Situation
Tamil asylum seekers on Diego Garcia have won their legal fight against British authorities from being forcibly returned, amidst a government clampdown, in Sri Lanka on 25 September 2023. Controversy over the applicability of International Refugee Law on the British Indian Ocean Territory (BIOT) resulted in the BIOT Commissioner issuing the decision that 94 asylum seekers could be lawfully returned to Sri Lanka in early 2022.
The asylum claims were decided to be determined in the United Kingdom, through remote interviews, with insufficient legal recourse available for the asylum seekers. Subsequently, in light of limited and denied legal access, improper accommodation, and concerns over the safety of the asylum claimants, the order for their return to Sri Lanka was challenged by the law firm Leigh Day, representing 20 individuals at the time, and put under judicial review in the Supreme Court of BIOT.
Background
The ethnic conflict between the Sri Lankan Government, comprising majority ethnic Sinhalese, and the Liberation Tigers of Tamil Eelam, a separatist group in Sri Lanka, comprising ethnic Tamilians, has witnessed a 26-year civil war ending in 2009. During the conflict and after, ethnic Tamilians have been fleeing Sri Lankan persecution, escaping to India and other countries and living in refugee camps with insufficient sanitation and access to basic necessities.
Intending to escape to Canada and seek asylum, a group of 89 persons set sail from Tamil Nadu, India in September 2021 and were rescued by British authorities on 3 October 2021 and brought to Diego Garcia. Subsequently, two additional boats were rescued on 10 April and 21 June 2022.
The BIOT, created in 1965, had been a part of two separate British colonies, Mauritius and Seychelles, constituting a “new political entity” after the UK ratified the 1951 Refugee Convention. Procedurally, this provided grounds to exclude the territory from automatically falling under the provisions of the Convention. In practice, the customary principle of Non-refoulement obligatorily shields asylum seekers on the territory from being sent back to their country when fleeing persecution.
Impact
The neglect of the circumstances of the asylum seekers by the authorities has resulted in accumulated physical and psychological harm and deprivation. Upon the arrival of the boats, first in October 2021 and in April and June 2022, the asylum seekers were held without access to phone for about six weeks and five weeks respectively creating imprisonment-like conditions. Having staged a hunger strike in May 2022, access to three landlines was provided. Assaults, strikes, and suicide attempts became prevalent in the camps on Diego Garcia as a result of strenuous and unsafe living conditions.
A culmination of factors resulted in around 130 persons voluntarily returned to Sri Lanka where ethnic persecution is a living threat. In an interview with The New Humanitarian, a refugee expressed his view on voluntary return to Sri Lanka, “I was forced to take this decision due to the delayed process. If [the BIOT administration] had taken me to a safe place earlier, I wouldn’t have taken this decision. My health deteriorated more and more, and my mental health was affected. I didn’t know what to do, where to go, or whom to ask for help.” Others expressed being stuck in limbo, weighing their choice between returning to persecution and living in prison-like conditions on the island.
Current Action
The win for asylum seekers in the BIOT court resulted in the Commissioner withdrawing the order for removal to Sri Lanka and refusal of asylum decisions, amending the process to address the deficiencies of these legal proceedings. Further, Statement on Process will now provide for a ‘minded-to’ process requiring the highest standards of fairness in the context of international protection decisions.
The claims for asylum will be assessed anew and be conducted by reviewers with no previous involvement in the cases. This, however, pertains to persons included in the legal battle under Leigh Day’s representation. Yet, as expressed by Diego Garcia’s government recently, efforts are needed to find long-term solutions for migrants on the territory.
The UNHCR, while urging the UK government to streamline the asylum applications processing, is also assisting the refugees on Diego Garcia. Medical treatment, including mental health support, is at the forefront of the UNHCR’s response.
Further, international NGOs are organising fundraising initiatives for providing food, healthcare, and socio-economic support in the camps. Activists at the Human Rights Council and Amnesty International have also welcomed international and national attention on the issue of violence against women, focussing on providing shelters, protection orders, and survivor-centred efforts in this milieu.
The extent of these international efforts illustrate the lack of resources and energy devoted by the British government to handling the migrant situation in Diego Garcia effectively and humanely. The whole affair should serve to bolster the case of the refugees and kick the authorities into action.
Vrinda Sahai
References
https://www.theguardian.com/uk-news/2023/sep/25/tamil-refugees-diego-garcia-win-fight-against-forcible-return-sri-lanka#:~:text=A%20group%20of%20Tamil%20asylum,Lanka%20after%20a%20government%20climbdown.
https://www.leighday.co.uk/news/news/2023-news/asylum-seekers-stranded-on-diego-garcia-win-challenge-against-return-to-sri-lanka/
https://www.theguardian.com/world/2022/oct/16/diego-garcia-uk-accused-tamil-refugees-at-risk-indian-ocean
https://news.sky.com/story/cabinet-ministers-being-sued-by-sri-lankan-tamil-asylum-seekers-falsely-imprisoned-on-diego-garcia-12916628
https://www.tamilguardian.com/content/tamil-refugees-launch-crowdfunder-fight-removal-diego-garcia-sri-lanka
https://www.thenewhumanitarian.org/news-feature/2022/09/15/Diego-Garcia-UK-island-Refugee-Convention
https://www.doughtystreet.co.uk/news/commissioner-british-indian-ocean-territory-has-conceded-protection-proceedings-brought-tamil
https://www.matrixlaw.co.uk/news/supreme-court-of-the-british-indian-ocean-territory-rules-that-there-is-a-right-to-legal-aid/
Tamil asylum seekers on Diego Garcia have won their legal fight against British authorities from being forcibly returned, amidst a government clampdown, in Sri Lanka on 25 September 2023. Controversy over the applicability of International Refugee Law on the British Indian Ocean Territory (BIOT) resulted in the BIOT Commissioner issuing the decision that 94 asylum seekers could be lawfully returned to Sri Lanka in early 2022.
The asylum claims were decided to be determined in the United Kingdom, through remote interviews, with insufficient legal recourse available for the asylum seekers. Subsequently, in light of limited and denied legal access, improper accommodation, and concerns over the safety of the asylum claimants, the order for their return to Sri Lanka was challenged by the law firm Leigh Day, representing 20 individuals at the time, and put under judicial review in the Supreme Court of BIOT.
Background
The ethnic conflict between the Sri Lankan Government, comprising majority ethnic Sinhalese, and the Liberation Tigers of Tamil Eelam, a separatist group in Sri Lanka, comprising ethnic Tamilians, has witnessed a 26-year civil war ending in 2009. During the conflict and after, ethnic Tamilians have been fleeing Sri Lankan persecution, escaping to India and other countries and living in refugee camps with insufficient sanitation and access to basic necessities.
Intending to escape to Canada and seek asylum, a group of 89 persons set sail from Tamil Nadu, India in September 2021 and were rescued by British authorities on 3 October 2021 and brought to Diego Garcia. Subsequently, two additional boats were rescued on 10 April and 21 June 2022.
The BIOT, created in 1965, had been a part of two separate British colonies, Mauritius and Seychelles, constituting a “new political entity” after the UK ratified the 1951 Refugee Convention. Procedurally, this provided grounds to exclude the territory from automatically falling under the provisions of the Convention. In practice, the customary principle of Non-refoulement obligatorily shields asylum seekers on the territory from being sent back to their country when fleeing persecution.
Impact
The neglect of the circumstances of the asylum seekers by the authorities has resulted in accumulated physical and psychological harm and deprivation. Upon the arrival of the boats, first in October 2021 and in April and June 2022, the asylum seekers were held without access to phone for about six weeks and five weeks respectively creating imprisonment-like conditions. Having staged a hunger strike in May 2022, access to three landlines was provided. Assaults, strikes, and suicide attempts became prevalent in the camps on Diego Garcia as a result of strenuous and unsafe living conditions.
A culmination of factors resulted in around 130 persons voluntarily returned to Sri Lanka where ethnic persecution is a living threat. In an interview with The New Humanitarian, a refugee expressed his view on voluntary return to Sri Lanka, “I was forced to take this decision due to the delayed process. If [the BIOT administration] had taken me to a safe place earlier, I wouldn’t have taken this decision. My health deteriorated more and more, and my mental health was affected. I didn’t know what to do, where to go, or whom to ask for help.” Others expressed being stuck in limbo, weighing their choice between returning to persecution and living in prison-like conditions on the island.
Current Action
The win for asylum seekers in the BIOT court resulted in the Commissioner withdrawing the order for removal to Sri Lanka and refusal of asylum decisions, amending the process to address the deficiencies of these legal proceedings. Further, Statement on Process will now provide for a ‘minded-to’ process requiring the highest standards of fairness in the context of international protection decisions.
The claims for asylum will be assessed anew and be conducted by reviewers with no previous involvement in the cases. This, however, pertains to persons included in the legal battle under Leigh Day’s representation. Yet, as expressed by Diego Garcia’s government recently, efforts are needed to find long-term solutions for migrants on the territory.
The UNHCR, while urging the UK government to streamline the asylum applications processing, is also assisting the refugees on Diego Garcia. Medical treatment, including mental health support, is at the forefront of the UNHCR’s response.
Further, international NGOs are organising fundraising initiatives for providing food, healthcare, and socio-economic support in the camps. Activists at the Human Rights Council and Amnesty International have also welcomed international and national attention on the issue of violence against women, focussing on providing shelters, protection orders, and survivor-centred efforts in this milieu.
The extent of these international efforts illustrate the lack of resources and energy devoted by the British government to handling the migrant situation in Diego Garcia effectively and humanely. The whole affair should serve to bolster the case of the refugees and kick the authorities into action.
Vrinda Sahai
References
https://www.theguardian.com/uk-news/2023/sep/25/tamil-refugees-diego-garcia-win-fight-against-forcible-return-sri-lanka#:~:text=A%20group%20of%20Tamil%20asylum,Lanka%20after%20a%20government%20climbdown.
https://www.leighday.co.uk/news/news/2023-news/asylum-seekers-stranded-on-diego-garcia-win-challenge-against-return-to-sri-lanka/
https://www.theguardian.com/world/2022/oct/16/diego-garcia-uk-accused-tamil-refugees-at-risk-indian-ocean
https://news.sky.com/story/cabinet-ministers-being-sued-by-sri-lankan-tamil-asylum-seekers-falsely-imprisoned-on-diego-garcia-12916628
https://www.tamilguardian.com/content/tamil-refugees-launch-crowdfunder-fight-removal-diego-garcia-sri-lanka
https://www.thenewhumanitarian.org/news-feature/2022/09/15/Diego-Garcia-UK-island-Refugee-Convention
https://www.doughtystreet.co.uk/news/commissioner-british-indian-ocean-territory-has-conceded-protection-proceedings-brought-tamil
https://www.matrixlaw.co.uk/news/supreme-court-of-the-british-indian-ocean-territory-rules-that-there-is-a-right-to-legal-aid/