Credit: NASA Johnson, CC BY-NC 2.0

The British Indian Ocean Territory (BIOT) Supreme Court yesterday found that dozens of Sri Lankan Tamils were unlawfully detained in prison-like conditions after arriving on the island in 2021 and claiming asylum.

They are no longer on the island, having been brought to the UK earlier this month by the Foreign Office in a “one-off” decision.

Most of the asylum seekers were taken to Diego Garcia in October 2021 when their boat got into trouble in the ocean, while a second boat arrived in Diego Garcia in April 2022.

In December 2023, 12 claimants, including a child, issued claims for judicial review, arguing that they were being unlawfully detained by the BIOT commissioner, applying for a writ of habeas corpus and for interim relief.

The BIOT commissioner defended the claim, arguing that the asylum seekers were not detained, and if they were detained, it was necessary for them to be detained for the security of the military base on Diego Garcia.

During the proceedings, the court granted bail to the claimants in April 2024. The commissioner failed to give immediate effect to the order, and accepted that a rapid response force attending the camp on the day was not to escort the bailed claimants in leaving the camp.

A hearing scheduled to take place in July 2024 was cancelled at the last minute when the US government withdrew their support for the court travelling from London to the territory.

The commissioner had previously unsuccessfully appealed the BIOT Supreme Court’s decision to have the hearing take place on Diego Garcia.

A rescheduled hearing took place over four days in September 2024 at Freedom Hall, Thunder Cove, Diego Garcia. A site visit was included as part of the hearing.

The court found that the claimants had been unlawfully detained on Diego Garcia from their arrival until their departure.

Simon Robinson, a solicitor at UK law firm Duncan Lewis, who represented four of the claimants, said: “The court found that our clients were falsely imprisoned for over three years by the commissioner — a UK civil servant — and that he had not come close to showing that their imprisonment was necessary.

“The court will now assess the damages to be paid to our clients.

“The court also found that the commissioner imposed collective punishments on those who attempted to leave and that our clients had a genuine fear that they would be shot for doing so. 

“Our clients — and the UK public — deserve answers about how the commissioner, in the 21st century, came to operate an illegal overseas prison for asylum seekers at huge expense to the UK taxpayer.

“This judgment is a victory for justice, human rights and the rule of law.”