With a looming deadline of Monday 4 September in respect of evidence to the UK Parliament’s Public Administration and Constitutional Affairs Committee on whether effective legislative mechanisms are place in Overseas Territories for British Overseas Nationals, seven Sri Lankans originally the subject of writs of habeas corpus are themselves now on track for naturalisation as British Overseas Territories citizens.

Their getting to that point has been a TCI saga stranger than fiction. As Sir Isaac Newton famously said, every action has an equal and opposite reaction (Philosphiae Naturalis Principia Mathematica 1687): progress to immigration freedom has been as incremental as it has had to be hard fought. Habeas corpus in respect of unlawful detention (successful only on the third attempt, and even then after six months); damages claims for the tort of false imprisonment (successful, but only after legal proceedings); judicial reviews in respect of threatened deportation (successful), translation costs (failed), the right to work pending immigration status (failed) and disclosure of refugee status designation (successful, on appeal); asylum applications (six of seven failed) and asylum appeals (six of six successful).

Exhausting and groundbreaking in equal measure.

Even now, litigation remains pending in the form of judicial review of the failure – so far – to issue travel documents and for which constitutional protection is triggered by their (now) valid legal status in the jurisdiction (final hearing of which is expected to be mid-October 2023).

The circumstances in which habeas corpus proceedings for a total of 15 Sri Lankans failed at first instance in April 2020 has been described before (‘Habeas corpus, the TCI and COVID-19’, Counsel, June 2020). Arriving into TCI in October 2019 via boat from Haiti together with the trafficker (later extradited to the USA and imprisoned in Florida) they were left without translators for several months and without even knowledge that they could ask to see a lawyer. The itinerary for their journey to the TCI is worthy of repetition: Columbo to Dubai, Dubai to Istanbul, Istanbul to Havana, Havana to Kingston in Jamaica, Kingston to Port-au-Prince in Haiti, north to Port-de-Paix. Then an unsafe and overfilled boat. By night. With neither navigational aids nor even lights. Shark-infested waters. Arrested and detained as soon as the boat reached the beach of the Turks and Caicos Islands, on the island of Providenciales.

Access by lawyers to these detained Sri Lankans was first hindered by the practicalities of COVID-19 lockdown. Then via (unsuccessful) challenges to necessary legal standing by which to act for them at all. The very existence at all of a detention centre manual became known only during the course of oral evidence of the then Director of Immigration. When produced, it emerged that manual lacked provision either as to access to lawyers or a familisation to arrivals as to the existence of a system of asylum. In the three+ years that have followed there have been tantalising but unsubstantiated hints in public pronouncements (‘lessons learned’ and ‘capacity building’) that both the manual and related training have been improved.

To put it at its lowest, much scope for that existed then, and continues to exist now.

That unsuccessful habeas corpus proceedings (number two) were the subject of an appeal was covered in the ‘follow-up’ article in Counsel (‘(More) habeas corpus, the TCI and COVID-19: the update’, Counsel, November 2020). Also, that by 20 August 2020 success on the third writs of habeas corpus led to the release of all remaining Sri Lankan (and one Indian) detainees. In an unintended prayer to modern technology, the mid-hearing offer from the relevant government ministers to permit release as a way of avoiding an ordered release arrived via e-mail. It was delivered to the court and rejected orally. By me.

Although the decision on the September-October 2020 appeal of the May 2020 refusal of second habeas corpus arrived too late to impact actual release, in practical respects it was a huge lifetime. 31 December 2020: a 72-page split decision of the Turks and Caicos Islands Court of Appeal – reported at West Indian Reports, WIR (2020) 97 51, and the Law Reports of the Commonwealth, LRC [2021] 3 LRC 270 – allowing the appeal and stating a date certain, at [57], by which detention had become unlawful.

The Court of Appeal’s finding of unlawful detention cleared the way for successful false imprisonment proceedings for all seven Sri Lankans remaining in the TCI and six others that had returned to Sri Lankan in the second half of 2021. Although TCI has since enacted modern limitation legislation, at the relevant time limitation specific to government and derived from the unpopular and long-repealed 1898 England and Wales legislation imposed a six-month limitation period. These false imprison proceedings were defended; for the six Sri Lankans that had returned home, winning them involved the writer travelling to Jaffna, in Northern Sri Lankan and a Tamil stronghold, to document witness statements being voluntarily given. Quite the tale of-and-in-itself. The final hearings (plural) for damages ended in last-minute concessions on liability. Damages payments have been received (at least in part).

Meanwhile all seven remaining Sri Lankans applied for asylum. As is commonplace, during the pendency of such application (including on appeal against any refusal) there was a right to remain in the TCI.

So far, so simple.

The first three asylum applications were made in October 2020. They were refused at the end of that year and appealed in January 2021. They then remained as appeals until 28 June 2023. Meanwhile, the remaining four Sri Lankans submitted asylum applications mid-November 2020.

So far as the asylum applicants or their representatives were concerned, little then happened. For a long time. So little, in fact, that in respect of the first three applications, judicial review proceedings were commenced so as to force a decision. In the TCI that type of compulsory order is still known as a mandamus. Various breaches of ‘Unless Order’ by the government respondents later, the (then) Governor in May 2022 directed re-interview not only of those applicants for whom decisions remained outstanding (that is, not yet on appeal) but also the three who had been refused and who were therefore awaiting decisions on those appeals from the Governor (specifically, not the Minister). That approach by the Governor appear to suggest something of a schism as between local immigration authorities and the United Nations High Commissioner for Refugee representatives who had led relevant (refugee status designation, ‘RSD’) interviews. Whether or not the outcome on appeal was directly related or not, refusal by the TCI government to disclose to the relevant asylum applicant his respective RSD report, based on claims of confidentiality against disclosure, was dismissed in (R (on the application of Ariyaputhiran Ravvikumar and others v. Minister of Border Control, Arlington Musgrove and others [2021] TCACA (26 October 2021); CL-AP 6 of 2021.

By requiring that re-interview, the Governor also raised the legal issue as to how the Minister of Immigration even had the power to require the first three Sri Lankans (who were appellants by then) to be re-interviewed. An application to cross-examine the Governor on that issue failed: see the judgment of Michael Hylton QC J. (Ag.) of 29 July 2022 in CL80/2021, The Queen on application of (1) Kajeepan Paintamilkavalan, (2) Rasaratanam Varatharaj, (3) Silvapalan Jeseepan.

Those re-interviews were undertaken (or at least led) by the UK Home Office, using a form modelled on the UK one. The form ASL4940 as used in the UK was simply reproduced, with the questions on the relevant asylum applicant working during the pendency of the appeal removed.

Following those re-interviews, in December 2022 decisions on all four pending applications for asylum were made: all being refusals. On the three with appeals since January 2021, the Minister for Immigration ignored the appeal for one by simply granting asylum. For the remaining two appellants, the Minister for Immigration purported to refuse ‘live’ applications. Four appeals were then launched in January 2023. The judicial review proceedings seeking a compulsory order for a decision on the appeal of (by then) the asylum grantee was discontinued by consent, but remained pending for the other two appellants.

On 28 June 2023 all six extant appeals were allowed, granting asylum status. That the written notifications of that were provided in English only, and Tamil translations had to be requested and took several days to be provided, exemplified another practical problem in providing effective assistance to these clients: only official notifications were translated. Even those never without a request having first to be made. It took a refusal to be re-interviewed without it for the asylum questionnaire to be provided in Tamil. Most of the other necessary translations had to be self-funded (which, in the most part, meant by the Sri Lankans’ legal representatives).

Of many oddities of those asylum refusals subsequently appealed, there was disagreement by the Minister of Immigration with the UNHCR RSD conclusions and recommendations. Also, in respect of appellants ‘re-interviewed’, from nowhere and without prior warning (so, also, no opportunity to meet such serious allegations) two refusals on the merits in December 2020 were purportedly superceded two years later by findings of support for terrorist activities by effect of which there was automatic exclusion from the 1951 Convention Relating to the Status of Refugees (Article 1(f) of the Convention). There were two other exclusions said to be based on alleged terrorist activity. Such unexpected and serious allegations in respect of all four (briefly) alleged terrorist sympathisers were all the subject of successful appeals.

During the asylum process the position of the TCI government that no asylum seeker has the right to work was successfully defended: Judgment of Carlos Simons J. of 11 May 2022 in [2022] TCASC 12; CL43/2021.

The remaining six asylum grants for the Sri Lankans were dated 28 June 2023. By 11 July 2023, consultation on a major overall of immigration and asylum was announced (‘Ministry of Immigration launches consultation on proposed amendments to immigration ordinance and regulations’, The Turks & Caicos Sun, 11 July 2023).

To the great credit of the TCI government in the sense of at least conceding prior error, legislative amendment is now proposed. This would allow those with pending asylum applications the right to work. Although the proof of the pudding will obviously be in the eating, as it were (no draft legislation has yet been produced). Subject to that, the stated intention is to produce entirely new asylum legislation – separate and apart from immigration legislation.

Incremental victories. Hard fought. Leaving much left to improve. But also leaving seven new lawful residents of the TCI. Each relieved to have his new status and planning for an unexpectedly bright future.