Following a legal challenge, the small group of Sri Lankan people seeking asylum in Diego Garcia have been granted bail so that they are able to access more of the island beyond the tiny encampment they were kept in previously. We have previously published a post providing the historical context of Diego Garcia and the novel process for protection claims that was established following the asylum seekers’ arrival on the island.

Diego Garcia – the relationship between the UK and the US

The British Indian Ocean Territory comprises over fifty uninhabited islands (the Chagos Archipelago). It is one of the most remote island groups in the world. Diego Garcia is the largest island of the Chagos Archipelago, with an area of about 30 square kilometres. Diego Garcia consists of a long ribbon-like structure around the edge of an atoll, enclosing a lagoon.

Diego Garcia hosts a joint UK/US military facility, under an agreement made by an exchange of diplomatic notes between the governments of the US and the UK. It is considered a sensitive joint military facility of significant strategic importance to both the UK and the US.

There is no permanent accommodation on Diego Garcia as there is no settled population. Ordinarily, the only people present on the island are military personnel from the US and UK, public officers of the territory’s administration and support staff for the defence facilities. There are occasional visits by scientists conducting environmental research. There is no right of abode on Diego Garcia. All military personnel and supporting contractors are present in the island because they have been posted there.

The defence facility occupies approximately half of Diego Garcia, the remaining half being a restricted conservation area to which entry is only allowed by permission from the Commissioner’s representative (section 4, The Diego Garcia Conservation (Restricted Area) Ordinance 1994).  There are a number of amenities provided for the use of military personnel, supporting contractors and territory officials who are posted to Diego Garcia which are part of the defence facility. This area is colloquially referred to as ‘Downtown’.

Conditions in Thunder Cove camp

Since their arrival on Diego Garcia, the group have been kept in an encampment referred to as Thunder Cove which was initially an open area. Shortly after the arrival of those seeking asylum, plastic fencing was erected around the perimeter to demarcate the boundary of the camp. In November 2021, around a month after arrival, the plastic fencing was replaced with wire fencing.

The camp originally comprised an area of approximately 100m x 100m. This was expanded to approximately 100m x 140m in April 2022.

The camp is administered by the territory’s administration and its contractors. Initially, the camp was guarded around the clock by US military personnel. That responsibility was transferred to G4S contractors on 12 March 2022, who continue to guard the camp.

The group were initially prevented from having contact with the outside world due to security concerns. From the outset, the group of people were told they must remain within the confines of the camp. That instruction was reinforced by the making of the Restriction of Movement Order in July 2023, which purports to criminalise the movement of asylum seekers beyond the camp without a reasonable excuse.

Perhaps most shockingly, the group allege they have been told by the territory’s administration that they are at risk of being killed by armed US military personnel if they leave the camp.

Those on Diego Garcia have claimed asylum on the basis that their return to Sri Lanka would result in a risk of them facing serious harm and/or persecution. Despite this, the Commissioner of the territory has offered them return to Sri Lanka as a means of leaving the island. In order to leave, a person is required to sign a waiver withdrawing their claim for international protection and stating their intention to return to Sri Lanka. This is a process similar in substance to the process of voluntary return offered by the Home Office in the UK.

So far, one claimant received a positive non-refoulement decision, which means that the defendant accepts that they cannot be returned to Sri Lanka. The rest of the claimants have outstanding protection claims.

The judicial review

In light of the conditions described above, on 18 December 2023, twelve claimants, including a child, issued claims for judicial review arguing that they were being unlawfully detained by the Commissioner for the territory. This was because they were kept in the encampment under threat of criminal penalty.

The claimants also sought modest relaxations of the constraints on their freedom, through an order for interim relief or bail or habeas corpus. The claimants argued that there are parts of the island that they could have freedom to access. The claimants noted that their life is considerably more restrained even than a civilian contractor from a third country on Diego Garcia.

The defendant agreed by consent on 19 December 2023 to permit the claimants access to visit the beach located near the camp for at least 90 minutes each day. In practice, this has not been happening, with access only permitted once or twice per week, for approximately an hour each time. Some weeks no access has been allowed.

When they are allowed to leave the camp, the group are escorted and constantly guarded by G4S staff. This applies when they go to the beach adjacent to the camp, the ‘Chapel’ (where they are taken to communicate with their legal representatives via ipads), and to the downtown area (where they are taken for medical appointments).

From the outset, the defendant’s contention has been that the claimants are not detained because they are free to leave the territory and continue their onward journey. The defendant has suggested that, even if the claimants are detained, it cannot be said that their detention is being caused by the defendant or that the defendant is causing their detention intentionally.

The defendant also resisted the claimants’ wishes for the substantive hearing to take place in Diego Garcia with the attendance in person of the parties’ legal representatives. On 19 February 2024, the Supreme Court decided that a hearing could in principle take place in the territory. The defendant filed an application for leave to appeal, stating that the decision to direct a hearing in the territory in the presence of the parties’ legal representatives “fell outside the scope of reasonable case management decisions open to the Learned Judge”.

On 11 April 2024, the Supreme Court refused the defendant leave to appeal and concluded that a hearing on the territory attended by the parties’ legal representatives was necessary for this to claim to be resolved fairly and justly. The defendant thereafter filed an application for leave to appeal to the Court of Appeal, a matter that is ongoing.

The UNHCR report

From 18 to 26 November 2023, a four-person team from the United Nations High Commissioner for Refugees (“UNHCR”) conducted a monitoring visit to the camp. The purpose of the visit was to meet with asylum-seekers, refugees, service providers, contractors and territory officials to assess the overall protection environment in light of relevant international standards.

Following their visit, the UNHCR concluded, in their report dated 16 February 2024, as follows:

Diego Garcia is not an appropriate place of residence for asylum seekers and refugees beyond initial emergency reception. The current arrangements do not meet international standards.

In particular, 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.

Conditions of detention fail to provide the necessary standards of privacy, safety and dignity.

UNHCR inspectors also heard allegations of sexual harassment and abuse against women and children by other asylum seekers, and identified high levels of mental distress and significant risk of suicide and attempted suicide. They found the detention of 16 children among the 61 people on the island to be “particularly troubling” and said at least some of those found to be in need of international protection should be transferred to the UK.

While UNHCR appreciated in its report the challenges presented by a significant number of arrivals on Diego Garcia in 2021 and 2022, within a military facility, and the wish to avoid incentivising further dangerous journeys, it nonetheless considered that the existing situation for the asylum seekers in Diego Garcia is not tenable. UNHCR said that it is vital that an alternative to the current arrangement through which people are held in detention is rapidly secured. 

In response to the UNHCR report, the Foreign Office accepted that the territory is not a suitable location for migrants and has stressed that the welfare and safety of migrants on the territory has been the government’s top priority. Nevertheless, they reiterated that they did not accept UNHCR’s findings that the conditions there amounted to arbitrary detention.

While the defendant’s stance remains that the migrants in Diego Garcia cannot be relocated to the UK, the Foreign Office were not opposed to this idea initially. In 6 March 2022, Elizabeth Truss, in her capacity as Foreign, Commonwealth & Development Secretary, prepared a letter to the Prime Minister in which she noted that while she “strongly supports the Government’s overall posture on migration… she feels that the unique circumstances and severity of risks in this situation require us to take extraordinary action and bring the migrants to the UK for processing.”

Nevertheless, there are currently no prospects for the migrants in Diego Garcia, including those who have a positive protection claim, to be relocated to the UK.

The claimants’ application for bail

On 2 April 2024, the claimants made an application to the Supreme Court seeking bail on reasonable terms, pending their substantive claims for unlawful detention and habeas corpus. In the application for bail, the claimants offered bail conditions limiting:

• the places they can access within Diego Garcia, such as the DG1 highway and three demarcated areas in the island, namely (1) Jake’s Place (a small conurbation lying on the Highway which, as seen via satellite images, include a football pitch, tennis courts and softball pitches, as well as large expanses of park land and a significant beach frontage with deckchairs available for use by all, except the claimants by virtue of their detention), (2) Splendidville (the site of both the marina and the Brit Club, both of which are facilities open to everyone present on the island (except the claimants by virtue of their purported detention), and (3) Downtown, an area to which the free shuttle bus runs and in which civilians may move around freely (except the claimants by virtue of their purported detention);

• times of access (e.g. between 09.00 and 18.00, which would be comfortably within daylight hours on Diego Garcia); and

• that children are at all times accompanied by a responsible adult when outside the Thunder Cove camp.

The claimants relied on evidence that large parts of Diego Garcia are not sensitive at all, despite the defendant’s assertions to the contrary. For example, in a public hearing to determine the claimants’ application for interim relief on 15 April 2024, the claimants presented evidence demonstrating a group of NFL Cheerleaders visiting the island in recent months, who were there to “entertain the troops”. The claimants also showed footage of the Brit Club, a popular venue on Diego Garcia, which sells subsidised alcohol and hosts regular foam parties.

The court’s bail order

On 22 April 2024, Ms Margaret Obi, Acting Judge of the Supreme Court of the British Indian Ocean Territory, ruled in favour of granting the claimants bail subject to conditions.

Pursuant to paragraph 1.1 of the bail order, the bailed claimants “shall be permitted to access a specific route along the east side of DG1 and attend any of the beaches, where safe to access, along that route” between the hours of 9am and 5pm on the island. Under paragraph 1.3, the defendant is permitted to make arrangements for the bailed claimants to be escorted while accessing those areas.

Under paragraph 1.4, the defendant “may limit the number of Bailed Claimants who can access the areas referred to in paragraph 1.1 to 11 individuals at any one time, and may limit the duration of time for which the Bailed Claimants can access those areas to four hours per day”. Such limits “must be communicated to the Bailed Claimants by no later than 5pm (Diego Garcia time) the day before”, in accordance with paragraph 1.5.

For many of the claimants, this would be the first time they have left their confines in over two and a half years.

The defendant’s application to stay bail order

Despite the immediate effect of the bail order, the claimants were told that the defendant was not able to facilitate access to specified route delineated in the order. Following an application by the claimants, on 26 April 2024, the court ordered the defendant to provide the court and the claimants with a full and candid explanation as to his compliance with the bail order on 24 and 25 April 2024 by 29 April 2024.

On 26 April 2024, the defendant made an urgent application to the court, stating that while the court had granted bail conditions to take immediate effect, the court have not allowed any time to ensure that the conditions can be effectively implemented following a required consultations with the US government. It was the defendant’s position that this consultation is required because the route specified in the bail order passes through US controlled areas.

It is understood that the territory’s administration, through the Foreign, Commonwealth and Development Office and the British Embassy in Washington have begun urgent discussions with both the US State Department and US Department of Defence, as well discussions between commanding officers on Diego Garcia, in order to progress the matter as quickly as possible and seek to identify a workable solution to give effect to the court’s decision of 23 April 2024.

The defendant therefore sought for a stay of the bail order to 13 May 2024 to enable discussions with the US government to be held to secure the required authorisation for the claimants to access the specified route in the bail order.

The defendant contended that the issue centred on US concerns about the claimants and that, in effect, assurances from the US were necessary to implement the bail order. However, on 30 April 2024 the defendant upon request provided disclosure which revealed this to be untrue.

In fact, the defendant’s representative had arranged a plan to ensure the bail conditions are complied with. In this disclosure, it was openly admitted that the defendant had no legal power to stop the claimants leaving the camp and that any use of force to stop the claimants from leaving would constitute assault. Nevertheless, despite this plan being shared with the defendant on 26 April 2024, the claimants were informed on the same day that they were not allowed to leave the camp.

Subsequently, several claimants left the camp on 2, 3 and 4 May 2024 respectively with no incidents. Nonetheless, the defendant maintained his application for stay on the basis of the required assurances from the US.

The court’s refusal of the stay application

On 4 May 2024, Supreme Court Judge Obi delivered a judgment refusing the defendant’s stay application. Obi J determined that the evidence supported the claimants’ contention that security assessments and plans had already been carried out by the defendant’s representative. The judge said that while the US may wish to undertake their own risk assessment of the claimants, this is not a reason to stay the bail order as the order is workable in principle and practice. Judge Obi made clear the bail conditions as currently drafted strike a balance between the claimants’ liberties and broader security concerns.

Moreover, the court determined that the defendant had provided “no good or sufficient” reason to depart from the bail order and that the application constituted an attempt to revisit the bail application of 2 April 2024 which had already resulted in a sealed bail order on 23 April 2024.

The court thereafter amended the order to allow the defendant to give the claimants access to the DG1 highway along three separate routes proposed by the claimants, or alternatively any other reasonable route or method, including by vehicle. The court also ordered the defendant to pay the claimants’ costs on an indemnity basis.

Conclusion

The court’s bail order marks the first time in over two and a half years that many of the people seeking asylum in Diego Garcia have been permitted to leave the camp. While this represents a key victory for the claimants, the defendant’s initial refusal to comply with the terms of the bail order raises several key concerns.

Firstly, the defendant’s resistance to comply with the terms of the bail order, which may persist, will undoubtedly leave a devastating impact upon those claimants, including a young child, who are desperately hoping for some glimpse of liberty after being subjected to conditions that, according to the UNHCR, amount to arbitrary detention.

Secondly, the claimed inability of the territory’s administration to comply with the bail order due to the need for US approval may provide a strong argument in favour of finding a solution for the refugees and asylum seekers that does not involve them staying on Diego Garcia while their protection claims are decided. This will become even more important if the court concludes following the substantive hearing that the people are indeed unlawfully detained at the camp, necessitating their relocation to a third country.

These two issues will certainly be explored further at the substantive hearing of the claimants’ claim for unlawful detention which is scheduled to take place on Diego Garcia in July 2024.

The claimants in the above litigation were represented by Duncan Lewis and Leigh Day.