The Commissioner of the British Indian Ocean Territory has unsuccessfully appealed a grant of bail allowing the small group of people seeking asylum on Diego Garcia to access certain parts of the island. The case is The Commissioner v The King (on the application of VT & Ors) (No. 3) [2024] BIOT CA (Civ) 3.

Background

An order made by the Supreme Court of the British Indian Ocean Territory on 22 April 2024 and then varied 4 May 2024 granted the respondents limited access to parts of the island. Initially 11 people were allowed to leave the camp to walk along a specified road to visit the beach (we have covered this previously). This access could be limited by the Commissioner to four hours a day.

Two more children were granted this bail in July 2024. The group applied to extend the areas they were permitted to access on 16 July 2024 and for more people to be granted this access.

The Commissioner asked the United States for their input on 17 July 2024 but this was not received until 23 July, three hours before the bail hearing was to start. The US rejected the proposed extension of bail and re-stated its position that the Commissioner should arrange for all the migrants on Diego Garcia to be removed without delay.

The Minister of State for Europe, North America and the UK Overseas Territories wrote to the Commissioner on 25 July 2024 instructing him to seek permission to appeal in the event that the grant of bail was extended contrary to the US’s position. At the hearing on 26 July 2024 the judge extended the grant of bail to all of the respondents and also extended access to the nature trail but refused to extend this to the Brit Club or to Turtle Cove, or to allow the use of bicycles or scooters. This is the decision that was under appeal to the territory’s Court of Appeal.

The appeal

There were four grounds of appeal. The first was that the judge’s decision to consider the bail application was procedurally unfair. The complaint here was that it was unreasonable to require the Commissioner to formulate a response to the US’ response within three hours and so as a result the hearing had been unfair. The court rejected this argument, pointing out that there was nothing in the response that was a surprise and there had been an opportunity for the Commissioner to make further submissions at another hearing on 26 July 2024 but he had chosen not to do so.

The second ground of appeal was that the judge’s decision was an unreasonable exercise of her discretion because she failed to properly consider and/or place adequate weight on the impact the decision would have on US/UK relations. This seemed to centre on the use by the judge of the phrase “generic and rigid” to describe the US’ response to the bail proposal.

The court said that the response could properly be described as generic as it addressed the respondents as a group rather than individuals, and the US’ position had been consistent throughout. The judge had repeatedly said in an earlier bail judgment that “weight and respect” should be given to the US’ views and the court was satisfied that she had continued to do so in the July decision. This ground was dismissed.

The third ground was that the judge failed to place any or any adequate weight on the US authorities assessment of their security concerns. The court said that the implication in this ground, as with ground 2, was that the judge had no choice but to defer to the opinions of the Commissioner and the US and this was wrong. The court said that the judge did not question whether the US’ view on their national security interests was correct, but instead she accepted the evaluation and weighed it against the other factors. The fact that key parts of the extended bail application were refused was an indication that the concerns of the US had been taken into consideration.

The fourth ground was that the decision was an unreasonable use of discretion because of its impact on the Commissioner’s decisions on resource allocation. The court found that the judge had correctly acknowledged that it is for the Commissioner to decide how funds are spent, for example “On the particular issue of escorts, the judge wrote that “it is a matter for the Commissioner to determine whether to (i) reduce the ratio of G4S officers [who supervise respondents during the exercise of bail] or (ii) increase the number of G4S officers””. The judge’s approach was held to be correct.

The court also drew attention to the fact that all of the bail orders made by the judge had provided for suspension or limitation of access to the bail areas by the Commissioner without the need for the court’s consent. The court said that “The inclusion of this provision clearly indicates that, contrary to the submissions advanced by the Commissioner, the judge has been very much alive to the practical problems which may arise from permitting unvetted civilians any freedom of movement close to a military facility.”

The appeal was dismissed on all grounds.

What next?

The court noted that the Commissioner, the US and the respondents (several of whom have received positive decisions on their protection claims) are all of the view that the respondents should leave Diego Garcia urgently. The court concluded by saying that “It is not for this court to require that action is taken to resolve matters, still less to propose possible solutions. However, we wish to record our very serious concern regarding the welfare of all the migrants on Diego Garcia and, in particular, the children.” The UK still seems to be the logical place for them to be transferred, however despite the serious concerns about the welfare of children in particular, without a political decision to bring them here this group’s ordeal seems likely to continue.

For more information, see the press releases from Leigh Day and Duncan Lewis.