Sri Lankan asylum seekers successfully challenge decision that the Children Act 1989 does not apply on Diego Garcia

The ruling of Tuesday 2 April 2024, means the protections including those provided by sections 17 and 47 of the Children Act should apply to the children of asylum seekers on the island, say lawyers at Leigh Day and Duncan Lewis who represent the Claimants.

This includes the duties which require the Commissioner to (1) assess a child's needs for support to safeguard and promote their welfare; (2) assess the risks to a child where there is reasonable cause to suspect they are suffering or likely to suffer significant harm; (3) provide reasonable support to safeguard a child from the risk of significant harm and to safeguard and promote their welfare.

The BIOT Commissioner argued that the Children Act did not apply on Diego Garcia and that he was not bound by its obligations. He made the arguments in response to applications for wardship made in relation to children on Diego Garcia following serious concerns as to their wellbeing and safety on the island.

Human rights lawyers at Leigh Day and Duncan Lewis say the ruling means urgent action should be taken to remedy the breach of the Act and put in place better assessment and protections for children on the island.

The Claimants are asking the Court to appoint an independent social worker to assess the provisions on Diego Garcia and report on the interests of the three children they represent in these proceedings and other children on the island.

A further hearing relating to the asylum seekers’ claim that they are being unlawfully detained on Diego Garcia will take place in London on 15 April 2024.

The BIOT Supreme Court, has previously heard arguments including evidence from the UNHCR that the conditions the group are living in amount to arbitrary detention and they should be relocated urgently. The Claimants have recently issued a claim challenging the adequacy of the accommodation that they are being held in.

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not to award legal aid for their claims and had the initial refusals to their applications for international protection withdrawn.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 and Duncan Lewis 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 a small beach area alongside to 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 and Duncan Lewis 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 Thursday 8 and Friday 9 March 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 alongside lawyers at Duncan Lewis have 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. They have 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.

Leigh Day solicitor Claire Powell, who represents Claimants 3-5 with Tessa Gregory, said:

“The children have been detained on Diego Garcia for over two and a half years with most never having left the fenced encampment and we echo the concerns highlighted in the UNHCR report on the risk of sexual, emotional and physical harm to the children. We are very pleased that the Court has accepted our clients’ case that the Commissioner has a duty to properly safeguard, investigate harm and promote the welfare of the children on Diego Garcia pursuant to his duties under the Children Act 1989. We urge the Commissioner to take the urgent measures required to properly safeguard the children on Diego Garcia and act on the concerns raised by our clients and the UNHCR.”

Duncan Lewis solicitor Sulaiha Ali-Duggal, who represents Claimants 1-2 with Simon Robinson, said:

"We are extremely pleased that the Court have ruled in favour of our clients and have found that key duties that promote and ensure the safety and wellbeing of children, are applicable in BIOT. It is astonishing that the Commissioner had resisted the applicability of these duties in circumstances where he has chosen to detain children alongside adult single males, in an enclosed camp under deplorable conditions for an indefinite period. This is also particularly concerning given the harrowing findings made by UNHCR in their report and given the increasing number of incidents involving children who have been subject to sexual and gender-based violence in the camp. We hope that the Commissioner now takes immediate steps to ensure that his duties to the children are adequately met, and that the children’s welfare and safety needs are now prioritised going forward."