Following a authorized problem, the small group of Sri Lankan folks in search of asylum in Diego Garcia have been granted bail in order that they can entry extra of the island past the tiny encampment they have been stored in beforehand. We now have beforehand revealed a post offering the historic context of Diego Garcia and the novel course of for defense claims that was established following the asylum seekers’ arrival on the island.
Diego Garcia – the connection between the UK and the US
The British Indian Ocean Territory includes over fifty uninhabited islands (the Chagos Archipelago). It is among the most distant island teams on the earth. Diego Garcia is the most important island of the Chagos Archipelago, with an space of about 30 sq. kilometres. Diego Garcia consists of a protracted ribbon-like construction across the fringe of an atoll, enclosing a lagoon.
Diego Garcia hosts a joint UK/US army facility, underneath an settlement made by an change of diplomatic notes between the governments of the US and the UK. It’s thought of a delicate joint army facility of serious strategic significance to each the UK and the US.
There isn’t any everlasting lodging on Diego Garcia as there is no such thing as a settled inhabitants. Ordinarily, the one folks current on the island are army personnel from the US and UK, public officers of the territory’s administration and help workers for the defence services. There are occasional visits by scientists conducting environmental analysis. There isn’t any proper of abode on Diego Garcia. All army personnel and supporting contractors are current within the island as a result of they’ve been posted there.
The defence facility occupies roughly half of Diego Garcia, the remaining half being a restricted conservation space to which entry is just allowed by permission from the Commissioner’s consultant (part 4, The Diego Garcia Conservation (Restricted Space) Ordinance 1994). There are a selection of facilities offered for using army personnel, supporting contractors and territory officers who’re posted to Diego Garcia that are a part of the defence facility. This space is colloquially known as ‘Downtown’.
Circumstances in Thunder Cove camp
Since their arrival on Diego Garcia, the group have been stored in an encampment known as Thunder Cove which was initially an open space. Shortly after the arrival of these in search of asylum, plastic fencing was erected across the perimeter to demarcate the boundary of the camp. In November 2021, round a month after arrival, the plastic fencing was changed with wire fencing.
The camp initially comprised an space of roughly 100m x 100m. This was expanded to roughly 100m x 140m in April 2022.
The camp is run by the territory’s administration and its contractors. Initially, the camp was guarded across the clock by US army personnel. That duty was transferred to G4S contractors on 12 March 2022, who proceed to protect the camp.
The group have been initially prevented from having contact with the surface world because of safety issues. From the outset, the group of individuals have been advised they need to stay throughout the confines of the camp. That instruction was bolstered by the making of the Restriction of Motion Order in July 2023, which purports to criminalise the motion of asylum seekers past the camp with out a affordable excuse.
Maybe most shockingly, the group allege they’ve been advised by the territory’s administration that they’re susceptible to being killed by armed US army personnel in the event that they depart the camp.
These on Diego Garcia have claimed asylum on the idea that their return to Sri Lanka would lead to a danger of them dealing with critical hurt and/or persecution. Regardless of this, the Commissioner of the territory has provided them return to Sri Lanka as a method of leaving the island. With the intention to depart, an individual is required to signal a waiver withdrawing their declare for worldwide safety and stating their intention to return to Sri Lanka. It is a course of comparable in substance to the method of voluntary return provided by the Residence Workplace within the UK.
Thus far, one claimant acquired a constructive non-refoulement resolution, which signifies that the defendant accepts that they can’t be returned to Sri Lanka. The remainder of the claimants have excellent safety claims.
The judicial assessment
In gentle of the situations described above, on 18 December 2023, twelve claimants, together with a toddler, issued claims for judicial assessment arguing that they have been being unlawfully detained by the Commissioner for the territory. This was as a result of they have been stored within the encampment underneath menace of prison penalty.
The claimants additionally sought modest relaxations of the constraints on their freedom, by means of an order for interim reduction or bail or habeas corpus. The claimants argued that there are components of the island that they might have freedom to entry. The claimants famous that their life is significantly extra restrained even than a civilian contractor from a 3rd nation on Diego Garcia.
The defendant agreed by consent on 19 December 2023 to allow the claimants entry to go to the seashore situated close to the camp for a minimum of 90 minutes every day. In observe, this has not been taking place, with entry solely permitted a couple of times per week, for roughly an hour every time. Some weeks no entry has been allowed.
When they’re allowed to go away the camp, the group are escorted and always guarded by G4S workers. This is applicable once they go to the seashore adjoining to the camp, the ‘Chapel’ (the place they’re taken to speak with their authorized representatives through ipads), and to the downtown space (the place they’re taken for medical appointments).
From the outset, the defendant’s rivalry has been that the claimants usually are not detained as a result of they’re free to go away the territory and proceed their onward journey. The defendant has instructed that, even when the claimants are detained, it can’t be mentioned that their detention is being attributable to the defendant or that the defendant is inflicting their detention deliberately.
The defendant additionally resisted the claimants’ needs for the substantive listening to to happen in Diego Garcia with the attendance in particular person of the events’ authorized representatives. On 19 February 2024, the Supreme Courtroom determined {that a} listening to may in precept happen within the territory. The defendant filed an utility for depart to enchantment, stating that the choice to direct a listening to within the territory within the presence of the events’ authorized representatives “fell outside the scope of reasonable case management decisions open to the Learned Judge”.
On 11 April 2024, the Supreme Courtroom refused the defendant depart to enchantment and concluded {that a} listening to on the territory attended by the events’ authorized representatives was vital for this to assert to be resolved pretty and justly. The defendant thereafter filed an utility for depart to enchantment to the Courtroom of Attraction, a matter that’s ongoing.
The UNHCR report
From 18 to 26 November 2023, a four-person group from the United Nations Excessive Commissioner for Refugees (“UNHCR”) carried out a monitoring go to to the camp. The aim of the go to was to satisfy with asylum-seekers, refugees, service suppliers, contractors and territory officers to evaluate the general safety surroundings in gentle of related worldwide requirements.
Following their go to, the UNHCR concluded, of their report dated 16 February 2024, as follows:
Diego Garcia shouldn’t be an applicable place of residence for asylum seekers and refugees past preliminary emergency reception. The present preparations don’t meet worldwide requirements.
Particularly, the present coverage of holding asylum-seekers at a closed lodging camp, on a compulsory and indefinite foundation, within the absence of a transparent authorized framework, quantities to arbitrary detention.
Circumstances of detention fail to supply the required requirements of privateness, security and dignity.
UNHCR inspectors additionally heard allegations of sexual harassment and abuse in opposition to ladies and youngsters by different asylum seekers, and recognized excessive ranges of psychological misery and important danger of suicide and tried suicide. They discovered the detention of 16 youngsters among the many 61 folks on the island to be “particularly troubling” and mentioned a minimum of a few of these discovered to be in want of worldwide safety must be transferred to the UK.
Whereas UNHCR appreciated in its report the challenges introduced by a big variety of arrivals on Diego Garcia in 2021 and 2022, inside a army facility, and the want to keep away from incentivising additional harmful journeys, it nonetheless thought of that the present scenario for the asylum seekers in Diego Garcia shouldn’t be tenable. UNHCR mentioned that it’s important that a substitute for the present association by means of which persons are held in detention is quickly secured.
In response to the UNHCR report, the International Workplace accepted that the territory shouldn’t be an appropriate location for migrants and has burdened that the welfare and security of migrants on the territory has been the federal government’s high precedence. Nonetheless, they reiterated that they didn’t settle for UNHCR’s findings that the situations there amounted to arbitrary detention.
Whereas the defendant’s stance stays that the migrants in Diego Garcia can’t be relocated to the UK, the International Workplace weren’t against this concept initially. In 6 March 2022, Elizabeth Truss, in her capability as International, Commonwealth & Improvement Secretary, ready a letter to the Prime Minister by which she famous that whereas 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.”
Nonetheless, there are at the moment no prospects for the migrants in Diego Garcia, together with those that have a constructive safety declare, to be relocated to the UK.
The claimants’ utility for bail
On 2 April 2024, the claimants made an utility to the Supreme Courtroom in search of bail on affordable phrases, pending their substantive claims for illegal detention and habeas corpus. Within the utility for bail, the claimants provided bail situations limiting:
- the locations they will entry inside Diego Garcia, such because the DG1 freeway and three demarcated areas within the island, particularly (1) Jake’s Place (a small conurbation mendacity on the Freeway which, as seen through satellite tv for pc pictures, embrace a soccer pitch, tennis courts and softball pitches, in addition to massive expanses of park land and a big seashore frontage with deckchairs accessible to be used by all, besides the claimants by advantage of their detention), (2) Splendidville (the positioning of each the marina and the Brit Membership, each of that are services open to everybody current on the island (besides the claimants by advantage of their purported detention), and (3) Downtown, an space to which the free shuttle bus runs and by which civilians could transfer round freely (besides the claimants by advantage of their purported detention);
- instances of entry (e.g. between 09.00 and 18.00, which might be comfortably inside daytime on Diego Garcia); and
- that youngsters are always accompanied by a accountable grownup when outdoors the Thunder Cove camp.
The claimants relied on proof that enormous components of Diego Garcia usually are not delicate in any respect, regardless of the defendant’s assertions on the contrary. For instance, in a public listening to to find out the claimants’ utility for interim reduction on 15 April 2024, the claimants introduced proof demonstrating a bunch of NFL Cheerleaders visiting the island in latest months, who have been there to “entertain the troops”. The claimants additionally confirmed footage of the Brit Membership, a preferred venue on Diego Garcia, which sells subsidised alcohol and hosts common foam events.
The courtroom’s bail order
On 22 April 2024, Ms Margaret Obi, Performing Choose of the Supreme Courtroom of the British Indian Ocean Territory, dominated in favour of granting the claimants bail topic to situations.
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. Underneath paragraph 1.3, the defendant is permitted to make preparations for the bailed claimants to be escorted whereas accessing these areas.
Underneath 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 most of the claimants, this might be the primary time they’ve left their confines in over two and a half years.
The defendant’s utility to remain bail order
Regardless of the speedy impact of the bail order, the claimants have been advised that the defendant was not in a position to facilitate entry to specified route delineated within the order. Following an utility by the claimants, on 26 April 2024, the courtroom ordered the defendant to supply the courtroom and the claimants with a full and candid clarification 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 pressing utility to the courtroom, stating that whereas the courtroom had granted bail situations to take speedy impact, the courtroom haven’t allowed any time to make sure that the situations could be successfully carried out following a required consultations with the US authorities. It was the defendant’s place that this session is required as a result of the route specified within the bail order passes by means of US managed areas.
It’s understood that the territory’s administration, by means of the International, Commonwealth and Improvement Workplace and the British Embassy in Washington have begun pressing discussions with each the US State Division and US Division of Defence, as nicely discussions between commanding officers on Diego Garcia, as a way to progress the matter as rapidly as attainable and search to determine a workable resolution to present impact to the courtroom’s resolution of 23 April 2024.
The defendant due to this fact looked for a keep of the bail order to 13 Might 2024 to allow discussions with the US authorities to be held to safe the required authorisation for the claimants to entry the required route within the bail order.
The defendant contended that the problem centred on US issues in regards to the claimants and that, in impact, assurances from the US have been essential to implement the bail order. Nevertheless, on 30 April 2024 the defendant upon request offered disclosure which revealed this to be unfaithful.
In truth, the defendant’s consultant had organized a plan to make sure the bail situations are complied with. On this disclosure, it was overtly admitted that the defendant had no authorized energy to cease the claimants leaving the camp and that any use of pressure to cease the claimants from leaving would represent assault. Nonetheless, regardless of this plan being shared with the defendant on 26 April 2024, the claimants have been knowledgeable on the identical day that they weren’t allowed to go away the camp.
Subsequently, a number of claimants left the camp on 2, 3 and 4 Might 2024 respectively with no incidents. Nonetheless, the defendant maintained his utility for keep on the idea of the required assurances from the US.
The courtroom’s refusal of the keep utility
On 4 Might 2024, Supreme Courtroom Choose Obi delivered a judgment refusing the defendant’s keep utility. Obi J decided that the proof supported the claimants’ rivalry that safety assessments and plans had already been carried out by the defendant’s consultant. The decide mentioned that whereas the US could want to undertake their very own danger evaluation of the claimants, this isn’t a purpose to remain the bail order because the order is workable in precept and observe. Choose Obi made clear the bail situations as at the moment drafted strike a steadiness between the claimants’ liberties and broader safety issues.
Furthermore, the courtroom decided that the defendant had offered “no good or sufficient” purpose to depart from the bail order and that the appliance constituted an try to revisit the bail utility of two April 2024 which had already resulted in a sealed bail order on 23 April 2024.
The courtroom thereafter amended the order to permit the defendant to present the claimants entry to the DG1 freeway alongside three separate routes proposed by the claimants, or alternatively some other affordable route or methodology, together with by automobile. The courtroom additionally ordered the defendant to pay the claimants’ prices on an indemnity foundation.
Conclusion
The courtroom’s bail order marks the primary time in over two and a half years that most of the folks in search of asylum in Diego Garcia have been permitted to go away the camp. Whereas this represents a key victory for the claimants, the defendant’s preliminary refusal to adjust to the phrases of the bail order raises a number of key issues.
Firstly, the defendant’s resistance to adjust to the phrases of the bail order, which can persist, will undoubtedly depart a devastating influence upon these claimants, together with a younger baby, who’re desperately hoping for some glimpse of liberty after being subjected to situations that, in accordance with the UNHCR, quantity to arbitrary detention.
Secondly, the claimed incapacity of the territory’s administration to adjust to the bail order as a result of want for US approval could present a powerful argument in favour of discovering an answer for the refugees and asylum seekers that doesn’t contain them staying on Diego Garcia whereas their safety claims are determined. This can change into much more vital if the courtroom concludes following the substantive listening to that the persons are certainly unlawfully detained on the camp, necessitating their relocation to a 3rd nation.
These two points will definitely be explored additional on the substantive listening to of the claimants’ declare for illegal detention which is scheduled to happen on Diego Garcia in July 2024.
The claimants within the above litigation have been represented by Duncan Lewis and Leigh Day.
Interested by refugee legislation? You may like Colin’s e-book, imaginatively referred to as “Refugee Law” and revealed by Bristol College Press.
Speaking vital authorized ideas in an approachable approach, that is an important guide for college students, attorneys and non-specialists alike.
