Challenge to refusal to relocate Diego Garcia refugee to the UK dismissed by High Court

In our latest write up on the people seeking asylum who were on Diego Garcia there was mention of the case of KP, who was excluded from the arrangements to bring most people to the UK as he had criminal convictions, although he had also been recognised as being in need of international protection. His challenge to that exclusion has been rejected by the High Court in R (KP) v Secretary of State for Foreign, Commonwealth and Development Affairs & Anor [2025] EWHC 370 (Admin). The second defendant was the Secretary of State for the Home Department and the Commissioner for the British Indian Ocean Territory was an interested party in the proceedings.

Background

KP is a Sri Lankan national of Tamil ethnicity who has complex mental health problems and has self-harmed and attempted suicide multiple times on the island. The British Indian Ocean Territory has accepted that he was tortured and sexually abused by Sri Lankan military personnel and is in need of international protection. KP previously received a suspended sentence following conviction of arson and sexual assault and is currently serving a prison sentence for assault occasioning actual bodily harm after he tried to drown himself and then assaulted a security officer who stopped him.

It has been accepted that KP cannot be left on Diego Garcia indefinitely and the defendants have been trying to find a third country that will accept KP. On 8 November 2024 the Home Secretary decided to grant 61 other people on the island leave outside the rules to enter the UK. KP was not included because of his criminal convictions and the Foreign Secretary sought to make an agreement for him to transferred to serve the rest of his sentence at HMP Brades in Montserrat, along with another prisoner, VT.

In January 2025 it was decided not to transfer KP to Montserrat because there was very little of his sentence left to serve (six to eight weeks) and the transfer would be too disruptive to him. It was noted that work was being done to improve the detention conditions on Diego Garcia.

A medico-legal report dated 7 February 2025 noted that KP continues to suffer from post-traumatic stress disorder and that the lack of certainty about his situation and future were exacerbating his anxiety and depression. In addition to this, the conditions of his prison reminded him of the trauma he suffered in Sri Lanka and his several suicide attempts meant that there was a risk of serious injury or death.

The government has been approaching other countries in relation to a potential transfer of KP, although his criminal convictions made reaching an agreement more difficult. Five potential countries had been identified by January 2025 and as at 5 February 2025 Foreign Office officials had spoken to all five countries and was waiting to hear back from four of them, the fifth having refused to take KP. A potential sixth country was being discussed internally.

The current plan is that once KP reaches the end of his prison sentence and until a third country agrees to a transfer, he will continue to be housed in the short term holding facility but will not be detained and may be located in a different area of the facility.

The judicial review

KP challenged by judicial review the decision of 8 November 2024 and the ongoing decision not to relocate him to the UK. The court accepted that the claimant’s argument that this was a case where the heightened standard (anxious scrutiny) of rationality review applies. The court separated the challenges into a “process irrationality complaint”, looking at whether the decision maker had taken into account every factor in the claimant’s favour, and “outcome irrationality”.

On the latter point, the court said that “a heightened standard of review does not displace the well-established institutional reasons for the court to afford the defendant a wide margin when making a judgment of this kind” and that the Foreign Office’s view would be accorded great respect by the court.

Disclosure from the Foreign Office indicated that considerable difficulties were expected in finding a country willing to accept KP. The court agreed with the claimant that there were strong reasons to question whether one of the countries would be receptive.

However, the court found that there were reasons to believe that there was a reasonable prospect that a third country would accept KP, and for that reason the refusal to transfer KP to the UK was “within the range of responses rationally open to the defendants”. It concluded that:

94. The most recent submissions to the defendants recognised that, despite the measures put in place to mitigate the risk, the decision to leave the claimant in Diego Garcia gives rise to some risk to his health and life. This risk had to be, and was, recognised. But, even in cases where Article 2 ECHR applies and a fortiori in cases such as the present where it does not, there is no rule requiring a public authority to do everything in its power to eliminate or minimise a risk to life. Sometimes, the disbenefits of doing so are too great. A person who himself poses risks to others cannot expect the Government to focus exclusively on the risks to himself, even if they are risks to his life.

95. In this case, the disbenefits include risks to the safety of the UK public and, relatedly, risks to public confidence in the immigration system. Both of these are real risks. So is the risk that admitting the claimant in these high-profile circumstances would tend to undermine the UK’s international commitment to tackling violence against women and girls. The task of evaluating the weight and importance of avoiding these risks falls, in the first instance, to Ministers, not judges. Given the nature of the risks in question, the court should allow a wide margin to the democratically accountable ministers who, together with their officials, performed it. The court’s supervisory function is limited to ensuring that the defendants’ decisions fall within the wide range of reasonable decisions open to them. In my judgment, they do.

This was a rolled up hearing, and so the court concluded by granting permission but dismissing the substantive judicial review.

Conclusion

This decision may very well be appealed. Even if it isn’t, if the UK is unable to find a safe third country which will accept KP in the near future, then the current position of refusing to admit him is likely to become unsustainable and a further challenge could lead to a different outcome.

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