The last Tamil
Shipwrecked migrant expected to leave Diego Garcia today after 4½ years
The last shipwrecked Sri Lankan Tamil remaining in Diego Garcia is on his way to the Maldives, his departure precipitated by the heightened risk of a military attack on the British Indian Ocean Territory.
KP, as he is referred to in court papers, was tortured, sexually assaulted and abused by Sri Lankan military personnel in 2007. After fleeing to India, he left by boat with others in 2021, intending to seek asylum in Canada. The boat ran into trouble and was escorted by a Royal Navy vessel to Diego Garcia. With the arrival of six other boats in the months that followed, there were 349 migrants in a territory that was was meant to be closed to anyone who was not working, directly or indirectly, for the UK or US governments.
In due course, all left. KP remained because he had been convicted of arson — setting light to his own tent — as well as four offences of sexual assault on an adult woman. He was subsequently imprisoned in Diego Garcia for assault occasioning actual bodily harm. KP had complex mental health problems; he has self-harmed and attempted suicide.
Just over a year ago, he unsuccessfully challenged the home secretary’s decision to exclude him from a group of more than 60 migrants who had been allowed to enter the UK.
His case became more urgent when President Trump launched military action again Iran. On 1 March, the UK government agreed that US forces could use Diego Garcia for defensive purposes. A day later, the commissioner who administers the British Indian Ocean Territory from the Foreign Office decided that, because of the threat from Iran, non-essential staff should be “drawn down” — which presumably means sent home.
An aircraft was chartered with a scheduled departure of around 1200 yesterday, 26 March. Two days earlier, KP’s lawyers had sought an urgent injunction, requiring the home secretary to allow KP to board the flight and enter the UK as the commissioner had recommended.
The case came before Mr Justice Kimblin in the High Court on Wednesday. Edward Brown KC for the UK government told the court that the flight had been delayed until today.
When the hearing resumed yesterday, the judge was told that the flight was now scheduled to leave early this morning, 27 March. It also emerged that the Maldives had agreed to receive KP and allow him to stay for 30 days. Arrangements had been made for a separate chartered flight to take him and his supporting medical staff there this evening.
A government official told the court that KP would not be detained on arrival in the Maldives and the UK government would remain responsible for his care. The Maldivian authorities had confirmed that they would not return KP to Sri Lanka in the light of his protection status.
Kimblin delivered a lengthy extempore judgment yesterday morning and made an approved version available for publication later in the day. He noted evidence that KP’s mental health had improved considerably over the past nine months with the support of a team of private contractors.
The judge said:
One has to be careful to describe situations as unique. However, it seems to me that is so in this case, and it is on that basis that I will make an order which reflects the assurance given by Mr Brown which will facilitate KP’s departure on a flight which has been chartered by the British Indian Ocean Territory Administration.
I will reflect that assurance in my order, within the recitals, and I regard that as sufficient when combined with liberty to apply. Absent that assurance, I would have made an order for interim relief.
Comment
The Tamils’ case has been characterised throughout by a fundamental disagreement between two UK government departments.
The Home Office was not prepared to admit KP in the light of his criminal convictions. The Foreign Office approached 23 countries in the hope of finding one that would accept him.
It’s not known what sort of deal was done with the Maldives. As Mr Justice Chamberlain said in his judgment on the case last year,
when a state such as the UK makes an approach of this kind, the authorities of the state receiving it may have reasons to oblige the UK, whether because they want something in return or because they judge it to be in their own long-term interests to do so. This is how diplomacy works.
The Maldives have agreed that KP can stay for 30 days and it’s not clear what will happen to him after that. But the one place he is never likely to see again is Diego Garcia.
The next episode of A Lawyer Talks will be published on Monday. During the holiday period next week and the week after, posts will be sporadic.