Refugee refused refuge

High Court dismisses challenge by Sri Lankan Tamil detained in Diego Garcia

The High Court has dismissed a claim for judicial review brought by a Sri Lankan Tamil detained on the island of Diego Garcia in the British Indian Ocean Territory.

Last November, the home secretary allowed 61 other shipwrecked Tamil asylum seekers “leave outside the rules” to enter the UK. The unnamed claimant was refused entry because of his criminal convictions.

The migrant is currently serving a sentence of imprisonment in Diego Garcia for assault occasioning actual bodily harm. He had previously received a suspended sentence after his conviction on one count of arson and four counts of sexual assault of a woman. He has complex mental health problems; he has self-harmed and attempted suicide.

Dismissing his challenge, Mr Justice Chamberlain said that the migrant had no human rights claim against the United Kingdom. Although he could not be safely returned to Sri Lanka there was a realistic prospect that a country other than the UK would agree to take him.

The home secretary had acknowledged that leaving him in Diego Garcia for the time being gave rise to some risk to his health and life. Efforts were being made to find a country that would take him in. But even in cases where the human rights convention applied there was no rule requiring a public authority to do everything in its power to eliminate or minimise a risk to life, the judge said.

He continued:

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.

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.

Chamberlain’s judgment was delivered on 21 February and I missed it at the time. It is interesting on two levels.

First, it casts new light on the apparent difference of opinion between the home office and the foreign office last summer over what should happen to the Diego Garcia migrants. I reported some of this at the time.

Secondly, the judgment was welcomed yesterday in an academic essay by Mark Elliott, professor of public law at the University of Cambridge.

It’s fair to say that not all my readers may understand Elliott’s analysis, which he sums up thus:

The judgment is very valuable thanks to the way in which it rigorously analyses and synthesises the case law on rationality review, demonstrating the importance of conceptually distinguishing between different forms of deference, recognising the possibility of combining a heavy burden of justification with substantial adjudicative deference and acknowledging that the role of the court in substantive review cases must be understood by reference to due analysis of what is at stake in the case rather than by resorting to crude distinctions between (for example) cases that do and do not involve rights.

But for those who wish to know what the leading academic in the field of judicial review thinks of the approach taken by the leading High Court judge responsible for judicial review, Elliott’s analysis of Chamberlain is a must.