The Court of Appeal of the British Indian Ocean Territory (BIOT) has today upheld the BIOT Supreme Court’s grant of liberty to 47 asylum seekers who have been stranded on the British island of Diego Garcia for over 1,000 days.
Diego Garcia
Diego Garcia is the largest island of the Chagos Archipelago, which currently forms part of the BIOT (although the UK Government has entered negotiations about returning the territory to Mauritius, after the International Court of Justice ruled that the continuing British occupation of the Chagos islands is illegal). Part of Diego Garcia is host to a joint UK-US military facility.
Asylum seekers
In October 2021, a group of Tamil asylum seekers bound for Canada on a fishing boat ran out of fuel 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) accepts that he cannot return them to Sri Lanka, as to do so would breach the international law principle of non-refoulement.
Since then, the asylum seekers have been confined to a camp the size of a small cricket field, which the UNHCR has described as “arbitrary detention” in conditions that “fail to provide the necessary standards of privacy, safety and dignity”. The asylum seekers include 16 children, who the Commissioner himself accepts are suffering serious harm owing to their confinement in the camp on Diego Garcia.
Claims for habeas corpus and unlawful detention
The asylum seekers have made claims for habeas corpus and judicial review of their detention. Those claims were due to be determined at a hearing on Diego Garcia in July 2024. However, the hearing was cancelled hours before flights were due to take off because the US Government threatened to withhold food and water from the judge and the Claimants’ lawyers during their time on Diego Garcia. A final hearing is now due to take place in September 2024.
Bail
11 of the asylum seekers were granted a limited form of bail in April 2024. After the US blocked the hearing of their claim from going ahead in July 2024, 47 of the asylum seekers applied to the BIOT Supreme Court for “bail” by way of interim relief in their claims for unlawful detention. The US Government, although not a party to those proceedings, opposed that application on the basis of purported security concerns.
The BIOT Supreme Court granted bail, allowing the asylum seekers to leave the camp and access a highway, various beaches, and a nature conservation area.
The appeal
The Commissioner appealed against the grant of bail, including on the basis that the judge had given insufficient weight to the opposition of the US Government.
The BIOT Court of Appeal dismissed the appeal, finding that the judge had regard to the US Government’s objections and was entitled to decide that they were outweighed by compelling reasons in favour of bail – the US Government does not have a trump card or a veto on the Court’s power to grant liberty.
What next?
The Commissioner has recommended that the UK Government relocates all of the asylum seekers to the UK as a matter of urgency. The Foreign Secretary has accepted that recommendation in respect of most of the asylum seekers and is considering his position in respect of the others. It is for the Home Secretary to decide whether to grant them permission to enter the UK.
The BIOT Court of Appeal concluded its judgment with the following observations:
The lack of progress in any of the legal remedies available to the Respondents occurs in the extraordinary context of a unanimity of opinion of the Commissioner, the Respondents and the US that all the Respondents should leave Diego Garcia as a matter of urgency. The Commissioner appears to have come to this view after his own safeguarding lead found in June 2024 that the children in the Camp “are at immediate risk of harm” and that the Camp is “in crisis”.
It is not for this court to require that action is taken to resolve matters, still less to propose possible solutions. However, we wish to record our very serious concern regarding the welfare of all the migrants on Diego Garcia and, in particular, the children.
Jack Boswell and Zoe McCallum represented a group of the asylum seekers, instructed by Duncan Lewis. The other asylum seekers were represented by Ben Jaffey KC of Blackstone Chambers, instructed by Leigh Day.
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