The UK's other migrant crisis – and the Scottish solicitors taking it on

On an island 1,000 miles off the coast of India, boatloads of refugees are living in uncharted territory.

They arrived on Diego Garcia, the largest island in the secretive British Indian Ocean Territory (Biot) as long as 13 months ago, entering a “legal vacuum” when their floundering vessel was towed to shore. Now one Scottish law firm is trying to chart their way out.

It is a case, the firm says, which could eventually end up before the Privy Council, such is its uniqueness and complexity. And it is one that is playing out against the backdrop of intensifying political pressure over asylum and immigration issues here in the UK. 

UK net migration reached 504,000 in the year to June in what the Office for National Statistics (ONS) says is an all-time high. That was driven by arrivals from outwith the EU, the ONS said, and as regular cross-border travel resumed after the long Covid hiatus. The acceptance of thousands of refugees from Ukraine and Afghanistan, and of those fleeing Beijing’s clampdown on Hong Kong, has also contributed.

The numbers were confirmed weeks after Home Secretary Suella Braverman boarded a military helicopter to visit the vastly overcrowded Manston camp – where there have now been confirmed deaths and cases of diphtheria – used to house asylum seekers awaiting processing, and described the continued arrival of small boats across the English Channel as an “invasion”.

“We have failed to control our borders,” Braverman subsequently told the Home Affairs Select Committee. “The prime minister and I are absolutely determined to fix this problem.”

More than 40,000 people have crossed the English Channel in small boats in 2022, official figures show, and as inward migration is blamed by some for everything from housing shortages to NHS pressures, it is perhaps small wonder that more attention is not being given to those in Biot, a place that is largely unknown. Out of sight and out of mind.

With Sri Lanka to the north, Tanzania to the west and Indonesia to the east, Diego Garcia is the largest of the 58 Chagos Islands, an Indian Ocean archipelago severed by the UK from Mauritius in 1965, three years before that country gained independence from the British Empire.

In a move which created its own refugee crisis, all 2,000 residents were forcibly displaced to allow for the creation of a US military base on Diego Garcia. Expelled Chagossians went to the Seychelles, Mauritius and the UK, where it took until 2002 for them to gain the right to apply for British citizenship.

In 2019, the International Court of Justice ruled that the British occupation of the islands was illegal and in 2021 the International Tribunal for the Law of the Sea did the same. And though the UK has now agreed to open talks with Mauritius about a future handover of the islands, Biot remains British.

Constitutionally distinct and separate from the UK, with its own laws and administration, it is led from London by a Crown-appointed commissioner, currently Paul Candler. Permits are needed to enter, and access to Diego Garcia itself is restricted to “those with connections either to the military facility or to the territory’s administration”. Philatelists can order Biot stamps featuring local fauna from its online shop, but those who enter local waters without express permission risk three years imprisonment and a £10,000 fine, such is the stringent security.

But in October 2021, a boat sinking off the coastline was brought to safety by a British Navy vessel and its passengers taken on-land.

Carrying ethnic Tamils from Sri Lanka and the refugee camps of India, it was heading past, not to, the Chagos islands, and was followed in April and June this year by two other vessels. The number of asylum seekers rose to more than 170, and the Tamils became the unexpected temporary residents of one of the world’s most secret places, living in a tented and fenced encampment on the military base. Those numbers have since fallen, with a handful volunteering to return to Sri Lanka in spring and scores more requesting repatriation later.

As UK authorities begin to reject the asylum of those who remain, there is concern amongst solicitors about what happens next.

Sri Lanka – another island nation once controlled by Britain – is suffering an economic crisis far more acute than that of the UK. The UN has renewed its appeal for humanitarian aid for the 3.4 million people there after food price inflation reached 85 per cent. The poverty rate has doubled and there has been a crackdown on peaceful protest, with student activists detained under anti-terrorism laws. 

UN experts and human rights groups have criticised the use of those laws, which enable practices including arbitrary arrest, detention without charge or evidence, and forced confession. The bloody civil war between Tamil militants and the majority-Sinhalese government may have ended, but state vigilance against residual support for the Liberation Tigers of Tamil Eelam (LTTE) remains, as do claims of torture and maltreatment by those accused of sympathising with that cause. 

Many of those in Diego Garcia claim to have been subjected to such treatment, and say it is unsafe for them to return.

However, the islands are not covered, authorities argue, by the UN Refugee Convention, and so there is no clear legal path to sanctuary for them. So, who is responsible for them, and where should they go?

In a Glasgow city centre office 6,000 miles away, solicitors Euan MacKay and Alexander Heeps argue that the answer to that is the UK. Their 25 clients have a strong case for asylum, they say, and Biot shouldn’t be treated as distinct from the rest of the UK.

The firm, which specialises in immigration and asylum, is working pro bono and across time zones as the only Scottish member of a legal network coordinated by London legal powerhouse Leigh Day.

The Glasgow practice was approached due to its “extensive” expertise on Tamil cases, partner Euan MacKay says, but this case is “completely novel”. “These people don’t have any other help,” he says. “I just said we would be absolutely delighted to get involved to test the law.

“Biot is its own strange entity. It has a commissioner and they are in charge. The UK Government says it’s not a matter for the Foreign Office nor the Home Office, because [our clients] are not in British territory.”

The Diego Garcia case comes more than 20 years after another boat bearing asylum seekers from countries including Iraq and Sudan was rescued by British forces off the coast of Cyprus, with the passengers taken to the military bases retained as UK sovereign territory there after colonial control ended. The Home Office also argued that the UN Refugee Convention did not apply here, but in 2017 a court said otherwise, because the bases were the continuation of a colonial territory.

But in Biot’s case, it’s different. The islands that now form Biot were once part of two different colonies – Mauritius and the Seychelles – and are therefore, the judges said, a new political entity created after the UN convention was ratified. 

Under the principle of non-refoulement – a key tenet of international law – receiving states should not act in any way which leads to the return of individuals to an unsafe place. But staying in place indefinitely is no option for those on Biot, where conditions have been described as “prison-like” due to the tight military security and lack of civilian facilities. “They’re desperate to get off the island,” MacKay says. “They were allowed to go to the beach for the first time in late summer,” Heeps adds. “They were happy when the diet changed from boiled fish and rice and they were suddenly given fruit and coffee. That was a huge thing for them.”

The legal network is working pro bono because there is no public funding available to those on Diego Garcia, and they lack the private means to pay, with McGlashan MacKay currently crowdfunding to cover interpreters and other costs. “The fact is that our clients have been waiting for more than a year to find out their future. They’re held in tents with the barest of facilities and support, and Biot hasn’t provided legal representation,” says Leigh Day lawyer Tom Short. But the lack of funding, and the necessity of using video links, has made it difficult to gather medical and other evidence that would normally be used to back up claims for sanctuary. 

And now notice has been given to 30 people, including some McGlashan MacKay clients, that their claims have been rejected by the Biot commissioner. Offers of a flight and £1,500 are on the table. “They are all very poor people in a desperate situation. They have endured 13 months on this island away from friends, family and their previous lives with literally nothing,” Short says.

While Biot law does not provide for the right of appeal, they are able to apply to the Biot courts for a judicial review of the decision to return them to Sri Lanka. It’s a lengthy process and solicitors are in talks with their clients about their next steps. “The legal position of Biot is very complex, both because its current legal system is a creation of the UK and because this situation has not arisen there before. The UK Government is distancing itself from the situation but it’s clear that the FCDO is at the heart of decision-making. It’s a phenomenally complicated thing as to what laws really apply.

“The reaction from the government is deeply unhelpful,” he says. “It’s very, very difficult for our clients. The political environment is not in their favour; this is a place far away, a small remote place. This isn’t something that’s going to resonate widely, but that doesn’t change the fact that these are people fleeing persecution and torture who need assistance. 

“It has exposed a legal black hole. The UK controls this island and, now that people have turned up on it, appears to want to wash its hands of any responsibility.”

That’s something the UK Government denies. “The Biot administration and UK Government has been working tirelessly to find a long-term solution to their current situation,” a Westminster spokesperson said.

“The welfare and safety of migrants have at all times been top priority. The Biot administration has ensured provision of food, communications and medical support as well as for education and welfare.

“The decision that these individuals can be safely returned to their country of origin has been reached following careful consideration of individual circumstances, in accordance with applicable international human rights law.”