Court to sit in Diego Garcia to hear asylum seekers’ unlawful detention claims

The judge and legal representatives will travel 6,000 miles to the island of Diego Garcia in the British Indian Ocean Territory (BIOT) to hear claims by Tamil Sri Lankan asylum seekers that they are being unlawfully detained

The asylum seekers, held on Diego Garcia since 3 October 2021 after being rescued at sea, include 59 individuals with 16 children. They are confined in a guarded compound the size of a football field, living under G4S guard in communal tents.

The judicial review hearing is scheduled for early July and will span two days, following a one-day site visit by the Court to the asylum seekers' encampment and civilian facilities on the island.

Legal teams from Leigh Day and Duncan Lewis will travel from London to attend the hearing and meet their clients in person for the first time since representation began in 2021.

In April, the BIOT Supreme Court granted bail to the asylum seekers involved in the legal action, allowing them to leave the encampment for the first time in 32 months. They can now walk along a defined route with beach access. The Commissioner initially opposed the bail application, citing US security concerns, but it was revealed in court that the US had requested a risk assessment, which the Commissioner failed to provide. No security issues have arisen since the asylum seekers gained limited freedom.

The BIOT Commissioner’s appeal to prevent the judicial review from being held in BIOT marked the first BIOT Court of Appeal session in 40 years.

Justice Obi decided to conduct the trial in BIOT for several reasons:

1. Transparency and Public Confidence: Holding the trial in BIOT ensures that justice is seen to be done, enhancing public confidence through transparency and accountability.
2. Case-Specific Benefits: A site visit will aid in understanding whether the Claimants are detained and if such detention is necessary due to the unique features of the case.
3. Practical Involvement: In-person communication with legal representatives will likely enhance the Claimants' involvement in the proceedings.

Diego Garcia, part of the Chagos Archipelago, is one of the world’s most remote islands, hosting a significant US military facility. A full civilian infrastructure supports military personnel and contractors, including shops, a post office, bars, night clubs, and sports facilities. The asylum seekers have been denied access to these amenities.

Tom Short and Tessa Gregory from Leigh Day, along with Josh Munt, represent the seventh to twelfth Claimants. Ben Jaffey KC and Natasha Simonsen of Blackstone Chambers are counsel for Leigh Day. Chris Buttler KC and Jack Boswell, instructed by Duncan Lewis, represent the second to sixth Claimants.

Tom Short stated: "Our clients welcome the Court of Appeal’s robust dismissal of the Commissioner’s attempt to overturn the earlier decision of the BIOT Supreme Court to sit in the Territory to hear their claims for unlawful detention and habeas corpus. Since their arrival on Diego Garcia, our clients have been confined to a small area of the island under dubious security justifications. We have been denied in-person access to our clients by the BIOT Commissioner. The UNHCR, during a monitoring visit in November 2023, unequivocally found that the asylum seekers are detained in conditions that do not meet international standards and are damaging to the children’s wellbeing and development. The UN strongly recommended urgent relocation for all asylum seekers and refugees from Diego Garcia."