Sri Lankan asylum seekers challenge unlawful detention on Diego Garcia

The BIOT Supreme Court, sitting remotely in London, accepted the claimants’ arguments that there were good reasons for the court to sit on Diego Garcia for all or part of their unlawful detention claims.

The court heard arguments including references to a report from the UNHCR that the conditions the group are living in amount to arbitrary detention and they should be relocated urgently.

The group, who arrived on the island in October 2021 after their boat fleeing India ran into distress on the Indian Ocean, have already successfully challenged the decision not to award legal aid for their claims and had the initial refusals to their applications for international protection withdrawn.

Lawyers from Leigh Day say the six are being unlawfully detained in a fenced camp known as Thunder Cove on the 12 square mile strip of land. 

The group are held under G4S guard with up to 55 other asylum seekers in a wire fenced area measuring 100mx140m. The camp is vermin infested and the group live in communal tents with scant protection from severe weather conditions. 

Their movements are severely restricted and are only recently permitted to leave the camp to go to a small beach area alongside the camp at designated times, under close supervision. They 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 restriction on the asylum seekers’ movements was reinforced by the purported enactment of a Restriction of Movement Order (RMO) in July 2023. 

Leigh Day lawyers say there is no lawful basis for the group’s detention, that the RMO is unlawful and that there was not proper authority for Commander Colvin Osborn, British Representative and Principal Immigration Officer on Diego Garcia, to make such an order. 

They say the group should have the right to freedom of movement, and to access the  facilities on the island which include a supermarket, bars, restaurants, sports and recreational facilities, barber shop, launderette and beauty shop. Those facilities are open to the 2,500 civilian contractors who live alongside military personnel on Diego Garcia and, say the lawyers, there is no reason why the asylum seekers (who are a small group of 61 individuals) should not also have the freedom to use them. 

UNHCR inspectors visited Diego Garcia in November 2022 and their report was referred to in the BIOT Supreme Court  remote hearing on Friday 16 February 2024. It reported that women and children in the group of asylum seekers were suffering sexual harassment and abuse. They reported mental distress and significant risk of suicide and said the fact that 16 children were being detained on the island was “particularly troubling”. 

Leigh Day partner Tessa Gregory has represented asylum seekers on Diego Garcia for over two years and in that time five severely ill individuals have been removed from Diego Garcia to Rwanda for emergency medical treatment. She secured legal aid for those on Diego Garcia and then challenged the decision that members of the group should be forcibly returned to Sri Lanka. 

Now the group is claiming that:

• They are detained in the camp on Diego Garcia. 
• The Defendant has no lawful authority for detaining them.  

Leigh Day solicitor Claire Powell, who represents the asylum seekers with Tessa Gregory, said: 

“It is our clients’ position that they are unlawfully detained on Diego Garcia. This includes children who have now spent over two years of their lives in a fenced encampment, with allegations of physical, psychological and sexual harm.   

“The UNHCR has confirmed that these conditions amount to arbitrary detention and that the children are held in conditions that are damaging to their “wellbeing and development”. The UNHCR report also raises concerns as to the risk of gender-based violence, unsuitable tented accommodation and the infestation of rats in the camp at Thunder Cove. 

“The BIOT Commissioner has been made aware of these risks and continues to fail to act.  

“In the hearing on 19 February 2024, the Court confirmed that it is in principle willing for the unlawful detention hearing to take place, at least in part, on Diego Garcia.  

“We are pleased the Court has recognised the importance and urgency of these proceedings, and that access to justice is essential for our clients, whether they are in Diego Garcia, or the UK.”   

The substantive hearing is expected to be held shortly.