Most Diego Garcia migrants finally transferred to the UK, but what happens next?

In November 2024 there was a significant development in relation to the plight of around 64 people stranded on Diego Garcia, as the Home Secretary announced that she would be offering 61 of them the opportunity to be transferred to the UK. This week, on 2 and 3 December 2024, the migrants (based in Diego Garcia and Rwanda respectively) landed in the UK and were granted six months’ leave to enter outside the immigration rules, with recourse to public funds.

Background

Free Movement has previously covered this issue and the litigation brought in relation to it covering access to an asylum procedure, unlawful detention and treatment of children. In short, most of the group have been stranded on Diego Garcia since October 2021, when their boat came into distress in the Indian Ocean and was subsequently intercepted by the British Navy.

The group had sailed from Tamil Nadu, in India, with the intention of reaching Canada to claim asylum. Some people arrived on later boats from Sri Lanka directly. All of them claimed international protection on arrival.

The British Indian Ocean Territory’s administration’s position is that the Refugee Convention and European Convention on Human Rights do not apply, those treaties having not been extended to the territory. However it was accepted that they were bound by the principle of non-refoulement as a principle of customary international law. Subsequently, in June 2022 they set up a bespoke process for determining the migrants’ protection claims.

The migrants were required to attend interviews conducted by “seconded” Home Office asylum interviewers for the purpose of assessing the protection claims. These were said to have been conducted in line with UK Home Office guidance.

Following this, the claimants’ case was then reviewed by a number of “independent reviewers”, which included retired Upper Tribunal judges and barristers. The initial process for determining international protection claims on the territory was withdrawn following legal challenge, with all negative decisions withdrawn and the process forced to begin afresh.

The process then stalled for months due to an impasse between the migrants’ solicitors and the territory’s administration about medical experts visiting the island (which, many of the migrants contended, as alleged victims of torture in Sri Lanka and/or India, were essential to support their protection claims). The upshot of this was that after three years, many of the people on the island had not had a final decision on their asylum claim.

While this process was ongoing, the migrants were held in a closed encampment colloquially known as Thunder Cove (“the camp”). On 2 July 2023, the commissioner made a law which prohibited the migrants from leaving the camp without reasonable excuse (which as understood, was limited to medical appointments and legal appointments, as well as occasional supervised visits to the beach adjoining the camp).

The migrants contended that the conditions they are kept in, and the restrictions on their movement within this camp, constituted unlawful detention. They have challenged this in court, with a substantive hearing held on Diego Garcia in September 2024. A decision from the territory’s Supreme Court is awaited on this.

International bodies who have visited Diego Garcia have sharply criticized the living conditions of the migrants, some of whom are as young as four years old. UNHCR described the camp as “not an appropriate place of residence for asylum seekers and refugees beyond initial emergency reception” and that “the current policy of holding asylum-seekers at a closed accommodation camp, on a mandatory and indefinite basis, in the absence of a clear legal framework, amounts to arbitrary detention”, the conditions of which “fail to provide the necessary standards of privacy, safety, and dignity”.

On 26 June 2024, following extensive litigation, the commissioner recommended to the then Foreign Secretary, Lord Cameron, that all families with children, all individuals recognised as requiring international protection and one especially vulnerable person (totalling 39 of the 64 people on the island) should be transferred to the UK. This followed an assessment, via a witness statement disclosed in legal proceedings, that the 16 children under his duty of care were at an immediate and growing risk of suffering serious harm.

Following the general election and change of government, the commissioner repeated that recommendation to the incumbent Foreign Secretary, David Lammy. Lammy accepted the recommendation and on 16 July 2024 requested that the Home Secretary, Yvette Cooper granted “humanitarian visas” for those 39 people.

This information was disclosed to the camp residents in a court hearing on 24 July 2024. Given that the commissioner, by this point, had chosen to selectively relocate certain individuals, chaos soon followed. Over 20 of the single men with outstanding protection claims who were to be left on the island self-harmed, in view of young children. A safeguarding incident report drafted by the territory’s administration described the camp as being “in complete crisis.” Following this incident, the commissioner requested that the entire cohort of claimants should be transferred to the UK immediately, on the basis that the situation was “dangerous and unsustainable.”

Parallel developments regarding the sovereignty of the Chagos islands

This crisis, and the communications around it, happened in parallel to significant developments concerning the sovereignty of the Chagos archipelago (which includes Diego Garcia). On 3 October 2024 the Prime Minister, Keir Starmer, announced a political agreement to return the sovereignty of the islands to Mauritius subject to the finalisation of a treaty.

Moving back, in March 2024, three migrants on Diego Garcia who had received positive protection decisions (i.e. decisions that removal to Sri Lanka would, in these claimant’s cases, violate international law) issued a claim for judicial review in the High Court of England and Wales, challenging the delay of the Foreign Secretary to make expeditious arrangements for their relocation to a safe third country. The three claimants, two of whom (“BAA” and “HK”) were in Rwanda, and one on Diego Garcia (“RG”) had received positive decisions in March 2023, with no further update as to when and where they would be relocated.

On 24 July 2024, Sheldon J directed that the issues in this claim (“the RG claim”) were to be considered in a rolled up hearing. This hearing was listed for two days on 29 and 30 October 2024. On 7 October 2024, the Foreign Secretary filed evidence in these proceedings which explained that:

They had accepted that individuals with international protection and families should be urgently relocated owing to the harm they are suffering on Diego Garcia, and that they would be offered transfers to the UK following a stay in an Emergency Transit Facility in Romania. This facility is operated by the UNHCR and is usually used for individuals from countries such as Ukraine and Syria, who require a safe place to reside while their long term resettlement is effected.
Contrary to the commissioner’s recommendation, people who were subject to criminal convictions, charges or investigations, as well as single men whose international protection claims were yet to be finally determined, were excluded from this offer of relocation.

The implications of this decision were stark. Firstly, the decision affected a number of family units on the island (due to one family member having an outstanding criminal investigation or conviction). This meant that affected families were faced with a difficult choice of remaining on the island together as a family but in deplorable conditions, or splitting up the family by certain members accepting the relocation offer. For the single men, they faced an undetermined period on Diego Garcia, with no indication when their claims for international protection would be finally determined (having waited already waited over three years).

On 9 to 18 October 2024, lawyers representing the migrants (from Leigh Day, Duncan Lewis, Wilsons, JCWI, Bindmans and Central England Law Centre) visited the island. While we were there, the mood within the camp was fraught, with a number of individuals making clear the level of despondence they felt following hearing of their exclusion from relocation.

For the single men with outstanding protection decisions, all they were offered was an enhanced package of voluntary return to Sri Lanka. One man who had been on the island since 2021 branded the offer an “insult”. There were at least two suicide attempts while the lawyers were on the island.

While many of the lawyers were on Diego Garcia, two significant developments occurred in the UK.

Firstly, the President of the Administrative Court, Chamberlain J, heard a case management hearing in the RG claim. In this hearing, the claimants indicated their desire to amend their statement of facts and grounds to challenge the decision made by the Foreign Secretary and Home Secretary with regards to the relocation of the migrant cohort (both the specific decision to relocate to Romania and the exclusion of certain individuals from the offer). The Secretaries of State indicated they were likely not to oppose those amendments, and the court indicated that they were amenable to said amendments. A hearing was provisionally listed for 9 to 11 December 2024 to determine the lawfulness of the relocation decision.

Secondly, on 15 October 2024, the UK government and the government of St Helena signed a Memorandum of Understanding under which any asylum seekers arriving in the British Indian Ocean Territory will be transferred to St Helena for the processing for claims for asylum or international protection. This was intended as a “transitional” measure prior to the treaty between the UK and Mauritius coming into force. This agreement however only applied to future arrivals, meaning the fate of the remaining migrant cohort remained unclear.

The new decision

On 4 November 2024, the defendants wrote to the claimants (via their solicitors) indicating a change in policy. They said that this would lead to “all families, children and those of the unaccompanied males who do not have criminal convictions, outstanding charges or investigations [being] offered the opportunity to be transferred directly to the UK”, subject to entry clearance applications and biometric checks. This was formalised on 8 November 2024, via an offer of 6 months LOTR. This offer has been made to 61 of the 64 migrants, with three people excluded on account of their criminal convictions.

What happens now?

While this decision will come as a massive relief for the 61 individuals, who will now have the opportunity to rebuild their life anew in the UK following years of suffering in the UK, there are still a number of questions and implications from the decision made by the UK government.

Firstly, for those with undetermined protection claims, it seems that many of them will be required to go through the asylum process again in the UK. From this questions arise as to (i) what weight will be given to the evidence collated in the territory’s protection process when it comes to the Home Office making decisions on these asylum claims and (ii) the effect of making these people, many of whom have suffered trauma both in their home country and on Diego Garcia, undergo the asylum process again. It is also unclear whether they will be allowed to work and/or study in the UK while waiting for their claims to be resolved.

Secondly, there are further, starker questions in relation to the status of migrants who have had positive protection decisions delivered by the commissioner of the British Indian Ocean Territory. At a hearing on 15 November 2024, counsel for the Home Secretary indicated that they too would have to “re-do” the protection process, citing the fact that the process was not a “refugee status determination process” (due to the convention not applying on the territory) as part of the reason for this position.

HK, BAA, and RG have subsequently amended their grounds again to challenge this position on the basis that:

the UK government accepts these individuals cannot be refouled to Sri Lanka and there is no other safe country to which they can go
on the basis of the individuals’ decisions, they should be at least afforded humanitarian protection in the UK (on the basis that it is accepted that they will face a real risk of harm in their country of origin
on the basis of their protection decisions, the individuals require a durable solution in order to rebuild their lives, and risk unnecessary re-traumatisation if they are made to go through the asylum process again and
in correspondence in May 2023, the commissioner told two of the claimants that work was being done “to find a safe third country which is prepared to accept you for resettlement.”

The High Court has provisionally listed a hearing for February 2025 in order to determine this issue.

Conclusion

Finally, what will become of the excluded claimants? The new decision applies to all but three claimants, who have been excluded from the decision on grounds of criminality. Two of these claimants have criminal convictions and are serving custodial sentences on the territory.

In respect of one of these individuals (referred to in the court proceedings as “KP”) he is in the particularly unique position of having a positive protection decision and criminal convictions, meaning that when his custodial sentence is completed, his fate as to onward resettlement remains unclear. His conditions of detention have come into sharp focus recently, leading to the territory’s commissioner making a request to the Foreign Secretary to transfer him to another British Overseas Territory, by operation of the Colonial Prisoners Transfer Act 1884. This decision was made in light of the conditions of detention on the territory.

Recently, it was revealed in open court that the UK were considering opening discussions with the government of Montserrat in respect of a prisoner transfer involving KP and one other person also serving a custodial sentence in the territory. No formal decision has yet been made, however a claim on these issues is likely to be heard in February 2025, where the High Court will consider the lawfulness of excluding him and other migrants from the offer made pursuant to the new decision.