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This month marked a significant double victory for Duncan Lewis in their representation of a group of Tamil asylum seekers stranded on the British Indian Ocean Territory (BIOT).

The asylum seekers, taken to the territory in October 2021, successfully secured a limited form of bail on 22 April 2024, which granted access to the DG1 highway and nearby beaches.

The claimants, including a seven-year-old child, challenged their detention on Diego Garcia through bail proceedings as part of their legal action.

Despite the bail order, the Commissioner attempted to prevent the claimants from leaving the camp, citing US objections on “security grounds.” However, the BIOT Supreme Court refused the application to stay the bail order, allowing the claimants to leave the camp and safeguarding their right to liberty.

Judge Margaret Obi also ordered the Commissioner to pay the claimants’ costs on an indemnity basis, reinforcing the necessity of adherence to legal processes.

The Bail Proceedings

On 2 April 2024, 12 Claimants, including a seven-year-old child brought an application for interim relief, in the form of an application for Bail, as part of proceedings challenging the lawfulness of their detention on Diego Garcia issued on 18 December 2023. The Commissioner contends that the Claimants are not detained but, in the event they are, their detention is necessary and thus lawful.

Following a monitoring visit to the territory, the UNHCR concluded that “the policy of holding asylum seekers on a mandatory and indefinite basis, in the absence of a clear legal framework, amounts to arbitrary detention” and that “conditions of detention fail to provide the necessary standards of privacy, safety and dignity” for the Claimants.

A hearing to determine this application was held on 15 April 2024. In this hearing, the Claimants presented evidence that large parts of Diego Garcia were not as sensitive as contended by the Commissioner (including videos from NFL Cheerleaders visiting to “entertain” US forces. The Court was also presented with videos of the “Brit Club” a venue on Diego Garcia, which hosts “foam parties” and sells subsidised alcohol.

In an order delivered ex tempore on 22 April 2024 and sealed on 23 April 2024, Ms Margaret Obi, judge of the Supreme Court of the Indian Ocean Territory, granted a  limited form of bail to 12 Claimants represented by Duncan Lewis and Leigh Day respectively. This order authorized the Claimants to access a specific path out of the camp (referred to as the DG1 highway), and to visit the beaches adjacent to DG1.

The Application to Stay the Bail Order

On 24 April 2024, the Commissioner informed the Claimants that he could not facilitate access to the areas in the Bail Order. The Claimants were prevented from leaving the camp by the Commissioner and his representatives, who organized a convoy of military vehicles to prevent the Claimants from enjoying their right to liberty. On 26 April 2024, the Defendant made an urgent application to stay the bail order, citing that the US had opposed the claimants exit from the camp on ‘security grounds.’

The Court ordered a full and candid explanation as to the Commissioner’s lack of compliance with the bail order by 29 April 2024. The Commissioner contended that the issue centred on the US’ concerns about the Claimants. In disclosure provided on 30 April 2024 however, it became clear that the Commissioner had instituted a plan to facilitate access to bail, and had openly admitted that he had no legal power to stop the claimants leaving the camp. Subsequently, 5 of the Claimants left the camp on 2 May 2024, and some of the Claimants were able to leave the Camp on 3 May and 4 May respectively with no incidents occurring. Nonetheless, the commissioner maintained his application for a stay.

The Supreme Court of the Indian Ocean Territory heard oral arguments in the morning of the 4 May 2024, after which Judge Obi delivered a judgment ex tempore refusing the stay application and ordering that the Defendants pay the Claimants costs on the indemnity basis for the application.

Obi J determined that the Commissioner had provided ‘no good or sufficient reason” to depart from the bail order, and the application was in fact an attempt to relitigate the terms of the order sealed on 23 April 2024. Further to this, the Claimants offered to the court a number of alternative routes to access DG1 (if the original route did not prove feasible due to US objection). In response the Court amended the order to allow the commissioner to facilitate access to DG1 along 3 separate routes, and provided that access could be provided through any reasonable means (including by vehicle).

This represents a significant victory for the Claimants, who have first been able to secure a degree of freedom after over 2 years held in camp which they contend is an ‘open prison’, while events such as Foam Parties (as the court was shown) occur just 5 miles away. By succeeding in preventing the order being stayed, they have been able to ensure that their right to liberty, though limited, has been safeguarded.

A copy of the Bail Judgment can be accessed here.

The Judicial Review

A substantive hearing to determine the lawfulness of the Claimants Detention is due to be heard on Diego Garcia in July 2024.

The fact that the hearing is taking place on the territory itself is rare. This has resulted from a joint application made by the claimant’s representatives, which was heard on 16 February 2024. The Commissioner resisted this application.

In a judgment delivered ex-tempore on 19 February 2024, the judge directed in-principle that the hearing should take place on the territory. In doing so, she cited three reasons, namely that “justice should be done and seen to be done on BIOT” and given that there is a central dispute as to the fact of detention the court would be assisted by a site visit due to the unique features of the case. Lastly, it was said that the claimants are able to be better involved if they can communicate with their legal representatives in person.

The Commissioner sought leave to appeal this decision, which was refused by the BIOT Supreme Court on 11 April 2024. The Commissioner has renewed this application to the BIOT Court of Appeal, whose decision remains pending.

Claimants 2-6 are represented by Toufique Hossain, Simon Robinson, Guy Atoun, Gina Skandari, Kristen Allison, Sugani Suganthan and Ben Nelson, of the Duncan Lewis Public Law team. Counsel Instructed were Chris Buttler KC and Jack Boswell of Matrix Chambers

Claimants 7-12 are represented by Leigh Day, instructing Ben Jaffey KC and Natasha Simonsen, of Blackstone Chambers.

Duncan Lewis Solicitors

Duncan Lewis has the leading public law and immigration practice in the UK. The team frequently takes on and successfully brings challenges in some of the most high profile cases in the UK, including in relation to the Rwanda plan and Manston House. The company was recently crowned Law Firm of the Year 2024 at the LexisNexis awards, and noted for its commitment to providing justice for all.

Duncan Lewis is renowned for its exceptional legal services and commitment to justice. The company employs a team of highly skilled solicitors offering top-tier representation in 25 fields of law, and ranked as top tier by the Chambers and Partners and the Legal 500 legal guides, and as one of the top 250 law firms in the country by the Times.