UK Government Exploring Options to Bring Asylum Seekers Detained in Diego Garcia to the UK (23 July 2024)

In a bail and directions hearing taking place on 23 July 2024 before the Supreme Court British Indian Ocean Territory (“BIOT”) it has been revealed that the BIOT Commissioner has made formal requests to the UK Government to bring what he describes as “the most vulnerable migrants” to the UK.

The legal matter concerns a Judicial Review claim brought by a group of Sri Lankan Tamils that have been confined to an encampment known as Thunder Cove in the remote island of Diego Garcia since October 2021 challenging their unlawful detention on the remote island. All the Claimants are Asylum Seekers with pending claims for international protection, bar one, who has had their protection claim accepted by the Commissioner.

In a formal submission to the then Minister for the Overseas Territories and the then Foreign Secretary dated 26 June 2024, which was disclosed to the BIOT Supreme Court in the ongoing public law proceedings on 23 July 2024, it was revealed that the Commissioner for the BIOT recommended that:

“the then Foreign Secretary should write to the then Home Secretary recommending that the families with children, those migrants who had received positive protection [decisions] and one particularly vulnerable adults with mental health problems (a total of 39 migrants) should be transferred to the UK”

On 11 July 2024, Human rights lawyers representing the asylum seekers, namely Duncan Lewis Solicitors, Leigh Day and Wilsons Solicitors, wrote 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 and to intervene in a diplomatic row with the US.

On 12 July 2024, a statement from the Commissioner referred to in the public hearing on 23 July 2024 indicates that the new Foreign Secretary agreed on 12 July 2024 to write to the Home Secretary to request that she consider the case for transferring to the UK the 39 migrants, which he did on 16 July 2024. The Home Secretary has yet to make determinative actions in this respect to-date.

The BIOT Supreme Court was due to sit in Diego Garcia in the week starting 9 July 2024 to hear the Judicial Review challenge brought by the migrants, with the BIOT Supreme Court judge, the lawyers for both parties and media personnel to be in attendance. However, 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 Duncan Lewis, Leigh Day and Wilsons Solicitors, would not be given transport, accommodation or food on Diego Garcia.

Both parties and the BIOT Supreme Court are currently discussing the possibility of scheduling an in-person hearing for the Judicial Review matter in September 2024.

For nearly three years, the asylum seekers have been kept in conditions that the UNHCR stated amount to arbitrary detention and have suffered tremendous hardships as a result of these delays and the Court’s inability to proceed with a hearing on Diego Garcia to ensure justice is done in their longstanding Judicial Review challenge. As a result of these delays, some asylum seekers have resorted to self-harm and suicide attempts and there have been instances where several Claimants collapsed during the legal proceedings.

Simon Robinson, a solicitor at Duncan Lewis and legal representative for the Claimants said:

“After nearly three years detaining our clients, including children, in deplorable conditions, it is welcome news that the Commissioner and the UK are finally considering the option to bring them to the UK, ending this humanitarian disaster. We call on the UK Government – the Foreign Secretary and the Home Secretary – end this detention immediately and bring our clients to the UK.  Our clients have been detained in conditions which the UNHCR say don’t even come close minimum standards.  How this has been allowed to happen, and continued for three years under the last UK Government needs to be urgently investigated further.  The Government needs to ensure this disaster can never happen again.” 

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.

Duncan Lewis’ Public Law team, ranked in Chambers & Partners and The Legal 500 UK directories, has a broad practice representing both privately and publicly funded (legal aid) clients in matters involving immigration; asylum and human rights and deportation matters, with a niche practice in immigration and civil liberties claimant judicial review matters. They have significant practice in challenging delays in Home Office decision making, unlawful immigration detention cases with high net claims for damages and challenging immigration removal decisions, particularly third country removal cases.