Diego Garcia did not have any sort of asylum system in place when it received its first asylum seekers in 2021. Following litigation, the British Indian Ocean Territory has for the first time put in place processes for protection claims to be lodged and decided there. What happens to people in the event of a successful claim remains unclear.

Historical Context

Diego Garcia is the largest island of an archipelago which together comprise the British Indian Ocean Territory. The territory was constituted in 1965 following negotiations for the decolonisation of Mauritius. The following year, the UK leased Diego Garcia to the United States to construct a military base.

The military base has played a significant strategic role in many major conflicts. It has also led to a long struggle between the UK and the people who were expelled from the island. This struggle has been extensively litigated, both in the UK courts and internationally. The only people who live on the island now are military personnel and contractors.

The first asylum seekers arrive on the island

On 3 October 2021, a boat discovered to be in distress in the territory’s waters was taken to shore. The boat contained Tamil asylum seekers who had fled Sri Lanka with the intention of travelling to Canada. After arrival in the territory they made clear that they were seeking asylum.

When they arrived, there was no existing procedure for determining claims for international protection on the territory. Indeed, before this situation there was no record of such a claim having been made. The asylum seekers asked to be relocated to a country where they could make a claim.

The asylum seekers were housed in military tents while the Commissioner and his team decided what to do with them. They were separated from the military base in Diego Garcia by a fence made of mesh and chicken wire. Initially, they were prevented from having contact with the outside world due to security concerns.

Accessing the asylum process

The Commissioner sought legal advice and eventually created two forms for the asylum seekers to complete to register their claim. These were based on those contained within Appendix 1 of a UNHCR guidance document.

The asylum seekers were invited to complete the new forms but were unable to access lawyers to help them. There was no guarantee of confidentiality about the information provided. There were also suggestions that some of the ‘screening interviews’ were not conducted by professionals but instead by interpreters.

In March 2022 two of the individuals managed to contact Leigh Day in the UK. Leigh Day promptly wrote to the Commissioner to raise concerns about their welfare. They also sought an undertaking that the asylum seekers would not be returned to Sri Lanka. Leigh Day also asked that the asylum seekers be given the ability to communicate with their lawyers.

A novel process for protection claims

Following correspondence, the Commissioner made two new orders that apply solely to the territory. A ‘Statement on Process’ was also issued. This outlined how the asylum seekers’ claims for international protection would be processed on the territory itself.

The Statement on Process contained a number of important provisions regarding both the Commissioner’s powers and the applicable laws he believed he was subject to when processing the protection claims.  This included that the Commissioner had been advised that neither the Refugee Convention nor the European Convention on Human Rights apply to the territory.

The Commissioner however accepted that he could not act in breach of the principle of non-refoulement, which prohibits the forcible return of asylum seekers to a country where they face persecution. Therefore, the asylum seekers’ claims were considered in a somewhat novel process.

The claims for international protection

Each of the asylum seekers had a substantive interview regarding their claim for asylum (or given the Commissioner’s position, “non-refoulement”). This was said to be conducted in accordance with the Home Office’s asylum interviews guidance, in so far as it could be suitably modified. The asylum seekers were interviewed by individuals experienced in dealing with immigration claims, with the assistance of qualified interpreters.

The asylum seekers had interviews in June and July 2022. Following the interviews, many of them made representations that their removal to Sri Lanka (or India) would breach the principle of non-refoulement. The commissioner did not provide free legal assistance with the preparation of these claims. This meant that all legal representatives were acting pro bono, incurring disbursements at their own cost. This severely hampered the evidence able to be collected.

The decisions

The process was that after evidence had been served the claim would be considered by two independent lawyers with ‘considerable experience in immigration and asylum matters and knowledge of the relevant standards’. Once reviewed, they would provide the commissioner with advice. This would include an opinion as to whether return of the asylum seekers to their country would breach the principle of non-refoulement. If answered in the negative, the commissioner would issue a removal order.

The commissioner recognised that such a decision would be amenable to judicial review, as reflected in the settled position following Bancoult No.2. It is important to note that the asylum seekers were never offered the opportunity of a full merits appeal with respect to their protection claims (as is the case with asylum claims which are refused in the UK, unless they are certified). This meant that all findings made by the commissioner could only be quashed if there was a public law error present in the decision.

In November 2022, a number of clients were served with decisions which stated that removal to their home country would not violate the principle of non-refoulement and were accordingly served with removal orders. The refusals were all made on the grounds of credibility.

The judicial review

Ten claimants issued claims for judicial review challenging the refusal decisions and corresponding removal orders on 13 February 2023. In summary, the claimants challenged the decisions on the following grounds

Procedural Fairness

A high standard of fairness was required due to the issue of non-refoulement (the risk that the asylum seekers would be returned to persecution in Sri Lanka).  These standards were not met at multiple stages of the process.

The initial interviews were unfair, as they did not comply with UNHCR guidelines and were given undue weight in assessing the claimants’ credibility. The claimants were not given notice so that they could prepare for the interview. They were not told the purpose of the interview. There was also a lack of confidentiality and/or privacy in relation to how the interviews were conducted.

The substantive interviews were unfair, as audio recordings were not provided to the claimants’ representatives before a decision was made. This deprived them of an opportunity to make representations with the benefit of the recording. The claimants argued that this was fundamental to a fair procedure, given the lack of a merits appeal where a judge could decide the appropriate weight to be given to an interview record.

They also alleged that material aspects of the interview policy (which the Commissioner adopted) were breached. This included failing to make them feel at ease, failing to ask relevant follow up questions to clear up inconsistencies and failing to arrange for legal advice prior to interview.

Other procedural issues were also raised, notably a lack of legal aid provision, limitations in communications and issues with geography and language.

‘Minded to’ process

The claimants contended that, given the common law applied in the territory by virtue of section 3 of the Courts Ordinance 1983, fairness required them to have the opportunity to address any adverse credibility findings the decision-maker was minded to take against them prior to the final decision being made.

This is known as a ‘minded to’ process. There is no such process in England and Wales because people whose asylum claim is rejected have the right to a full merits appeal (unless their claim has been certified as ‘clearly unfounded’).

The Statement on Process did not require credibility points to be put to the claimants before a decision was made. This meant there was no opportunity to make informed responses to adverse credibility findings.

The claimants highlighted that in English common law the courts have on numerous occasions imposed a minded-to process. This included in the context of housing decisions (R v London Borough of Hackney, ex p. Decordova (1994) 27 HLR 108), age assessment decisions (FZ, R (on the application of) v London Borough of Croydon[2011] EWCA Civ 59) and in the context of an asylum seekers right to welfare benefits (‘Q’ & Ors, R (on the application of) v Secretary of State for the Home Department[2003] EWCA Civ 364).

Failure to apply anxious scrutiny

The claimants argued that the Commissioner failed to apply anxious scrutiny in refusing the claimants’ claims and as a result made a number of material public law errors. This included failing to apply the correct approach to assessing credibility where claimants present as vulnerable. It was also argued that undue weight was attached to the substantive interview record in circumstances where the fairness of the interviews was in question.

Misapplication of KK and RS (Country Guidance Decision)

The majority of the claimants had claimed international protection based on a fear of persecution from the Sri Lankan government. This was on account of their actual or perceived association with Tamil Separatist Movements. In England and Wales, country guidance had recently been promulgated in respect of this specific fear (KK and RS (Sur place activities, risk) Sri Lanka (CG) [2021] UKUT 130).

The claimants argued that the Commissioner had made an error in law by considering whether they had a ‘significant’ role in relation to post-conflict Tamil separatism. While this was the test in KK, it only applies where the fear of persecution is in relation to sur-place activities (those taking place after the person has fled).

Indeed, the tribunal in KK held that where separatist beliefs were manifested within Sri Lanka, this was “highly likely to attract adverse attention and may, depending on the facts of case, require less from an individual to prove that they were detained” [at 550].

A failure to provide Legal Aid

The claimants brought another judicial review against the refusal to grant them legal aid for their challenge to removal on non-refoulement grounds. The claimants were successful, the case was VT, CT and Ors v CBIOT, BIOT SC/No3 and No4/2023. In that case, James Lewis KC (the Chief Justice of the Supreme Court) held that some sections of Legal Aid, Sentencing and Punishment of Offenders Act 2012 could be made applicable to local circumstances, with minor changes.

The claimants argued here that the unlawful refusal of legal aid rendered the refoulement decisions unlawful. This was because the lack of legal aid prevented them from collecting further evidence, which may have changed the outcome. The evidence focused on included expert medical evidence, individualised country expert evidence and a full translation of the interview transcript.

Medical evacuation to Rwanda and subsequent challenge

In March 2023, a number of asylum seekers were medically evacuated to Rwanda after self-harming. An application for injunctive relief was made by Leigh Day to prevent them being returned to the territory.

That decision is BAA and Ors v CBIOT [2023] EWHC 767 (KB). Interim relief was refused, on the basis that:

• the claimants had no status in Rwanda. They were there pursuant to a bespoke arrangement between the UK and the Rwandan government
• the arrangement included an undertaking that the territory would remove the claimants from Rwanda once treatment was complete. This meant an injunction would prevent the Commissioner from honouring the undertaking given on behalf of the UK government. This would potentially lead to the claimants being detained in Rwanda
• to avoid them being detained, they would have to transfer the claimants to the UK upon completion of medical treatment. This was beyond the powers of the Commissioner. Making such an order would essentially induce the Home Secretary to exercise her public law powers in a particular way
• accordingly, the balance of convenience was not in favour of granting the injunction.

Although unsuccessful, the case highlighted the impact that being on Diego Garcia was having on those affected and the limited facilities on the island to meet their needs.

The Commissioner’s withdrawal

Permission for judicial review was granted in the British Indian Ocean Territory’s Supreme Court on 5 June 2023. A four day hearing was listed for 25 September 2023 to decide whether the Commissioner’s decisions were unlawful.

On 22 September 2023 the Commissioner agreed to withdraw the refusal decisions and corresponding removal orders. The Commissioner indicated that he would amend the Statement on Process to provide for a ‘minded-to’ process, in line with one of the grounds of challenge. Importantly, he confirmed that the withdrawn decisions related to all those with an asylum refusal on the island.

Following discussions between the parties, the Commissioner confirmed that he would:

• Amend the Statement on Process to provide for a ‘minded-to’ stage. This would allow individuals to respond to points that the Commissioner and reviewers are minded to take against them before a final decision is made.
• Provide an opportunity for individuals to collect further evidence in support of their claim.
• Provide legal aid.
• Ensure that the new decisions will be assessed by reviewers with no previous involvement in the asylum seekers’ cases.

Conclusion

This concession represents a significant victory in what have been lengthy and emotional proceedings for all those stranded on Diego Garcia since 2021. It is important that they will now be able to present their claims in a more effective manner.

However this process has taken two years and the delays have had a profound impact on the collective mental health of those present on the island. Their future remains unclear, with no certainty on where they will be relocated to if they receive a positive decision.

The claimants in the above litigation were represented by Duncan Lewis and Leigh Day, their joint press release on the outcome can be found here.