The BIOT Supreme Court Rules Asylum Seekers Detained Unlawfully
27 March 2025
The Supreme Court in British Indian Ocean Territory ruled in December on an important issue concerning the detention of asylum seekers in Diego Garcia. While their cause has progressed (including in a settlement reached on behalf of many, and in this judgment).
Ms Justice Obi, Acting Justice of the Supreme Court of the British Indian Ocean Territory, determined that the Claimants had been unlawfully detained since their arrival in October 2021.
Facts:
Diego Garcia is a military facility as part of the British Indian Ocean Territory (BIOT). In 1966, the UK and US governments signed an agreement (‘the 1966 Exchange of Notes’) to make the BIOT available for defence purposes. It served as the key strategic location for military operations, with roughly 2,500 non-military personnel.
The Claimants are Sri Lankan nationals who arrived on a boat en route to Canada seeking international protection. The boat fell into distress close to BIOT and 56 Claimants were accommodated on Diego Garcia. The asylum seekers were housed in the Camp which consisted of military tents. There were no cooking facilities, very basic schooling facilities, and the Claimants had no access to Wi-Fi or local networks. The below are accounts (summarised) of the life of the Claimants in the Camp:
My family and I are forced to live in a prison, but worse. A prisoner would know how long his sentence is for, but we do not.
And
I feel like a bird being kept in a cage. We cannot wait for the cage to be opened and to finally be free from this place. But right now, we have no choice but to stay here. I cannot take my family back to Sri Lanka or India because I fear that my family and I will be attacked by the Sri Lankan government.
Issues
The Court was faced with two issues: first, were the claimants detained, and second, if they were, had the Commissioner proved that he had lawful authority to detain them at all times?
The Court answered the first question affirmatively and the second in the negative.
The remedies sought by the claimants were as follows: (i) a declaration that the Claimants were unlawfully detained, (ii) confirmation of the start date of the detention, and (iii) a writ of habeas corpus.
Court’s Analysis and Legal Framework
There is no right of asylum on BIOT – neither under the Refugee Convention nor the ECHR. Nonetheless, under customary international law the asylum seekers cannot be refouled to Sri Lanka due to risk of persecution, torture, or ill-treatment.
In November 2023, the United Nations High Commission for Refugees (UNHCR) conducted a visit to Diego Garcia. The team highlighted concerns: (i) the inappropriateness of the facility as a place for asylum seekers, (ii) the failure of the arrangements to meet international standards, and (iii) the ‘mandatory and indefinite basis’ of the conditions in which the asylum seekers were held. The UNHCR also emphasized the detention and its impact on the children.
The law of England applies in BIOT. The common law tort of false imprisonment is established on proof of fact of the imprisonment and the absence of lawful authority to justify the imprisonment as established by Lumba v Secretary of State for the Home Department [2011] UKSC 12. The question of lawful justification must be determined at the time of the imprisonment, and it is irrelevant if the defendant honestly and reasonably believed there was necessary authority to detain.
The counsel on behalf of the Claimants submitted they had been detained since their arrival on Diego Garcia under the Restriction of Movement Orders 2023 and 2024 (RMO(s)). They argued the Commissioner’s defence based on security and safety grounds is fundamentally flawed. Whilst it was accepted that it was entirely appropriate for Claimants to be prohibited from accessing military sites, that does not require their detention in Camp. It was submitted the Claimants would accept reasonable restrictions on their liberty, but the RMO 2023 was a nullity and conferred no power to detain. It was argued it was ultra vires as it was an unreasonable and unlawful exercise of the Commissioner’s power. Moreover, the Camp’s conditions were “deplorable”, and the power of administrative detention cannot exceed an objective reasonable period as established by the second Hardial Singh principle. (The Hardial Singh [1983]principles set out the four principles on the use of powers to detain someone for immigration purposes.)
The counsel on behalf of the Commissioner opposed the above. The primary submission was that the Claimants were not being detained. They are free to leave Diego Garcia and it is their fear of persecution which causes them to remain. Further, if it indeed is detention, then the restrictions are necessary to safeguard the military facility and for the safety of the Claimants. It was further submitted there has been no breach of the Hardial Singh principles.
First Legal Issue
The Court, on the first legal issue, found the Claimants were indeed detained. The Court held it was made clear to the Claimants that upon leaving, if necessary, force would be used to ensure compliance. This could also potentially lead to a criminal sanction. Further, the Court rejected the submission of the Commissioner that the Claimants were “free to leave” at any time. This ignored the reality of the situation. The Court noted that this was “a Hobsonian choice between a poor option and no option at all which is not a genuine choice.” The Claimants said they had a well-founded fear of persecution in Sri Lanka. The Court re-iterated Lord Dyson’s analysis in Lumba that a person should not have to choose between their freedom and being sent back to a place where they may face torture and persecution. The Court also took into factor the compelling evidence given by some Claimants regarding the conditions in the Camp. Whilst there was evidential difficulty, the Court held the Commissioner has not provided any evidence to satisfy that greater freedoms would compromise the security of the military base in this matter.
Second Legal Issue
The Court, on the second legal issue, concerning the legality of the detention, held it was unlawful. There are a few rights more important than the right to be falsely imprisoned as recognised by Lord Brown in Lumba. First, the Court rejected the necessity argument as detention was not necessary based on the circumstances. The Court pointed that it was not in the interests of the Claimants to be detained and this was supported by the UNHCR report. Second, the Court held the RMO 2023 was a nullity as the law did not afford the Commander the power to make law. Third, the Court considered the ultra vires argument and held there must be limits on the Commissioner’s executive power to detain. The reasonableness requirement holds the executive accountable for its actions. The Court analysed the extraordinarily long time of detention and considered the conditions. There was long-term uncertainty, elevated levels of distress, suicidal thoughts and actions demonstrated by some of the Claimants, and the impact on children was all highlighted as by the UNHCR report. This was deemed to be a situation of “rising hopelessness”. It was clear that since the promulgation of the RMO 2023 in July 2023, any lawful authority to detain had long expired. The RMO 2024 was also held to be ultra vires under Section 10 of the Constitution Order.
In December 2024, asylum seekers in the Camp on Diego Garcia were flown to the UK, where they had been granted permission to enter and leave to remain outside the Immigration Rules for six months. Whilst the claim sought the writ of habeas corpus, as the Claimants were relocated, this was no longer necessary for the Court to issue the writ.
Comment
The Court rightly recognised the stringent conditions and impact on the asylum seekers in Diego Garcia. Whilst the Court recognised the difficulty the Commissioner was placed in due to the tensions between the US and UK over the presence of the asylum seekers, it emphasised the crucial right to liberty – as the Court highlighted, “Freedom from executive detention is arguably the most fundamental right of all.”
Tehreem Sultan is a Harvard LLM graduate and works with the charity APPEAL on wrongful convictions and miscarriages of justice issues.
