Reported Case
Sri Lankan asylum seekers stranded in Diego Garcia win right to legal aid (5 May 2023)
Date: 05/05/2023
Ten Sri-Lankan asylum seekers who landed on Diego Garcia in the British Indian Ocean Territories (BIOT) in October 2021 won their judicial review claim in the Supreme Court of the BIOT in a judgment handed down today.
The Claimants were among a group of 89 asylum seekers, including 20 children, who left India by boat on 23 September 2021 with the intention of travelling to Canada. Their vessel fell into distress in the Indian Ocean near the BIOT on 3 October 2021 and they were escorted into port at Diego Garcia by two British Royal Navy vessels. Since their arrival they have been housed in tented accommodation in a secure compound on the island of Diego Garcia.
The Claimants sought international protection but the Commissioner of the BIOT (who instituted a process with assistance from the UK Home Office) has decided that all the Claimants can all be lawfully returned to Sri Lanka.
The Claimants are impecunious, do not speak English and have limited access to communications.
The Claimants, represented by Duncan Lewis and Leigh Day, argued that the Commissioner, who acts as both the executive and the legislature on Diego Garcia, had a duty to provide them with legal aid to challenge his decisions to make removal orders which if carried out will result in their forcible removal to Sri Lanka where they argue they face a real risk of serious harm.
Under s 3(1) of the BIOT Court Ordinance 1983, English law applies in the BIOT, so far as it is applicable and suitable to local circumstances, unless there is an inconsistent law in force. The BIOT has a full and independent administration of justice system, but the Commissioner argued that English legal aid law did not apply by virtue of the Court Ordinance and that there was no common law right to legal aid where it is necessary to ensure the fairness of proceedings.
The Chief Justice of the BIOT, Mr James Lewis KC, found the Commissioner to be wrong on all counts. He held:
in the challenge to the serious and important removal decisions it is difficult if not impossible to see how these impecunious Claimants could fairly represent themselves. As noted above, the power of the state through the BIOT legal system is being used coercively against these Claimants with potential serious consequences. To effectively deprive the Claimants of a fair opportunity to challenge the exercise of that power by refusal of legal aid would be contrary to the rule of law.
The Commissioner for the BIOT has applied for permission to appeal the judgment.
Jeremy Bloom, Solicitor for the First and Second Claimants at Duncan Lewis Solicitors said: "This is a resounding victory for our clients, for all others on Diego Garcia who are in dire need of legal representation in their asylum claims, and for the Rule of Law. The Commissioner will now have to consider their applications for legal aid and fund legal representation for their asylum claims and challenges to any decisions to send them back to Sri Lanka where their lives are at risk. The Commissioner wanted to deny these individuals a right to a fair trial in the context of an asylum decision-making process which is itself unlawful and unsustainable. The Court has made it abundantly clear that this disregard for basic fairness cannot stand."
Tessa Gregory at Leigh Day, Solicitor for the Third to Tenth Claimants said: "The court rightly recognised that there cannot be a concept of lesser justice in the British Indian Ocean Territories. Having a full civil and criminal justice system comes with responsibilities which cannot be shirked for administrative ease. A system of legal aid is urgently needed to ensure fair and effective access to justice for this highly vulnerable group of Sri Lankan Tamils."
The First and Second Claimants were represented by Toufique Hossain, Jeremy Bloom, Simon Robinson, Gina Skandari, Ben Nelson and Guy Atoun at Duncan Lewis. Counsel instructed were Chris Buttler KC, Zoe McCallum and Roisin Swords-Kieley at Matrix Chambers.
The Third to Tenth Claimants were represented by Tessa Gregory, Tom Short, Josh Munt and Blodina Rakovica at Leigh Day. Counsel instructed were Ben Jaffey KC and Natasha Simonsen from Blackstone Chambers.