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

Ms Justice Obi, Acting Justice of the BIOT Supreme Court, will hold a trial of the asylum seekers’ claims of unlawful detention and habeas corpus (the right not to be unlawfully imprisoned) after she rejected an appeal by the BIOT Commissioner that such an undertaking would be unnecessary and disproportionately costly.

The asylum seekers have been held on Diego Garcia since 3 October 2021 after they were rescued at sea. Some 59 individuals, including 16 children, are still living on the island, in a fenced and guarded compound the size of a football field. They are held under G4S guard and live in communal tents.
 
The judicial review hearing of their unlawful detention claims will be held over two days in early July, following a one-day site visit by the Court to the encampment where the asylum seekers live and to civilian facilities on the island. 
 
The asylum seekers’ legal teams at Leigh Day (and Duncan Lewis) will travel from London to the hearing and also meet their clients in person for the first time since they began acting for them in 2021.
 
In April the BIOT Supreme Court granted bail to the asylum seekers involved in the legal action. For the first time in 32 months they have now been able to leave the encampment and walk along a defined route with access to beaches. The Commissioner also resisted the application for bail on the basis that the US had raised security concerns, although it emerged in court that the US had requested the Commissioner to provide a risk assessment and he had failed to do so. No issues of security have arisen with the Claimants enjoying access to the bail route. 
 
The hearing for the BIOT Commissioner’s application to appeal the decision to hold the judicial review in BIOT was the first time the BIOT Court of Appeal had sat in 40 years.
 
Obi J decided to sit in BIOT after she heard submissions from the Commissioner and from counsel instructed on behalf of the Claimants. Her reasons for holding the trial in BIOT are:

• First, justice should be done and seen to be done in the BIOT. Public confidence is enhanced by transparency and accountability, and conducting an in-person hearing is an important component of that.
• Second, the questions of whether the Claimants are detained and whether such detention is necessary will be assisted by a site visit because of the unique features of the case.
• Third, the practical involvement of the Claimants is likely to be enhanced if they can communicate with their legal representatives in person.

Diego Garcia is part of the Chagos archipelago and is one of the most remote islands in the world. Since the early 1970s it has been host to an extensive US military facility on one part of the island. A full civilian infrastructure has been built on the island to support military personnel and the thousands of civilian contractors on the island, including shops, a post office, bars, night clubs and sport facilities. These are run variously by the US military through its Morale, Welfare and Recreation Program, by private contractors such as KBR, and by the British (including the Brit Club). The asylum seekers have so far been denied access to all facilities. 
 
Leigh Day solicitors Tom Short and Tessa Gregory, along with Josh Munt, represent the seventh to 12th Claimants. Counsel instructed by Leigh Day are Ben Jaffey KC and Natasha Simonsen of Blackstone Chambers. 
 
Tom Short said: 
 
“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 that it shall sit in the Territory to hear their claims for unlawful detention and habeas corpus. Since their arrival on Diego Garcia some 32 months ago, our clients have been caged in a small area of the island, purportedly on grounds of security. We have so far been denied in-person access to our clients by the BIOT Commissioner. The only external independent observer of the conditions in which our clients are held so far was a UNHCR monitoring visit in November 2023. The UNHCR found unequivocally that the asylum seekers are detained, that “the current arrangements do not meet international standards”, and that in respect of the children the conditions are “damaging to their wellbeing and development”. The UN strongly recommended that “all asylum seekers and refugees should be urgently relocated from Diego Garcia to another location”.”
 
Chris Buttler KC and Jack Boswell represented the second to sixth Claimants, instructed by Duncan Lewis.