Asylum seekers stranded on Diego Garcia win challenge against return to Sri Lanka

Sri Lankan asylum seekers have won their fight not to be forcibly returned to Sri Lanka in a Government climbdown just days before they were due to challenge the decision in the Supreme Court of the British Indian Ocean Territories (BIOT).

Represented by human rights lawyers at law firm Leigh Day and Duncan Lewis, the asylum seekers had been granted a judicial review of the Commissioner’s decisions and it was due to be heard in the Supreme Court of BIOT sitting at the Royal Courts of Justice in London over four days this week.

However, the hearing was called off after the lawyers representing the Commissioner reviewed evidence served and decided to withdraw all the decisions.

The Claimants are part of a cohort of asylum seekers who were intercepted by BIOT Officials when their boat came into distress in the Indian Ocean on 3 October 2021. They were taken to Diego Garcia, which is the largest Island in the BIOT, a UK overseas territory and home to a US military base. It is a separate territory and legal jurisdiction to the UK.

The Claimants, along with others, made claims for international protection. They have remained on BIOT ever since. The BIOT Commissioner devised a Statement on Process for determining protection claims, in BIOT. He did so with the assistance of the UK Government, including the Secretary of State for the Foreign, Commonwealth and Development Affairs, and the Secretary of State for the Home Department.

The BIOT Commissioner refused all the Claimants’ protections claims and issued removal orders which if executed would have resulted in the Claimants forcible removal to Sri Lanka. 

The Claimants, represented by Leigh Day and Duncan Lewis, argued that the Commissioner’s decisions were unlawful and that the procedure adopted was unfair, including for the following reasons: 

• The Commissioner failed to implement a “minded to” process, despite the English common law, which applies in the BIOT, demanding the highest standards of fairness in the context of international protection decisions. The Commissioner didn’t put his concerns to the Claimants about the credibility of their accounts before he made the decisions to forcibly remove them. In one case, he concluded that woman would have the support of her husband or uncle, without giving her the chance to point out that she was separated from her husband and that her uncle was dead.
• The Commissioner unlawfully refused to provide legal aid to the Claimants to enable them to obtain corroborative evidence (such as expert evidence) that might assist their protection claims. In separate proceedings earlier this year the BIOT Supreme Court ruled that legal aid is available in the BIOT. The Chief Justice said there cannot be a “concept of lesser justice” in the British Indian Ocean Territories.
• In reaching his decisions the Commissioner relied on answers given by the Claimants in brief screening interviews following their arrival in 2020, but that interview process was unfair. The interviews were conducted by an individual who had had no training and no assurances of confidentiality were given so the claimants could not be certain that information would not be passed back to the Sri Lankan authorities. They dared not explain why they had fled persecution or why they feared reprisals if they were returned to Sri Lanka. At the same time, the screening interviews were so brief that the claimants could not provide all the relevant information.
• Interviews which took place in summer 2022 which included discussion of torture, domestic violence, sexual abuse and persecution was also very poor, were also unfair for several reasons, including the unlawful denial of legal aid. Again, the interviews were not sufficiently private or confidential, with a number of Claimants reporting that they could hear other interviews at the same time of theirs. The quality of the interviews was also poor, with crucial questions being unasked or inaccurately translated by interpreters.

Following a lengthy and complex legal battle, the BIOT Commissioner has now withdrawn the removal orders and refusal decisions, and will amend the process to address the deficiencies identified in the legal proceedings.

He has now agreed to:

• Amend the Statement on Process to provide for a ‘minded-to’ process;
• Assess each Claimant’s protection claim afresh, the assessment being conducted by reviewers who have had no previous involvement in their case; and
• The BIOT Commissioner has also withdrawn the removal orders for all other asylum seekers on Diego Garcia who will have their claims reassessed under the new process.

Tom Short, Solicitor for the Third to Tenth Claimants at Leigh Day, said: “Our clients are relieved that the BIOT Commissioner has finally agreed to withdraw the unlawful decisions to forcibly return them to Sri Lanka where they face risk of torture and persecution. Claims for international protection deserve the most careful scrutiny and the BIOT Commissioner’s decision-making process fell far short of that standard. It is extraordinary that the Commissioner should have resisted this claim for so long whilst continuing to hold our clients in dreadful conditions on Diego Garcia. It remains our view that the group should be brought to a safe third country, like the UK, to have their claims for international protection fairly and lawfully processed.”

Gina Skandari, Solicitor for the First and Second Claimants at Duncan Lewis Solicitors, said: “We welcome the Commissioner's decision, in response to our judicial review, to overhaul the system in Diego Garcia for determining asylum claims, and withdraw the unlawful decisions produced by it. The position for too long had been that persecuted people faced return to their persecutors because of an unjust system in Diego Garcia, living in limbo and dire conditions, waiting for that dismal day. The Commissioner's decision to change direction, because of our clients' judicial review claims, has borne a heavy human cost.”

The First and Second Claimants were represented by Toufique Hossain, Simon Robinson, Gina Skandari, Ben Nelson, Guy Atoun and Raja Uruthiravinayagan, at Duncan Lewis. Counsel instructed were Chris Buttler KC from Matrix Chambers, and Ali Bandegani from Garden Court Chambers.

The Third to Tenth Claimants were represented by Tessa Gregory, Tom Short, Josh Munt and Blodina Rakovica at Leigh Day. Counsel instructed were Ben Jaffey KC, Jason Pobjoy and Natasha Simonsen of Blackstone Chambers, Alasdair Mackenzie and Antonia Benfield, of Doughty Street Chambers, and Benjamin Bundock of One Pump Court Chambers.