A landmark decision by the top regional court in a case brought by Jamaican Shanique Myrie against the Barbadian Government is being seen as paving the way for freer movement in Caricom for Guyanese and other nationalities.
On Friday, the Caribbean Court of Justice (CCJ) tossed aside a series of defences thrown up by Bridgetown and awarded Myrie non-pecuniary damages for the violation of her right to free movement within the Caribbean Community as enshrined in a 2007 decision by the regional body.
Myrie, whose complaint against Barbados drew widespread interest in the region, had also complained about a dehumanizing cavity search by a policewoman and the court found her to be a credible witness in relation to this complaint. However, it was the CCJ’s findings in relation to a 2007 decision of Caricom on free movement in the community and the relevant articles of the Revised Treaty of Chaguaramas (RTC) which will pressure Caricom states like Barbados to ensure their national procedures are not inconsistent with community law or face the risk of similar, costly lawsuits in the future.
Myrie, then 22, had left Jamaica on March 14, 2011 for the first time for Barbados and her initial encounter with an immigration officer led to her being referred to a senior immigration officer. He subsequently granted her permission to stay but this decision was reversed by a male police officer after he and a female police officer questioned her about drugs, searched her luggage and had her detained in unsanitary conditions until the following day when she was deported to Kingston. Myrie had said that it was while she was under the control of the two police officers she was body-searched and subjected to ridicule about her nationality. She filed legal proceedings before the CCJ on May 17th, 2012 and the Government of Jamaica later applied for intervener status and was approved.
The Jamaican woman had submitted to the court that her right to free movement in the Community, more specifically to enter Barbados without any form of harassment, is based on Article 45 of the RTC and a Decision of the Conference of Heads of Government of the Caribbean Community taken at their Twenty-Eighth Meeting (“the 2007 Conference Decision”). Argument by argument, the CCJ proceeded to take apart Barbados’s case in Friday’s highly anticipated ruling. It cited the 2007 decision which said that “The conference 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.”
Agreed, not decided
Before the court, Barbados argued that the 2007 Conference Decision was ineffective because it uses the word “agreed” and not “decided”.
The CCJ stated that Caricom has pointed out in its submissions to the court that it is not unusual for the Community to record its decisions while using the word “agreed”. This is reflected in several documents which have been submitted to the Court. Thus, the CCJ said that in the report of the Second Joint Meeting of the Council for Trade and Economic Development (COTED) and the Council for Human and Social Development (COHSOD) the “agreement” reached at the Conference was consistently referred to as a decision and the conference urged member states to implement the decision taken at its Twenty-Eighth Meeting so that CARICOM Nationals travelling to other Member States should be granted a “definite entry of six months …”
The CCJ therefore found that it was of no consequence that the 2007 Conference Decision uses the word “agreed” and not “decided”. Barbados had also argued that a “reservation” entered by Antigua and Barbuda rendered the decision ineffective.
The CCJ differed. It said there was no evidence to indicate that this “reservation” was intended as a veto or that the decision was not duly made. Further, it noted that all CARICOM states including Antigua and Barbuda were served with notice of these proceedings but made no appearance. In addition, the CCJ found that the Conference, the CARICOM Secretariat and the various Organs of the Community have all regarded and treated the 2007 Conference Decision as valid and binding.
Another aspect of Barbados’s case against Myrie was that Article 240 of the RTC required the Conference Decision to be domestically enacted before it becomes binding. The CCJ said; “The Court, however, disagrees with the submission that the 2007 Conference Decision could not have created a legally binding right for Community nationals since Barbados has not as yet enacted that Decision domestically as required by Article 240(1) RTC.”
Presumption
The CCJ noted that the basic presumption of the Barbados Immigration Act is that persons who are not citizens or permanent residents of Barbados have no legal right to enter the territory. While generally this is a correct reflection of international law regarding immigration, the CCJ said that the RTC and more particularly the 2007 Conference Decision brought about a fundamental change in the legal landscape of immigration throughout the Community.
“In contradistinction to foreigners in general, Community nationals now do have a right to enter the territory of Barbados and that of other Member States unless they qualify for refusal under the two exceptions mentioned above”, the CCJ ruled.
The court pointed out that Article 240 RTC is not concerned with the creation of rights and obligations at the Community level but speaks to giving effect to such rights and obligations in domestic law. It said that this is clearly reflected in its second paragraph which mandates Member States to give effect to decisions of competent Organs and Bodies in their municipal law so as to allow Community nationals to enforce their rights at the national level and in the municipal courts.
The CCJ posited that “If binding regional decisions can be invalidated at the Community level by the failure on the part of a particular State to incorporate those decisions locally the efficacy of the entire CARICOM regime is jeopardized and effectively the States would not have progressed beyond the pre-2001 voluntary system that was in force”. The CCJ contended that the original jurisdiction of the Court has been created to ensure observance by the Member States of obligations voluntarily undertaken by them at the Community level. Further, the CCJ said it is the obligation of each State, having acquiesced to the creation of a Community obligation, to make certain that its domestic law reflects and supports Community law.
Articles 240 (2) and Article 9 of the RTC taken together require Member States to fulfil the obligations arising out of the RTC as well as those stemming from decisions taken by the Organs and Bodies of the Community. In some cases it may require that a State needs to enact or vary legislation to make its municipal law entirely consistent with those decisions.
“To state, however, that international rights and obligations resulting from a Conference Decision are created and binding at the Community level only when they are incorporated into domestic law leads to absurdity, as it cannot possibly be explained how one can “incorporate” a norm that does not yet exist. Further, if domestic incorporation were a condition precedent to the creation of Community rights, an anomalous situation would be created when some States incorporated the Decision and others had not. This would be untenable as it would destroy the uniformity, certainty and predictability of Community law”, the CCJ ruled.
The CCJ recommended that as a matter of good practice the Community should fix a time frame within which such decisions should be implemented after which the decision becomes effective with the result that a delinquent State is automatically in violation of the RTC. It said that this approach has the value of providing legal certainty to Community nationals while at the same time enabling Member States to prepare for the implementation of the obligations that accompany the decision.
Judicial review
The next plank of the Barbadian case was that the activities of border officials are excluded from judicial review by the CCJ (Art 30 RTC).
Barbados contended that immigration and customs procedures are “activities forming part of a system of national security or for the establishment or maintenance of public order” and thus, in accordance with Article 30(3) RTC, are classified as “activities involving the exercise of governmental authority”. The CCJ said that this argument was misconceived. It said that if Article 30(2) were to be interpreted in the manner concluded by Barbados, then very little would be left of the rights granted under the four freedoms referred to in Chapter Three of the RTC.
The CCJ found that the purpose of Article 30 is to enable Member States to reserve certain public service positions strictly for its own nationals, the justification being that these positions presume “a special relationship of allegiance to the State” and “reciprocity of rights and duties which form the foundation of the bond of nationality”. Article 30(2) could then be applied to limit the right to seek employment in another Member State’s armed forces, the police force, immigration, customs, the judiciary, the CCJ conceded but was “not intended to limit the right to free movement as such nor can it be invoked to prevent the Court from subjecting to judicial scrutiny the actions of functionaries in those areas in the exercise of their duties in the context of the RTC.”
Not absolute
Barbados’ case then moved on to the position that if the 2007 Conference Decision gave Myrie a right of entry, such right is not absolute or unfettered and that Barbados was justified in refusing her entry. The CCJ then proceeded to examine the substantive and procedural content of the right of entry into a Member State. That right, it said, is part of the broader concept of free movement of Community nationals within the Community. It noted that the right has to a great extent already been enshrined and fleshed out in the RTC itself. It said that a clear example of this could be seen in Article 46 of the RTC which deals with the right of movement of five specific categories of skilled Community nationals. To this end Member States undertook to “provide for movement of Community nationals into and within (their) jurisdictions without harassment or the imposition of impediments” (Article 46(2)(b) RTC), to the extent even that “the requirement for passports for Community nationals” should be eliminated (Article 46(2)(b)(i) RTC). From Article 46(3) RTC, the CCJ said it could be deduced that the concept of free movement entails the right of Community nationals to have unrestricted access to, and movement within, the jurisdictions of the Member States “subject to such conditions as the public interest may require.” Further, the fourth paragraph of Article 46 RTC charges the Conference, inter alia, with the duty “to enlarge, as appropriate, the categories of persons entitled to move and work freely in the Community.”
In addition, the CCJ said that both the rights of establishment and of the provision of services presume the right of movement of community nationals and one of the service sectors capable of triggering these rights is tourism as tourists can reasonably be considered recipients of services.
The CCJ then argued that “it is clear that the 2007 Conference Decision is just another step in furthering a fundamental Community goal of free movement that is not only envisioned by the RTC but in some instances already achieved by it. The Decision takes this goal beyond the defined group of Community nationals who are seeking economic enhancement in one way or the other and broadens it to Community nationals in general. It clarifies one aspect of the goal in that it gives every Community national the right to enter any Member State and stay there for up to six months. The right conferred is expressed as an entitlement to `an automatic stay’ or `a definite entry’ of six months upon arrival”.
Given the historic background of this aspect of free movement, the CCJ said that Community nationals are entitled to assume that the purpose of the 2007 Conference Decision is indeed “to enhance their sense that they belong to, and can move in, the Caribbean Community” and in light of the context of the relevant provisions of the RTC, “the full extent of the right is that both entry and stay of a Community national in another Member State must not only be “definite” but also “hassle free” or “without harassment or the imposition of impediments”. These are essential elements of the right, it said.
The CCJ acknowledged that the 2007 Conference Decision emphatically stated that the right of entry and definite stay of six months is “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 said that in its submissions Barbados appears to regard these two qualifications as conditions precedent to the right of entry and six- month stay. It said that the Barbadian approach was incorrect. The CCJ said that wording of the Decision where it speaks about “automatic stay” or “definite entry” upon arrival, suggests that the right does not depend on discretionary evaluations of immigration officers or other authorities at the port of entry.
“The fact that entry and stay are described as “definite” and “automatic” precludes any dependency of the right itself on the exercise of domestic discretion”, the CCJ declared.
The CCJ said that rights accorded by or under the RTC may justifiably be tailored by a Member State if that State can reasonably invoke one of the exceptions mentioned in Articles 225 and 226 of the RTC. Similarly, the rights of a Member State to refuse undesirable persons and to prevent persons from becoming a charge on public funds must equally be viewed as exceptions to, and restrictions on, the right of Community nationals from other Member States to enter into and move around the receiving State “without harassment or the imposition of impediments.”
The CCJ asserted that being an exception to a fundamental principle of free movement, the scope of the refusal and, in particular, the grounds must be interpreted narrowly in order to avoid an “unjustified watering down of the importance of the right it seeks to limit”. Secondly, as it is an exception to this fundamental principle, the burden of proof must rest on the Member State that seeks to utilise either ground for refusing
entry.
The CCJ then assessed the applicability of the two conditions: being an undesirable person and becoming a charge on public funds.
It said that undesirability is meant to pertain to such matters as the protection of public morals, the maintenance of public order and safety and the protection of life and health. It said that this concept of “undesirable persons,” cannot be determined unilaterally by each Member State without being subject to control by the major Community Organs and ultimately by the CCJ as the Guardian of the RTC.
“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 from the above 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“, the CCJ ruled.
The CCJ held that no restrictions in the interests of public morals, national security and safety, and national health should be placed on the right of free entry of a national of any Member State unless that national poses a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.
Not of good repute
The CCJ said that the evidence in this case revealed that under Barbados domestic law, the practice has been that Community nationals are often denied entry into Barbados where they intend to stay with a person who is “not of good repute” or where the Community national is deemed not to be “a bona fide visitor.”
“Neither of these grounds by itself appears to meet the relevant test … In this case, however, it was not alleged that Ms Myrie was deported for either of these reasons. The reason offered by Barbados for refusing her entry was that she had not been truthful with the officials”, the court said.
Acknowledging that a visitor is under an obligation to be truthful to immigration officials, the court said it had a difficulty with the fairness of the procedure by which it was concluded by Barbados that Ms Myrie was lying. On this issue, the CCJ said that Barbados had the burden of proof, yet it decided not to call several concerned persons as witnesses. In all the circumstances, the Court said it was of the view that Barbados had not established Myrie’s alleged untruthfulness.
“Be that as it may, the applicable test is whether Ms Myrie was an undesirable person, i.e., whether she presented on arrival a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. In the Court’s view, there were no indications, let alone evidence, that she presented or was capable of presenting such a threat”, the CCJ said.
On the question of becoming a charge on public funds, the CCJ said it was not asserted by Barbados that Myrie lacked sufficient funds to support herself for the relatively short period she wished to stay.
The court further added that it would not be 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.
The CCJ argued that in light of the obligations undertaken by Barbados under the RTC the appropriateness of the continued application to community nationals of laws such as section 23(1) of the Barbados Immigration Act and section 13(2) of the Administrative Justice Act may be a matter of legitimate comment.
“The Court expects that so far as these provisions apply to Community nationals, the Barbados domestic courts will, where possible, apply them liberally so as to harmonise them with Community law”, the CCJ said.
The CCJ then asserted its jurisdiction in these matters.
“In this context it is useful to note that in the area of freedom of movement within CARICOM, domestic courts or tribunals will, of course, be guided by this Court as it sets out the relevant Community law. If, in the course of a domestic proceeding, new issues arise that have not been addressed by this Court, domestic courts and tribunals are required by Article 214 RTC to refer these new issues to this Court for determination before delivering judgment”, it advanced.
It restated that “Given the above characteristics of the right of entry it would only be in exceptional situations that entry into Member States will be denied to Community nationals. In those exceptional cases it would be reasonable, given also the sense of belonging that the 2007 Conference Decision seeks to instill in these nationals, to allow refused visitors the opportunity to consult an attorney or a consular official of their country, if available, or in any event to contact a family member.”
Jamaican
On Myrie’s claim that she had been discriminated against because she was Jamaican, the CCJ said “The statistical and other documentary evidence presented by Jamaica and Ms Myrie are … incapable of raising a prima facie case that Ms Myrie was the victim of discrimination as this material did not have enough data to support the proposition that refusals of Jamaicans were mainly based on nationality. Although relatively more Jamaicans were refused entry into Barbados than nationals of other States, this was still a relatively small percentage, some 2%. Clearly, an overwhelming majority of Jamaicans were permitted freely to enter.”
The court ordered Barbados to pay Myrie the amount of Bds$2240.00 (being the equivalent of JA$112,000.00) for pecuniary damages and the sum of Bds$75,000.00 for non-pecuniary damages.
It also ordered that Barbados pay the costs of the claimant to be taxed if not agreed.
