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Human rights lawyers have written to new Foreign Secretary David Lammy to ask him to urgently consider the plight of a group of Tamil asylum seekers stranded on Diego Garcia, the largest island the British Indian Ocean Territory (BIOT) of Diego Garcia and to intervene in a diplomatic row with the US.

The BIOT Supreme Court was due to sit in Diego Garcia this week to hear a judicial review claim that the group is being unlawfully detained on the island, which is used by the US as a military base.

The hearing was abandoned just hours before the judge and the lawyers were due to board a flight to the island, after US government officials informed the BIOT Administration and Foreign Office that Acting Judge Margaret Obi and her party, including lawyers from Leigh Day and Duncan Lewis, would not be given transport, accommodation or food on Diego Garcia.

Now Leigh Day, Duncan Lewis and Wilsons, who together represent the Tamil asylum seekers stranded on the island, have written jointly to Mr Lammy who is currently in Washington for the NATO Summit on his first official trip overseas as British Foreign Secretary.

They ask him to act urgently to avoid the potential for a diplomatic row between the UK and US governments over the refusal by the US to accommodate a British judge to access British territory.

They say the UK Government must ensure that the US Government allows the British Court to conduct its site visit.

They outline the plight of the asylum seekers, including 16 children, who have been detained in inhumane conditions for more than 1,000 days. They arrived on Diego Garcia on 3 October 2021 after they were rescued by two Royal Naval ships when their vessel fell into trouble in the Indian Ocean and now allege they have been unlawfully detained since then by the BIOT Commissioner.

The letter explains that the lawyers believe the BIOT Commissioner is being obstructive and breaching his duty to be open and honest in his dealings with the asylum seekers’ legal team.

It says that in light of intense media coverage around the issue, former Foreign Secretary Liz Truss considered the only option to be to move the asylum seekers to the UK. Instead the previous government authorised spending £39m per annum, around £650,000 per migrant per year, £108,000 a day, to keep the Tamil group indefinitely detained in the BIOT.

The group’s lawyers say the only long-term viable option is for the asylum seekers to be relocated to the UK. The group cannot be returned to Sri Lanka because all individuals have outstanding claims for international protection, apart from one, who the Commissioner accepts cannot be returned to Sri Lanka as it would constitute refoulement, in breach of international law. The other members of the group argue that their forcible return to Sri Lanka would breach the principle of non-refoulement.

After the Diego Garcia hearing was called off, on Tuesday 9 July 2024 a virtual case management conference was held in which Judge Obi directed the British Commissioner to inform her by 15 July whether the US Government will allow the Court to visit Diego Garcia in the week 22 July, so that she can conduct a site visit to the asylum seekers’ camp, a 100m x 140m compound in Thunder Cove where the asylum seekers are currently stuck in limbo.

Ms Justice Obi agreed to hold the judicial review hearing on Diego Garcia so that the Court could conduct a fact-finding site visit to examine whether the asylum seekers are detained and whether there exists on the island other options allowing greater freedom. The court planned to examine the detention facility and the civilian facilities available on the island. Ms Justice Obi also considered it necessary for the hearing to take place on the island so that the asylum seekers could take part in person.

The hearing would have been the first time the asylum seekers would have met their legal representatives in person.

The presence of the asylum seekers is straining international relations between the UK and the US. The migrants have already been granted bail by the British Court (at a hearing in London) and are free to walk around parts of the island at specified times. The US Government has apparently suggested this poses a threat to the security of its military base, but no detail has been provided and these fears are doubted in circumstances where other civilians – including cheerleaders, celebrity chefs, BIOT civil servants and visiting environmental scientists – are permitted to access a wide range of US facilities on the island.

Six of the claimants are represented by Tessa Gregory, Tom Short and Josh Munt of Leigh Day, and by counsel Ben Jaffey KC and Natasha Simonsen of Blackstone Chambers.

Five of the claimants are represented by Toufique Hossain, Simon Robinson, Gina Skandari, Sulaiha Ali, with Ben Nelson, Guy Atoun, Kristen Allison, Jodie Spencer, and Sugani Suganathan of Duncan Lewis, and by counsel Chris Buttler KC and Jack Boswell of Matrix Chambers

One of the claimants is represented by Adam Straw of Wilsons Solicitors, and by counsel Helen Law of Matrix Chambers.

Simon Robinson, solicitor at Duncan Lewis said:

“The US Government has prevented the judicial branch of the British Indian Ocean Territory Government from entering the British Indian Ocean Territory.  Last week, on 4 July, the day on which the US celebrates its declaration of the “self-evident” truth that all people are created equal, with unalienable rights, including, “life, liberty and the pursuit of happiness”.

“In the same week, the US Government prevented our clients from enforcing their right to liberty, by blocking the Court from hearing their claims for unlawful detention. They remain detained, as they have been for more than 1,000 days, in rat-infested tents, behind a wire fence, in a camp the size of a football pitch.

“Our clients are being detained by the British Indian Ocean Territory Government, apparently at the behest of the US Government. This is costing the UK taxpayer £108,000 per day. We hope that the new Foreign Secretary, David Lammy, will swiftly resolve this issue, which is burdening the UK taxpayer, straining international relations and harming the men, women and children who are being detained in this rat-infested camp.

“We trust that the US Government will now allow the British Court to visit Diego Garcia in the week of 22 July 2024 for the site visit that the Court has ordered.”

Adam Spray, a solicitor at Wilson Solicitors said:

“It is devastating news for those detained on Diego Garcia that their long awaited day in court has been pushed back yet further. The denial of their access to justice is unconscionable and exacerbated by the miserable conditions in which they are held.

“It is our hope that we and the court are allowed access to the island as soon as is possible, so that this matter can be resolved and the rule of law can prevail.”

Leigh Day solicitor Tom Short said:

“That the British Indian Ocean Territory Supreme Court has been prevented from sitting in its own territory on Crown land by its rental tenant the United States, is an extraordinary affront to the rule of law. The Supreme Court of the BIOT has previously held that “There cannot be any concept of ‘lesser justice’ in the BIOT”. It is apparent from the United States’ boycott of this hearing, that there is indeed “lesser justice” in the BIOT. 

“We have today written to the new Foreign Secretary David Lammy to do everything in his power to restore order and the rule of law to the BIOT as soon as possible.  We understand that on the US side the matter currently lies with the Pentagon. We trust that Foreign Secretary will raise this with the UK’s NATO allies in Washington today to ensure swift resolution of this outrageous unseating of the Court of the BIOT.”

NOTES

The British Indian Ocean Territory (BIOT) is a British Overseas Territory governed by a British Commissioner on behalf of the King. It has its own Supreme Court with British Judges. The main island of the territory, Diego Garcia, houses an American military base.

The Thunder Cove camp is run by the BIOT Administration and its contractors, including G4S. From the outset, the asylum seekers were told they must remain within the camp. In July 2023 the Commissioner’s representative, Commander Colvin Osborn purported to make a Restriction of Movement Order that sought to make it a criminal offence for the asylum seekers to move beyond the camp without a reasonable excuse. The camp was guarded around the clock by US military before G4S contractors took over on 12 March 2022.

The UNHCR reported on the Camp in February 2024, finding that:

• Diego Garcia is not an appropriate place of residence for asylum seekers and refugees beyond initial emergency reception. The current arrangements do not meet international standards.
• In particular, the current policy of holding asylum-seekers at a closed accommodation camp, on a mandatory and indefinite basis, in the absence of a clear legal framework, amounts to arbitrary detention.
• Conditions of detention fail to provide the necessary standards of privacy, safety and dignity.
• UNHCR is particularly concerned that 16 children are among those detained, in conditions that are damaging to their wellbeing and development. The detention of children is deeply troubling. UNHCR’s position is that children should not be detained for immigration related purposes, irrespective of their legal/migratory status or that of their parents, and such detention is never in their best interests.
• Allegations of sexual assault and harassment of women and children by other asylum seekers indicate ongoing risks of gender-based violence (GBV). Arrangements for GBV prevention, mitigation and response require significant improvement.
• The combination of long-term uncertainty about the future, significant delays in finalising decisions on the international protection needs of camp residents and lack of effective counselling on the process, and the use of and conditions of detention are contributing to high levels of emotional distress and mental health conditions among asylum seekers and refugees. UNHCR is concerned that there is a significant risk of suicide and attempted suicide and further incidents of self-harm.
• Primary health care services, including mental health support, are available and of high quality, however the lack of preventive care and referral options for non-acute but potentially severe conditions is of concern.

Claimant 1 is represented by Adam Spray of Wilsons, instructing Helen Law from Matrix Chambers

Claimants 2-6 are represented by Toufique Hossain, Simon Robinson, Gina Skandari, Sulaiha Ali, Ben Nelson, Guy Atoun, Kristen Allison, Jodie Spencer, and Sugani Suganathan, instructing Chris Buttler KC and Jack Boswell from Matrix Chambers.

Claimants 7-2 are represented by Tessa Gregory, Tom Short, Claire Powell, with Josh Munt, instructing Ben Jaffey KC and Natasha Simonsen from Blackstone Chambers.

Duncan Lewis Solicitors

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