liberty’.
“This judgment is not only a vindication of our clients’ rights but a triumph for the rule of law in the British Overseas Territories. Such an affront to fundamental rights should never have happened and in due course this travesty of administration must be looked at in full.”
Background
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Leigh Day took up the asylum seekers’ case in early 2022 after human rights team partner Tessa Gregory was alerted by the Asia Pacific Refugee Rights Network to the plight of 89 Sri Lankan adults and children who had been detained for five months on a military base more than 1,500 miles from the mainland in the middle of the Indian Ocean.
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Their Diego Garcia casework involved applications for judicial review to address the circumstances faced by the group on the island, obtain legal aid and to hold to account the governor of BIOT.
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In 2022, Leigh Day wrote to the Foreign Secretary, the Home Secretary and the BIOT Commissioner stressing that holding the group “in legal limbo on a military base with extremely limited communication to the outside world is plainly unacceptable”. The group were eventually provided with access to an iPad so that they could communicate with the outside world, particularly with their lawyers.
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Subsequent correspondence pointed out that the group’s situation was worse than if they were prisoners and urgently sought action after some of the group, despairing, resorted to hunger strike in May 2022. The Government belatedly set up a process to decide the group’s asylum claims in June 2022, which lawyers argued was procedurally unfair.
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In the months that followed their arrival, some of the refugees including an 18-month-old baby left Diego Garcia by boat and subsequently landed in the French territory of La Reunion following lengthy journeys on the high seas. Lawyers had grave concerns about the legality of BIOT/UK actions in facilitating dangerous onward journeys by boat. They said BIOT was bound by obligations in Safety of Life at Sea (SOLAS).
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Some of the group were transferred to Rwanda in March 2023 for emergency medical attention after attempts to take their own life. A number of them remained in Rwanda until their transfer to the UK this week.
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In May 2023 the BIOT Court ruled that the Government had, since their arrival on October 2021, unlawfully denied the group access to legal aid support.
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In September 2023 the Government withdrew a decision to forcibly return members of the group to Sri Lanka days before they were due to defend a process beset by procedural unfairness in the BIOT Supreme Court.
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In April 2024 the legal teams were able to convince the courts that the UK Children Act applied in BIOT, meaning the Commissioner had to provide support to safeguard the children on the island from the risk of significant harm.
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In June 2024 BIOT Commissioner Paul Candler wrote to Foreign Secretary David Cameron and then wrote to Foreign Secretary David Lammy in July urging action to remove the asylum seekers. No action was taken, and the Commissioner resigned his post.
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Eventually, in September 2024 a judicial review hearing was held on Diego Garcia, arguing that the group was being detained unlawfully. The hearing had initially been due to take place in July 2024, but the Court was blocked from arriving on Diego Garcia by the US Government.
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Before judgment was given and prior to a UK judicial review that was due to be heard in December, government lawyers confirmed in November 2024 that the Government intended to transfer all of the group to the UK.
Tessa Gregory
Tessa is an experienced litigator who specialises in international and domestic human rights law cases
Tom Short
Tom Short is a senior associate solicitor in the human rights department.
Claire Powell
Claire is a associate solicitor in the international department, she is currently working on emission claim cases
Josh Munt
Josh is an associate solicitor in the human rights department at Leigh Day