He was reacting to the latest incident in which 13 Jamaicans were denied entry and deported from T&T by the authorities. Nicholson said the region needed to be assured that immigration authorities are abiding by the agreements reached between the foreign ministers of both countries.
This, he said, included the parameters established by the ruling of the Caribbean Court of Justice in the Shanique Myrie case concerning both the landing of CARICOM nationals and how prospective returnees are to be treated.
Nicholson, who has been holding talks with his Trinidad and Tobago counterpart, Winston Dookeran following a similar immigration issue just over a year ago, said “Mr. Griffith continues to concentrate on the number of Jamaicans who have been admitted into T&T, which consists of over 90 per cent of those who travel to the twin-island republic.
“We suggest that the Trinidad and Tobago security minister refrain from continuing to muddy the integration waters,” Nicholson declared.
A document prepared in 2013 by the CARICOM Secretariat's General Counsel points out that the Caribbean Court of Justice (CCJ)has held that, unlike third country nationals, all CARICOM nationals have a right to enter another CARICOM country for an automatic stay of six months “hassle free” or “without harassment or the imposition of impediments”.
There are two exceptions to this right, which permits a Member State to refuse entry or a six-month stay
- Where the CARICOM national is undesirable, or
- to prevent the CARICOM national from becoming a charge on the public purse.
However, immigration officials do not have wide discretion to apply these exceptions. Member States must ensure that they adhere to Community law and standards in relation to the right of entry, even where their national laws may differ. The Court provides guidance for the application of these exceptions.
What does undesirable mean?
The Court has stated that to consider a CARICOM national “undesirable” he/she must be a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, such as the protection of public morals, maintenance of public order and safety, protection of life and health.
The Court also suggested that a reasonable test for assessing such a threat is that, as a starting point, it must be shown that the visitor poses a threat to engage in activity prohibited by national law, and that nationals who engage in such activity are also prosecuted or sanctioned.
How will immigration officials determine if a CARICOM national may become a charge on the public purse?
A CARICOM Member State is entitled to assess on a strict, narrow, case by case basis whether a visiting CARICOM National may become a charge on public funds during his/her stay in the country. An assessment of whether a CARICOM national is likely to become a charge on the public purse may consider whether the national appears to be in a position to support himself during his intended length of stay.
The Court has indicated that in seeking to make such an assessment it is reasonable for authorities to assess whether the Community national has sufficient funds for the period the visitor intends to stay (as evidenced by his return ticket). The relevant factors may include cash, credit cards, access to funds, or being hosted in the receiving country. However, the Court has made it clear that it is not reasonable to require a visiting Community national to show sufficiency of funds for a period of six months if the national does not intend to stay that long.
Immigration officials may therefore ask to see the return ticket, as evidence of the intended length of stay. If the national does not have a valid return ticket, the national may be given the opportunity to obtain one.
Other than the above exceptions which are to be interpreted strictly and narrowly, every CARICOM national is entitled to be admitted to enter a CARICOM country and for his passport to be stamped for six months, regardless of his intended length of visit (in-transit, meeting, visa request or otherwise). He is also within his rights to extend the duration of his ticket within the six month period if he so desires.
WHAT DOES THE RIGHT OF DEFINITE ENTRY GIVE A CARICOM NATIONAL?
All CARICOM Nationals are entitled to entry into another CARICOM Member State, with an automatic six month stay. Both entry and stay must be definite and hassle free.
The right of entry for six months is to be extended to a visiting CARICOM National. CARICOM Nationals who are granted a six months definite stay cannot automatically –
• stay indefinitely
• take up residence
• work without permission
• provide services
• establish a business
A CARICOM National who wishes to stay beyond six months or conduct the above activities in another CARICOM country can only do so pursuant to the relevant Community regime, or national laws. A CARICOM National who wishes to change his/her status as a visitor during his stay, must apply to the appropriate authorities and provide the required documentation, as a CARICOM Skilled National or a service provider, or apply for a work permit or permission to reside. A Member State that receives such an application would do so in accordance with national law and Community law.
It should be noted, however, that in the general application of the right of definite entry, that the purpose of the visit is irrelevant, once it is not unlawful.
WHAT IS EXPECTED OF A CARICOM NATIONAL ENTERING ANOTHER CARICOM COUNTRY?
CARICOM Nationals are required to –
• present proof of nationality of a CARICOM Member State (passport issued by a CARICOM Member State)
• show a return ticket on arrival
• abide by the laws of the receiving CARICOM country
WHAT HAPPENS IF A CARICOM NATIONAL IS REFUSED ENTRY?
Where a CARICOM National is being refused entry into another CARICOM country, the Court has determined that the following procedures should be applied –
• The State must promptly give written reasons for a decision to refuse entry.
• The State must inform the Community national of his or her right to challenge the decision.
• The State must provide an effective and accessible appeal or review procedure with adequate safeguards to protect the rights of the person denied entry both administrative and judicial.
• CARICOM nationals refused entry should have an opportunity to consult an attorney or a consular official of their country or to contact a family member.
While this case arose from the 2007 Conference decision, the judgment is applicable to the right of entry of all CARICOM nationals, which would include entry pursuant to any of the free movement regimes (i.e. Skilled Nationals, Right of Establishment, Provision of Services). CARICOM Member States are required to ensure that the above procedures are applied, whether through legislation or administrative action.
WILL ALL CARICOM NATIONALS WHO ARE REFUSED ENTRY GET COMPENSATION?
No. The refusal of entry must be shown to constitute a breach of the right of entry, such as improper grounds for refusal, or a breach of the procedural requirements as set out by the Court.
The Court awarded pecuniary and non-pecuniary damages in this particular case, based on the particular facts which were proven to the satisfaction of the Court. The pecuniary damages (BDS$2240) represented certain travel and medical expenses which were proven by the Claimant. The non-pecuniary damages (BDS$75,000) were awarded because of the serious breaches of the right of entry (from arrival to unlawful departure), which the Claimant was able to prove.
However, the Court noted the following -
- This was not an award for damages for breaches of human or fundamental rights.
- The award of damages is not to be considered a remedy for assault or unlawful detention which are not actionable before the Court in its original jurisdiction.
- This award is not necessarily a precedent for all breaches of this right. The very serious circumstances of this breach merit compensation, however, the Court may consider in other cases of breach of right of entry that a Declaration of breach is appropriate relief.
DO DECISIONS OF THE COMMUNITY NOW TAKE EFFECT IMMEDIATELY IN DOMESTIC LAW?
The Court held that, in the absence of any indication to the contrary, a valid decision of a Community Organ or Body is immediately binding at the Community level. Domestic legislation is not required for the creation of a legally binding right for Community nationals at the Community level.
This does not mean that a decision or treaty of CARICOM has immediate and direct effect in national law. This means that Community law, whether created a by a treaty or decision, establishes an obligation for Member States to comply with the treaty or decision. Compliance by a Member State may require amendment of legislation; however, the Community law does not amend national legislation and cannot be enforced at the national level without such transformation into domestic law (Article 240).
Community law or obligations may be enforced at the Community level via any of the dispute settlement mechanisms set out in Chapter Nine of the Revised Treaty. This includes application to the Caribbean Court of Justice in its Original Jurisdiction by a Member State, the Community or a CARICOM National.
Member States are obliged, however, having consented to the creation of Community obligation, to ensure that their domestic law reflects and supports Community law.
DOES THE FACT THAT A COUNTRY SUBSCRIBES TO THE APPELLATE JURISDICTION OF THE CCJ CREATE A GREATER OBLIGATION TO COMPLY WITH DECISIONS OF THE COURT IN ITS ORIGINAL JURISDICTION?
The CCJ has two jurisdictions, pursuant to the Agreement Establishing the Caribbean Court of Justice – Original and Appellate. In the Original Jurisdiction, the CCJ functions as the Court identified in Chapter Nine of the Revised Treaty i.e. as the only Court with the compulsory jurisdiction to interpret the Revised Treaty. When the Court sits in this jurisdiction it is an international court, with a treaty-based jurisdiction, applying principles of international law.
As an Appellate Court, it is the final court of appeal for those countries which have enabled this jurisdiction in their national legislation – Barbados, Guyana and Belize. Although the judges are currently drawn from the same pool, when they sit in the Appellate Jurisdiction, they constitute a national court for the relevant country. There is no overlap or relationship between the two jurisdictions.
The Court cannot, in its Appellate Jurisdiction take any decisions regarding the Revised Treaty, or compliance by a Member State with its Community obligations. Accordingly, the obligation to comply with a judgment of the CCJ in its Original Jurisdiction does not differ whether or not a Member State is a party to the Appellate Jurisdiction.
Office of the General Counsel
16 December 2013
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