The Commissioner of the British Indian Ocean Territory has conceded the protection proceedings brought by Tamil refugees on Diego Garcia

The Supreme Court of the British Indian Ocean Territory (BIOT) was due to commence a 4-day hearing on 25th September 2023 brought by 10 Tamil refugees currently on the island of Diego Garcia. In a late-stage concession, the Commissioner (head of government) of BIOT agreed to withdraw the decisions to remove the claimants to Sri Lanka, where they each claim they fear persecution, and agreed to amend the procedure that had been implemented to determine their protection claims, which was argued by the claimants to be procedurally unfair.

The claimants had left by boat from India in October 2021 with around 80 other Tamils, intending to travel to Canada to seek asylum. Their boat ran into difficulties in the Indian Ocean and was intercepted by Royal Navy vessels. The claimants were taken to Diego Garcia. A second boat carrying more Tamils arrived soon afterwards. Since that date, the claimants and others have been housed in tents in a secure compound on the remote island which includes a US naval communications facility. The claimants report dire conditions with limited sanitation, privacy, and space. There have been a number of suicide attempts, including of such seriousness to require medical evacuation, hunger strikes and instances of sexual assault. At times the claimants were held incommunicado or their communication with the outside world was restricted.

After having been on Diego Garcia for around 8 months the Commissioner of BIOT implemented a process by which claims for international protection would be determined on the island, on the basis of recommendations by legal advisers appointed by the Commissioner. This was despite widespread concern both within and outside government that the only viable option was for their claims to be determined in the UK. The claimants were the subject of interviews conducted remotely before decisions were made that they should each be removed to Sri Lanka. Prior to the decisions being taken, none of the claimants had legal aid and had only been able to secure, in some cases very limited, advice from pro bono lawyers in the UK. The denial of legal aid to the claimants was found to be unlawful in a judgment of the Chief Justice of the Supreme Court of BIOT in May 2023.

The claimants challenged the decisions and orders directing their removal to Sri Lanka by judicial review in the Supreme Court of BIOT, since the process did not provide for any right of appeal. Ten cases were chosen as lead cases to test the lawfulness of the process implemented by the Commissioner. The claimants argued that the process was procedurally unfair and otherwise unlawful on a number of grounds, including that they had been given no chance to explain points on which they had been disbelieved; medical reports capable of corroborating accounts of torture and abuse had not been obtained; and adverse inferences had been drawn from their answers at interviews whose purpose had not been explained and at which they had been given no confidentiality assurances.

In compromising the claim, the Commissioner of BIOT has agreed to withdraw the decisions for the claimants, and all migrants currently on Diego Garcia in respect of whom removal decisions to Sri Lanka were made, and to amend the process by which claims are determined so as to include a provisional refusal or “minded to refuse” procedure. The claimants argued that such a process was necessary on the grounds of procedural fairness in the absence of a right of appeal, to enable individuals to address the reasons why the Commissioner was minded to conclude that their removal to Sri Lanka would not breach the customary international law principle of non-refoulement prior to a final decision being made.

In each of the claimants’ cases, they will be permitted to submit further evidence in support of their claims for protection with a minded-to decision having been issued, before further decisions are made. In the interim, the claimants will remain on Diego Garcia.

Alasdair Mackenzie and Antonia Benfield were instructed by Tessa Gregory and Tom Short of Leigh Day solicitors for 8 of the claimants, led by Ben Jaffey KC, along with Jason Pobjoy and Natasha Simonsen of Blackstone Chambers and Ben Bundock of One Pump Court. Duncan Lewis solicitors represented two additional claimants, instructing Chris Buttler KC and Ali Bandegani.