The Chief Justice of the British Indian Ocean Territory (BIOT) has today ruled both that there is a common law right to legal aid in Diego Garcia and that certain provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 apply in the Territory.
The Claimants are among a group of 89 Sri Lankan asylum seekers, including children, who fled India by boat in September 2021. In October 2021, they were rescued by two British Royal Navy vessels when their boat fell into distress in the Indian Ocean. The Navy took them to a secure compound in nearby Diego Garcia (a British Overseas Territory), where they have remained ever since. They claimed asylum and, following a delay of over a year, and a period on hunger strike, the BIOT Commissioner eventually issued decisions that removing the Claimants back to Sri Lanka would not breach the principle of non-refoulement under international law.
The Claimants are impecunious, have no resources and do not speak English. When eventually granted access to mobile phones, their relatives made contact with Duncan Lewis and Leigh Day, whom they instructed to challenge the non-refoulement decisions by way of judicial review. For that purpose, their lawyers made applications for legal aid on their behalf – but the BIOT Commissioner refused to determine them, contending that there was no right to legal aid on BIOT. The Supreme Court of the BIOT today held that there is a right to legal aid in BIOT on the basis that both (a) LASPO applies by virtue of a BIOT Ordinance applying “applicable and suitable” English law to the territories, and (b) as a matter of common law.
The Supreme Court emphasised that “there cannot be any concept of “lesser justice” in BIOT”; that “the need for a system of legal aid for those who would otherwise be unable to access justice is the same [as in England]”’ that “it must not be forgotten in this case that state may seek to use coercive power against individuals in returning them forcibly” and “the rule of law cannot be set aside because of administrative difficulties or inconvenience”.
Chris Buttler KC, Zoe McCallum and Roisin Swords Kieley acted for the First and Second Claimants, instructed by Duncan Lewis. Ben Jaffey KC and Natasha Simonsen acted for the Third to Tenth Claimants, instructed by Leigh Day.