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British Indian Ocean Territory asylum-seekers granted bail

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The Claimants are asylum seekers of Tamil ethnicity. They include a seven-year-old child. In September 2021, they boarded a boat with the intention of sailing to Canada. Their boat encountered difficulties and was escorted to Diego Garcia, in the British Indian Ocean Territory. Since October 2021, they have been detained in a camp the size of a football pitch, along with 49 others.

The camp is largely surrounded by a fence and is constantly guarded by G4S officers. The Claimants have been told that it would be a criminal offence for them to leave the camp without having a reasonable excuse for doing so.

The Claimants claim that they are detained and that there is no lawful basis for their detention. The Commissioner for the BIOT maintains that the Claimants are not detained but, if they are detained, their detention is necessary.

Following a recent monitoring visit to the camp, the UNHCR concluded as follows:

Diego Garcia is not an appropriate place of residence for asylum seekers and refugees beyond initial emergency reception. The current arrangements do not meet international standards.

In particular, the current policy of holding asylum-seekers at a closed accommodation camp, on a mandatory and indefinite basis, in the absence of a clear legal framework, amounts to arbitrary detention.

Conditions of detention fail to provide the necessary standards of privacy, safety and dignity.

UNHCR is particularly concerned that sixteen children are among those detained, in conditions that are damaging to their wellbeing and development. The detention of children is deeply troubling. UNHCR’s position is that children should not be detained for immigration related purposes, irrespective of their legal/migratory status or that of their parents, and such detention is never in their best interests.

The Claimants applied for bail on reasonable terms, by way of interim relief in their claim for unlawful detention. The Commissioner’s objection to bail was absolute; he maintained that no bail conditions would be sufficient to mitigate the national security risks associated with the Claimants leaving the camp and entering what he described as a “highly sensitive military facility”.

The Claimants relied on evidence that large parts of Diego Garcia are not sensitive at all. For example, in recent months, the island was visited by a group of NFL Cheerleaders, who were there to “entertain the troops”. The Brit Club is a popular venue on Diego Garcia, which sells subsidised alcohol and hosts regular foam parties.

On 22 April 2024, Ms Margaret Obi, Acting Judge of the Supreme Court of the BIOT, ruled in favour of granting the Claimants bail. They will be permitted to leave the camp and access certain other parts of the island, including some of the beaches. For many of the Claimants, it will be the first time they have left their confines in over two and a half years.

The substantive hearing of the Claimants’ claim for unlawful detention will take place on Diego Garcia in July 2024.

Chris Buttler KC and Jack Boswell represented the second to sixth Claimants, instructed by Duncan Lewis.

The seventh to twelfth Claimants were represented by Ben Jaffey KC and Natasha Simonsen, of Blackstone Chambers, instructed by Leigh Day.