The King on the application of KP v Secretary of State for Foreign, Commonwealth and Development Affairs

Hearing date: 12 February 2025

Approved Judgment

This judgment was handed down remotely at 10am on 21 February 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

The claimant is a 34-year old Sri Lankan national of Tamil ethnicity. He is in custody on the island of Diego Garcia in the British Indian Ocean Territory (“BIOT”), serving a sentence of imprisonment for assault occasioning actual bodily harm. He had previously received a suspended sentence after conviction on one count of arson and four counts of sexual assault of a woman. He has complex mental health problems and has self-harmed and attempted suicide. His claim for international protection has been accepted by the BIOT authorities, with the result that he cannot be returned to Sri Lanka.

The Home Secretary decided on 8 November 2024, that she would grant leave outside the rules (“LOTR”) to allow 61 migrants then in Diego Garcia to enter the UK. However, she refused to grant LOTR to the claimant, because of his criminal convictions. The defendants recognise that the claimant cannot remain in Diego Garcia permanently. They say that they are making good faith efforts to find a third country willing to take him and, while these efforts continue, admitting him would be contrary to UK public policy.

The claimant challenges the decision of 8 November 2024 and the ongoing decisions not to make arrangements for his transfer and relocation to the UK. The sole ground of challenge is that the decisions are irrational because there is a serious risk to the claimant's health and life while he remains on Diego Garcia and no realistic prospect of any other country accepting him in the foreseeable future.

A small amount of the material served by the defendants pursuant to their duty of candour was subject to a public interest immunity application. I upheld the application in part, but ordered that some of the material be disclosed into a confidentiality ring, which included the claimant's lawyers but not the claimant himself.

The claim was heard on a rolled-up basis on 12 February 2025. Most of the hearing was in public. There was a short hearing in private pursuant to CPR 39.2(3)(c) and (g) at which submissions were made by counsel for the claimant and defendants about the confidentiality ring material.

Background

Diego Garcia

Diego Garcia is one of the Chagos Islands, an archipelago lying about 1,000 miles south by west of the southern tip of India. The Chagos Islands are currently part of BIOT, an overseas territory for whose external relations the UK is responsible. The Foreign Secretary is the Minister with responsibility for the external relations of the UK and its overseas territories. The legislative and executive functions of the Crown in right of the government of BIOT are conferred on the interested party (“the BIOT Commissioner”).

Diego Garcia has no permanent population but hosts a joint US-UK defence facility, which the UK Government describes as “highly sensitive and strategically important”. A political agreement has recently been reached under which the UK proposes to cede sovereignty over the Chagos Islands to Mauritius on terms which will ensure the continued presence of the defence facility.

The claimant's journey to Diego Garcia

In 2007, the claimant was tortured and sexually abused by Sri Lankan military personnel. He fled to Tamil Nadu in India. In 2021, he was part of a group who set off in a boat hoping to reach Canada, with the intention of claiming asylum there. The boat ran into trouble and was escorted by a Royal Navy vessel to Diego Garcia on 3 October 2021. Between then and December 2022, six other vessels containing migrants arrived. Altogether, that amounted to 349 migrants.

The status and treatment of the migrants in Diego Garcia

On arrival in Diego Garcia, the claimant and his group sought international protection. They were accommodated in a camp at Thunder Cove, where they were given food and medical treatment. Some educational provision was made for the children. However, their freedom to move around the island was limited. On 16 December 2024, Acting Judge Margaret Obi, sitting in the BIOT Supreme Court, held that in all cases this amounted to unlawful detention. She held that the situation of the claimant (and VT) was “even more stark” while they were accommodated in a building known as the short-term holding facility (“STHF”), other than during the period when serving a custodial sentence. The BIOT Commissioner has applied for permission to appeal to the BIOT Court of Appeal. However, he had conceded before Acting Judge Obi that KP and VT were “factually detained” during the periods when they were accommodated in the STHF: see at [80].

The UK has not extended the Refugee Convention or the European Convention on Human Rights (“ECHR”) to BIOT, so the claims by the claimant and others for international protection did not fall to be considered under either of those instruments. Instead, the BIOT Commissioner devised a bespoke procedure for assessing whether returning the migrants to the countries of which they were nationals would infringe the customary international law (“CIL”) prohibition on refoulement.

The majority of the migrants left voluntarily, many of them to Sri Lanka. Of the remainder, most received negative international protection decisions. Eight, including the claimant, received positive decisions, with the result that the defendants accept they cannot be returned to their countries of origin.

The claimant's stay in Diego Garcia

The claimant was initially accommodated in the main camp at Thunder Cove. He struggled with his mental health from the outset. His medical records mention suicidal ideation, anxiety and depression from September 2022. In April 2023, he self-harmed by swallowing a fishing hook and razor blade. In May 2023, he attempted to drown himself. In June 2023, he set fire to a tent while inside it. In July 2023, he removed his clothing, cut his neck and wrists with a razor blade and began striking himself with a chair.

At this point the claimant was relocated from the main camp to a laundry room. This was a concrete room which on one side was open to the elements save for a wire mesh, so that the claimant could be observed. He shared this room with another migrant for three months and occupied it alone for a further five months. He self-harmed by swallowing blades in August and December 2023. In November 2023, following a monitoring visit, the United Nations High Commission for Refugees (“UNHCR”) said that it was “deeply concerned” by the conditions in which he was being kept.

On 31 May 2024, the claimant was convicted before Diego Garcia Magistrates' Court of arson (committed in June 2023, when he set light to his own tent) and four offences of sexual assault on an adult woman (committed while in the main camp in January 2023). On 3 June 2024, he was sentenced to 20 months' imprisonment, suspended for 12 months. At this point, he was returned briefly to the main camp and then to the STHF. While in the STHF, he was under constant surveillance, but continued to self-harm, swallowing coins on 12 July 2024 and a piece of hard copper wire on 19 August 2024. The latter necessitated his medical evacuation to Bahrain for treatment.

On 17 October 2024, the claimant was convicted of assault occasioning actual bodily harm. The offence was committed in May 2023, when he tried to drown himself and then assaulted a security officer who came to his aid. The BIOT Magistrates' Court accepted that the offence had occurred during the course of a genuine suicide attempt, but imposed an immediate custodial sentence of 24 weeks' imprisonment. He was initially detained on his own at the Diego Garcia police station in a small cell with no natural light. He experienced auditory hallucinations and banged his head against the wall. His representatives sent pre-action correspondence threatening to challenge his continued detention there.

On 2 November 2024, the claimant was moved from the police cell to the STHF, part of which had by this time been designated as a prison. He remains there today. For most of that time, he has been imprisoned with VT, but VT is shortly to be transferred to Montserrat under the Colonial Prisoners Removal Act 1884 (“the 1884 Act”).

The evolution of the Government's policy in relation to the migrants in Diego Garcia

The Camp at Thunder Cove was visited in May and June 2024 by a social worker engaged by the BIOT Commissioner and by Beth Stamp, the Foreign, Commonwealth and Development Office (“FCDO”) Safeguarding Lead for the Overseas Territory and Polar Directorate. On 26 June 2024, the BIOT Commissioner wrote to the Minister for the Overseas Territories and the Foreign Secretary recommending that families with children, those migrants whose international protection claims had been successful and one particularly vulnerable individual (39 individuals in all) be admitted to the UK.

Immediately after the General Election, advice in similar terms was submitted to the new Foreign Secretary. On 16 July 2024, the Foreign Secretary's Private...