Migrants unlawfully detained
Judge says UK government did not even come close to proving its case
A group of more than 60 Sri Lankan Tamil asylum seekers who were held for more than three years on the island of Diego Garcia in the Chagos Archipelago were unlawfully detained by United Kingdom government officials, a judge ruled yesterday.
“It is unsurprising that the claimants feel as if they are in a prison,” she found during a visit in September. “That is exactly what it is, in all but name.”
In most cases, their unlawful detention lasted from October 2023 until two weeks ago, when they were flown to the UK. They had been assisted by the Royal Navy after their fishing boat got into difficulties while they were attempting to reach Canada.
Access to Diego Garcia, halfway between Tanzania and Indonesia, is normally restricted to military personnel, government officials and support staff. The coral atoll houses a major strategic United States air and sea base, held on a lease from the UK.
As I wrote last month, one reason why the home secretary Yvette Cooper allowed the the asylum seekers into the UK may have been that the government was expecting to lose the claim they had brought against the commissioner for the British Indian Ocean Territory, a Foreign Office official who acts as the islands’ government and legislature.
“After everything we have heard from the attorney general about upholding the rule of law on the international level,” I observed on 5 November, “it would not look good if [the judge] ruled that the migrants had been unlawfully detained for three years.”
That has now happened and the asylum seekers are now expected to receive substantial damages for false imprisonment. The government will also have to pay their legal costs. It’s worth recalling that although David Lammy’s Foreign Office supported the migrants being allowed into the UK less than two weeks after Labour came to power in July, Cooper’s Home Office appears to have blocked the move until the decision was announced in November.
Findings
A 35-page judgment was delivered yesterday by Margaret Obi, sitting as an acting judge of the territory’s first-instance court. Counsel for the commissioner had argued at an unprecedented hearing in Diego Garcia in September that the claimants were not being detained; but if they were — or had been — then their detention was lawful.
From June 2021 until August of this year, the commissioner had been Paul Candler, who served as a civil servant for 26 years. He resigned after his advice was rejected by ministers. Evidence was given at the hearing by Nishi Dholakia, formerly his deputy and now the acting commissioner. Dholakia admitted that the islands’ administration — effectively its government — had made an “incorrect decision” by not giving effect to a bail order made by Obi following objections by a US commander.
Obi said:
A striking feature of this case is that the commissioner prevented the claimants from leaving the camp even after they were granted bail by this court on 23 April 2024. It is trite law that an order takes effect from the date it is made, unless otherwise specified, and must be obeyed, unless or until, it is discharged… Failing to give effect to the bail order is further evidence that the claimants were being detained.
She added:
The dire predictions which it was suggested would flow if the asylum seekers were granted access to [the main road] and the beaches along the bail route have proved to be ill-founded.
The acting commissioner in the summer of 2023 was Becky Richards, deputy director for overseas territories strategy within the Foreign, Commonwealth and Development Office. Giving evidence remotely at the hearing in September, she claimed that the claimants had been free to leave.
That ignored the reality of their situation, Obi said yesterday:
A Hobsonian choice between a very poor option and no option at all is not a genuine choice. As submitted on behalf of the claimants, it is akin to saying that a person imprisoned on the edge of a cliff is free to jump.
Three things were particularly striking about Richards’s evidence, Obi observed:
First, she appeared to have only a limited appreciation of the fundamental importance of liberty…
Secondly… she thought the asylum seekers could leave the camp if it were on fire. This indicates that, in her view, “reasonable excuse” is to be interpreted very narrowly.
Thirdly, she was reluctant to concede that the asylum seekers could have greater liberty without compromising the security of the military base… When pressed, she emphasised that the US have the “ultimate authority”.
Judgment
Dismissing the UK’s first argument, Obi concluded:
The contention that the claimants are not being detained does not bear scrutiny. As a matter of objective fact and in law the claimants are being detained and have been detained since their arrival on Diego Garcia.
Turning to government’s second point, she found that
the commissioner has not come close to establishing that it is necessary for the claimants to be detained.
There is no evidence that greater access to the parts of the island that are not militarily sensitive will cause immediate and/or significant risk of harm and there are reasonable alternative ways of securing the safety and security of the facility. Such risks that exist can be mitigated via a lawful restriction of movement order.
Obi would have ordered the claimants’ release by granting a writ of habeas corpus if they had still been in detention at the time of her judgment.
Reaction
Six of the claimants are represented by Leigh Day. Tom Short, a solicitor at the law firm, said yesterday:
Our clients have prevailed. The court has held that our clients, including children, were unlawfully detained without reasonable excuse for the entire time they were held captive on Diego Garcia. The judgment is a deeply damning indictment of the British Indian Ocean Territory administration’s handling of the situation…
This judgment is not only a vindication of our clients’ rights but a triumph for the rule of law in the British overseas territories. Such an affront to fundamental rights should never have happened and in due course this travesty of administration must be looked at in full.
Back story
Leigh Day have provided a timeline. My earlier commentaries, some of which were subsequently updated, first appeared on:
A UK government spokesperson said: “We are carefully considering this judgment.”
“Hobsonian choice” indeed: we should be thankful for and remember such examples of independent and robust judges such Judge Obi telling it how it is. So much of the history here is deserving of condemnation. I am trying -and perhaps failing- to be so constantly writing of the value we must continue to place in a truly independent judiciary. Never, ever should we -especially now- take that irreducible and egalitarian asset for granted or allow whichever hue of an administration to get away with mere lip service to it.