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Some immigration issues

By Reginald Dumas

Shanique Myrie, a young Jamaican woman, was in mid-March 2011 denied entry into Barbados, detained overnight in an airport cell, and deported to her country the next day. Supported by her country, she brought action in the Caribbean Court of Justice (CCJ) against Barbados on a number of grounds. I shall consider only one of those grounds in this article: her claimed “right to free movement in the (Caribbean) Community, more specifically her right to enter Barbados without any form of harassment, (which) is based on Article 45 (of the 2001 Revised Treaty of Chaguaramas) and a Decision of the (28th) Conference of (Caricom) Heads of Government (in 2007).” (CCJ judgment, para. 4.)
As I indicated previously, Article 45 reads: “Member States commit themselves to the goal of free movement of their nationals within the Community.” For its part, the draft report of the 28th meeting says that the Heads “agreed that all Caricom nationals should be entitled to an automatic stay of six months upon arrival in order to enhance their sense that they belong to, and can move in, the Caribbean Community subject to the rights of Member States to refuse undesirable persons entry and to prevent persons from becoming a charge on public funds.”
The CCJ relied heavily on those two texts in coming to its judgment. On the question of undesirability, it said that “undesirable persons are those Community nationals who actually pose or can reasonably be expected to pose ...a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.” These interests, according to the Court, are “public morals, national security and safety, and national health...”, and the threat must be “something prohibited by national law.” (paras. 70 and 71.)
The Court went further and dealt with procedural consequences attendant on the right of entry. It said that “the reasons for refusal (must) be given to a person denied entry. These reasons must be given promptly and in writing ... (and the person must also be informed) of his or her right to challenge the decision. (Accordingly,) Member States (must) provide at the national level an effective and accessible appeal or review procedure with adequate safeguards...” (para. 78.)
There was more: “(It) would only be in exceptional situations that entry... would be denied to Community nationals. (My emphasis.) In (such) cases it would be reasonable...to allow refused visitors the opportunity to consult an attorney or a consular official of their country...or in any event to contact a family member.” (para. 83.)
And the Court issued a general guideline which we would all do well to read carefully and internalise: “Implementation of the very idea and concept of a Community of States necessarily entails as an exercise of sovereignty the creation of a new legal order and certain self-imposed, albeit perhaps relatively modest, limits to particular areas of State sovereignty. Community law and the limits it imposes on the Member States must take precedence over national legislation, in any event at the Community level. It follows...that a refusal on the basis of ‘undesirability’ may be based on national law and on Community law, with the proviso that where national law does not conform with the parameters laid down by Community law, it will be the latter that ultimately must prevail.” (My emphasis.)(para. 69.)
Were the Immigration officers who recently denied entry to the Jamaicans made aware of the implications of the CCJ judgment? I rather doubt it. I suspect they were operating in the way they have always known how; I don’t think they are to be blamed. The fact that the “need for further training of Immigration officers” (in both countries) was one of the issues identified by Ministers Dookeran and Nicholson in their Kingston meeting speaks volumes.
The agreed minutes of those talks show clearly that the CCJ judgment was very much taken into account. On his return home Dookeran held a media conference at which he outlined what had been discussed and arrived at. Promptly came a discordant voice from Minister Gary Griffith, who stressed, in an obvious jab at Dookeran, that Immigration fell within his portfolio. He insisted he wasn’t resiling from his already announced decision to kick out illegals, Caricom and other—they were a burden on T&T. (How, given the CCJ ruling, do we now define a Caricom “illegal”, by the way?) In language disturbingly reminiscent of the Prime Minister’s unfortunate and unforgotten “ATM” remark in 2010, he said that this country was “not a mall, where anyone (would) be allowed entry.”

Both he and the PM subsequently, and with straight faces, sought to assure us that that there was no conflict between the Dookeran and Griffith positions, but the damage had been done. Furious reaction to Griffith’s words came from Jamaica; Karl Samuda of the Jamaica Labour Party was particularly scathing. By contrast, Franklin Johnston, writing in the Jamaica Observer, was far more measured. On deportees, for instance, he said, “We are our own enemy. A few years ago the UK sent back a planeload of us and we ‘suck it up’!—silent night!” He added that T&T “is our second largest source of foreign direct investment.”
In a couple of senses, at least, I’ve been around a bit more than Dookeran and Griffith; perhaps I could therefore permit myself to venture some advice to them. First, Dookeran should not have held a media conference on his Jamaica trip before reporting to the Cabinet; that was impolite and, as things turned out, a considerable irritant to his colleague.
Second, Griffith must learn how to contain himself. He is no longer an Adviser but a Minister, and his words and actions now carry a weight and significance that, as we have seen, go beyond our borders and could have serious implications for us.
But what if, following the CCJ decision, the entry of Caricom nationals into T&T does become a major problem for us? In that case, the government—any government—must go back to the Caricom.
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