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UK territory accused of ‘unfair’ asylum screening after Tamil deportation U-turn

‘We found that there were massive issues with the interpreters that they used.’

Photographed is the inside of a tent in the asylum seeker compound in Diego Garcia. There are two beds inside the tent. Supplied
An asylum seeker provided The New Humanitarian with this photograph of the interior of a tent on Diego Garcia where those being held on the island sleep.

A group of Tamil asylum seekers who have been held on the British Indian Ocean Territory (BIOT) island of Diego Garcia – some for two years – have won a reprieve from being deported to Sri Lanka.

BIOT Commissioner Paul Candler’s reversal came just days before the territory’s supreme court was scheduled to hear a challenge brought by 10 asylum seekers, on 25 September. The group are part of 61 asylum seekers currently being held on the island, most of whom were slated to be forcibly removed to Sri Lanka after Candler rejected their bids for international protection.

Lawyers planned to argue that the commissioner’s screening process prevented asylum seekers from responding to evidence that would lead to their deportation, and that there were serious translation errors.

“They’ve run a completely unfair process, which they’ve now had to scrap, and decisions have been withdrawn,” Tessa Gregory, a lawyer at the London-based law firm Leigh Day, told The New Humanitarian. “It beggars belief that we got this far along in our challenge before they withdrew the decisions.”

Candler’s office did not respond to questions about the lawyers’ arguments or his reasons for reversing the removal order. A court document, however, states that the commissioner has agreed to re-evaluate evidence submitted by the asylum seekers.

“To ensure all evidence is taken into account when taking a final decision on migrants’ cases, the commissioner has introduced an additional step in the process to ensure new evidence can be considered,” a spokesperson for the UK’s Foreign, Commonwealth and Development Office, which oversees Diego Garcia, told The New Humanitarian.

The Tamil asylum seekers being held in Diego Garcia have attracted headlines in the past year after some tried to kill themselves and were sent to Rwanda for medical treatment. 

The group, which includes Sri Lankan Tamils born in Sri Lanka as well as some born in refugee camps in India, started arriving in October 2021, when the first boat fell into distress offshore. British forces rescued the passengers and brought them onto the island, which hosts a sprawling and secretive US military base.

For those who have stayed on the island, the years-long wait for a decision on their future has left many in a state of poor mental health.

All said they were fleeing persecution by Sri Lankan and Indian authorities, and some said they had been tortured and sexually abused by Sri Lankan or Indian security forces for alleged links to the Liberation Tigers of Tamil Eelam (LTTE) – a separatist group that fought for independence during a 26-year-civil war against the Sinhalese-dominated Sri Lankan government.

By July 2022, 173 asylum seekers were being held on the island, but after being told they would have no opportunity to seek asylum in the UK, most left. Some accepted payment from the UK to voluntarily return to Sri Lanka by plane, while others set out by boat to seek asylum on the French island of Réunion.

For those who have stayed on the island, the years-long wait for a decision on their future has left many in a state of poor mental health, according to a UK court judgement issued in March. Several have alleged bullying by G4S security guards, and there have been at least two reported incidents of sexual assault in the camp where they are being housed. At least five have also tried to kill themselves by swallowing sharp objects, the judgement said.

G4S declined to comment on the allegations of bullying, saying: “G4S treats the migrants on the island with dignity and respect at all times.”

As part of their court argument, lawyers also cited comments made in March 2022 by the UK’s then-foreign secretary, Liz Truss, who said that because of the lack of facilities on Diego Garcia and “a credible threat of mass suicide… processing the group in the UK represents the only option”.

Truss, still a member of the UK parliament, did not respond to questions about her previous statements.

Lost in translation

The UK considers BIOT to be a separate legal jurisdiction where the 1951 Refugee Convention, and by extension other rights asylum seekers enjoy in the UK, do not apply.

These rights include allowing asylum seekers to respond to any findings that could lead to their deportation.

Following interviews with interpreters in 2021 and immigration officers in 2022, the asylum seekers on Diego Garcia were not given this opportunity, Gregory said.

The group on Diego Garcia have also been denied funding that is usually available to asylum seekers in the UK.

For instance, arguments submitted by the asylum seekers’ lawyers to the court said the commissioner concluded that one woman’s account was not credible because she claimed she would be a single female head of household if sent to Sri Lanka. 

“Had the Commissioner put this to [her], she would have explained she was separated from her husband, her uncle was dead, and there was no other male relative who could be expected to support her,” the lawyers said in arguments submitted to the court.

The group on Diego Garcia have also been denied funding that is usually available to asylum seekers in the UK. 

The funding, known as legal aid, would have allowed the group to produce evidence to corroborate their accounts of persecution in Sri Lanka, such as medical reports, and to correct translation errors that led to their claims being rejected.

“We found that there were massive issues with the interpreters that they used,” Gregory told The New Humanitarian.

In one instance, the commissioner rejected the claim of an asylum seeker who had said a photograph of his mother had been published by Sri Lankan media in 2015 and 2021. 

The commissioner interpreted this as an inconsistency, but according to the lawyers, “the transcript shows that [he] clearly explained that his mother’s photograph appeared twice, once in a newspaper in 2015, and once on television in 2021”.

In June 2022, the lawyers expressed concerns over previous translation errors and requested audio recordings of their clients’ interviews, as well as legal aid, but Candler denied these requests.

The FCDO spokesperson did not respond to questions about why these requests were denied.

‘Long road ahead’

Lawyers for the asylum seekers said their clients are relieved that they won’t be immediately deported to Sri Lanka but, according to Gregory, “there’s still a long road ahead”.

Even after the asylum seekers’ cases are re-evaluated, some may be rejected again, and, since the UK will not accept them, those whose claims are upheld will have to wait for a “safe third country” to take them in as refugees.

Four asylum seekers have been approved for international protection by the BIOT commissioner and informed that efforts are being made to take them to a “safe third country”. Three were evacuated to Rwanda for medical treatment following suicide attempts in March, and one remains on Diego Garcia.

“We continue to work hard on the question of a safe third country, and it may be that it will take us several months before we are successful,” UK diplomat James Thornton told the asylum seekers in Rwanda during a call in late September.

Edited by Paisley Dodds. 

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