The Supreme Court of the British Indian Ocean Territory (“BIOT”) has today held that asylum seekers on the island were unlawfully imprisoned for more than three years.
The Claimants arrived on Diego Garcia after their fishing 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 the asylum seekers could not be returned to Sri Lanka, as this would have breached the international law principle of non-refoulement. The asylum seekers include 16 children.
For three years, they were confined to a camp the size of a small cricket field, which the UNHCR described as “arbitrary detention” in conditions that “fail 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.
Following a trial that took place on Diego Garcia, the 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).
Further, the Court agreed with the Claimants that their detention was unnecessary and unlawful:
“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.” (§88)
Describing the evidence of the former Acting Commissioner, the Court held that “she appeared to have only a limited appreciation of the fundamental importance of liberty” (§74).
Earlier this month, the UK Government transferred most of the Claimants to the UK, effectively conceding a separate claim for judicial review in the English High Court. The Court will now proceed to assess the sum of damages that the Commissioner must pay for falsely imprisoning them.
Chris Buttler KC, Helen Law and Jack Boswell acted for the Claimants, instructed by Duncan Lewis and Wilsons.
The judgment can be found here.
Related link: Asylum seekers brought to the UK after three years stranded on Diego Garcia
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