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Chris Buttler KC and Jack Boswell successful in newly reconstituted BIOT Court of Appeal

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Photo by Sasar on iStock

On 17 May 2024, the BIOT Court of Appeal sat for the first time in 40 years. It heard and dismissed the Commissioner’s application for leave to appeal against the BIOT Supreme Court’s decision that the trial in VT & Ors v Commissioner for the BIOT should be held on the island of Diego Garcia.

The claim concerns the unlawful detention of 16 Tamil asylum seekers who are currently held by the Commissioner in an encampment the size of a football pitch on Diego Garcia. The decision under challenge was the decision of Ms Margaret Obi, Acting Justice of the BIOT Supreme Court.

Obi J decided to sit in BIOT for three reasons:

  1. First, justice should be done and seen to be done in the BIOT. Public confidence is enhanced by transparency and accountability, and conducting an in-person hearing is an important component of that.
  2. Second, the questions of whether the Claimants are detained and whether such detention is necessary will be assisted by a site visit because of the unique features of the case.
  3. Third, the practical involvement of the Claimants is likely to be enhanced if they can communicate with their legal representatives in person.

The Commissioner sought to appeal that decision on the basis that it is unnecessary and disproportionately costly for the hearing to take place in Diego Garcia.

The BIOT Court of Appeal refused the Commissioner’s application for leave to appeal, on the basis that no arguable ground of appeal arises from Obi J’s decision, noting that she “knew how to perform her task and that she did so diligently” and that “her reasons are both considered and cogent”.

The final hearing 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.

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