The Judicial Committee of the Privy Council has today refused an application by the Commissioner for the British Indian Ocean Territory (“BIOT”) for permission to appeal against the judgment of the BIOT Court of Appeal, which in turn upheld the judgment of the BIOT Supreme Court that Tamil asylum seekers were unlawfully detained on Diego Garcia by the Commissioner for three years. The Committee held that the Commissioner’s application was “wholly devoid of merit”.
The Claimants arrived on Diego Garcia after their boat, which was bound for Canada, foundered in the Indian Ocean. They were escorted by the Royal Navy to Diego Garcia, where they claimed asylum. The Commissioner for the BIOT (a UK civil servant who governs the territory) accepted that they could not be returned to Sri Lanka or India, as this would have been contrary to international law.
For three years, the Claimants (including children) were confined to a camp the size of a small cricket field, which the UNHCR described as “arbitrary detention” in conditions that “failed to provide the necessary standards of privacy, safety and dignity”.
The Commissioner argued that the Claimants were not detained and that the restrictions on their liberty were lawful and necessary to protect the security of the US–UK military facility on Diego Garcia.
In December 2024, following a trial that took place on Diego Garcia, the Supreme Court held that the Claimants had been detained: “it is unsurprising that the Claimants feel as if they are in a prison; that is exactly what it is, in all but name” (§81). The Supreme Court found that their detention was unnecessary and unlawful. The Commissioner appealed against that judgment to the BIOT Court of Appeal.
On 16 December 2025, the Court of Appeal dismissed the Commissioner’s appeal on all grounds. It confirmed that the conditions imposed on the Claimants amounted to detention as a matter of law; that the detention was direct and intentional; and that neither the doctrine of necessity nor the Restriction of Movement Orders promulgated by the Commissioner provided a lawful basis the Claimants’ detention. The Court of Appeal reaffirmed the fundamental common law principle that physical liberty may be curtailed only with clear legal authority.
Jack Boswell, Chris Buttler KC and Helen Law KC acted for the Claimants, instructed by Duncan Lewis, Wilsons, Bindmans, and the Joint Council for the Welfare of Immigrants.