Appeal Court upholds bail for Diego Garcia asylum seekers amid serious concerns for their welfare

Judges dismissed a bid by the Commissioner of the BIOT to overturn the bail that was granted by the BIOT Supreme Court on 26 July 2024.

In the face of a humanitarian crisis unfolding at Thunder Cove on Diego Garcia, the Supreme Court extended access to the island’s highway and certain beaches during specified times of the day to a further 36 asylum seekers, and gave all 47 applicants access to a 1.5km woodland nature trail, alongside the detention camp.
 
The asylum seekers belong to a group of 61 who have been trapped on the island for almost three years since their boat got into trouble in the Indian Ocean and they were rescued by two British Royal Navy ships.
 
Human rights lawyers who represent the group have described dire living conditions to the Courts. The asylum seekers are held in a fenced compound measuring just 100m x 140m, under G4S guard. The camp is vermin infested and the group live in communal tents with scant protection from severe weather conditions. Members of the group allege they have previously been told by members of the BIOT Administration that they risk being killed by armed US military personnel if they leave the camp. The sense of hopelessness endured by the group, which includes 16 children, has resulted in recurrent suicide and self-harm attempts by more than 20 individuals.
 
Last month BIOT Commissioner Paul Candler described the situation in the camp to UK government ministers as “dangerous and unsustainable”, and concluded that, by remaining on Diego Garcia, children in particular are suffering from “immediate and ongoing harm”. One of the Commissioner’s medical team on Diego Garcia has recently described the camp as “in complete crisis”. However, Mr Candler opposed the granting of bail and asked the Court of Appeal to overturn it. The freedoms could not be exercised until the appeal had been heard.
 
However, in a judgment handed down today, Tuesday 20 August 2024, three judges, including the President of the BIOT Appeal Court, dismissed the Commissioner’s appeal on all grounds.
 
The Court emphasised its “very serious concern regarding the welfare of all the migrants on Diego Garcia and, in particular, the children”, and noted the “extraordinary context” of the US, the Claimants and the Commissioner all agreeing that the asylum seekers “should leave Diego Garcia as a matter of urgency”.
 
The Court further expressed it was concerned with ensuring that “restrictions to freedom are as limited as possible”.
 
The Court held that the Commissioner had a fair hearing before the BIOT Supreme Court, and that the Judge had given “weight and respect” to US/UK relations in her judgment. The Appeal Court also held that the BIOT Supreme Court took US security concerns “fully into account” in its judgment and that the Judge was “very careful” to leave it for the Commissioner to make decisions about the allocation of resources.
   
Tom Short, solicitor at law firm Leigh Day which represents 28 of the individuals held in the detention camp, said: 
 
"We are relieved that the Court of Appeal has dismissed the Commissioner’s appeal, enabling our clients, including children, to exercise modest freedoms to escape temporarily from the deplorable conditions in which they have long been detained. It is unconscionable that the Commissioner has for so long denied our clients this modest grant of freedom, whilst accepting that the detention camp is in complete crisis and that daily harm is being inflicted on our clients.
 
“Despite their success, our clients will continue to be held indefinitely in squalid conditions on this remote island. The Court of Appeal is absolutely right to express serious concerns for our clients’ wellbeing. We implore the new Government to act now and urgently put an end to this ongoing and unsustainable humanitarian crisis on this British-run territory.”
  
The asylum seekers, including 16 children, have been detained in inhumane conditions since they arrived on Diego Garcia on 3 October 2021. They allege they have been unlawfully detained since by the BIOT Commissioner.   
  
The claimants 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.  
  
Twenty-eight of the claimants are represented by Tom Short, Tessa Gregory, and Claire Powell with Josh Munt of Leigh Day, and by counsel Ben Jaffey KC and Natasha Simonsen of Blackstone Chambers.  
  
Twelve 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.  
  
Eight of the claimants are represented by Adam Straw of Wilsons Solicitors, and by counsel Helen Law of Matrix Chambers.