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

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). 

The majority of the asylum seekers have been held on Diego Garcia since 3 October 2021 after they were rescued at sea. Some 59 individuals, including 15 children, are still living on the island. 
 
They live in a fenced and guarded compound the size of a cricket pitch and are held under G4S guard and live in communal tents.  
 
In July, Ms Justice Obi granted and extended bail to allow 47 of the asylum seekers access to a road, a beach and a nature trail. She declined to extend bail to also include access to a social club and a different beach. An appeal against that decision by the Commissioner was dismissed on all grounds by the Court of Appeal in August.  
 
The judicial review hearing of the unlawful detention claims will be held over three days from Tuesday 17 September to Thursday 19 September, following a one-day site visit by the Court to the camp and other sites on the island on Monday 16 September.  
 
The asylum seekers’ legal teams at Leigh Day (and Duncan Lewis) are travelling from London to Diego Garcia to represent them at the hearing. This will be the first time they have been permitted to meet their clients in person since they began acting for them almost three years ago. 
 
Earlier this year, the BIOT Commissioner sought to appeal Obi J’s decision to hold the hearing of the unlawful detention claim on Diego Garcia. The BIOT Court of Appeal convened to hear the appeal, sitting for the first time in 40 years. The application for appeal was dismissed by the Court of Appeal in May. The hearing was then adjourned following a refusal by the US Authorities to provide necessary logistical support, despite the island being Crown land. 
 
Obi J had decided to sit in the 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, Tessa Gregory and Josh Munt, represent the seventh to twelfth Claimants. Counsel instructed by Leigh Day are Ben Jaffey KC and Natasha Simonsen of Blackstone Chambers.  
  
Tom Short said:   
 
“The start of October will mark the end of the third year of our clients and others, including 15 children, being detained in a small guarded camp on Diego Garcia at the behest of the BIOT Commissioner. The BIOT Commissioner has himself recently finally admitted that the situation in his camp has reached full-blown crisis. After a series of delays, including those resulting from the Commissioner’s own appeal against the decision that the hearing take place on Diego Garcia, our clients look forward to finally being able to put their case to the judge in person.  Our clients hope that this may mark the first step towards ending the deplorable limbo in which they have for too long been held.”  
 
Chris Buttler KC and Jack Boswell represented the second to sixth Claimants, instructed by Duncan Lewis.