CCJ dismisses case filed by gay J'can

CCJ dismisses case filed by gay J'can

Friday, June 10, 2016

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PORT Of SPAIN, Trinidad (CMC) — The Caribbean Court of Justice (CCJ) has dismissed claims made by a homosexual and noted LBGTI rights activist against Belize and Trinidad and Tobago as it pertains to his entry into these two Caribbean Community (CARICOM) country.

Attorney Maurice Tomlinson, a Jamaican national, alleged that he has been prejudiced in the enjoyment of his right as a CARICOM national to enter Belize and Trinidad and Tobago without hassle, due to the their respective Immigration Acts, which purportedly include homosexuals as a class of persons prohibited from entering these territories.
But while he conceded that he has never actually been refused entry on any occasion by either country, Tomlinson nonetheless argued that the mere existence of these statutory provisions prevented him from entering both countries since, in so doing, he would be breaking their domestic laws.

He told the CCJ that his rights as a CARICOM national would be prejudiced in contravention of his right to free movement under Article 45 of the Revised Treaty of Chaguaramas (RTC) and the 2007 Decision of the Conference of Heads of Government of CARICOM, as well as his right to not be discriminated against on the basis of nationality only.

Additionally, Tomlinson argued that being a graduate of the University of the West Indies (UWI), he is a skilled CARICOM national and that his Article 46 of the CARICOM treaty would be prejudiced.

Tomlinson sought several declaratory orders from the Court to the effect that he has a right to enter these States and that the provisions of the respective Immigration Acts prohibit his lawful entry thereby violating his rights to freedom of movement and not to be discriminated on the basis of nationality only. Additionally, he sought an order that the two countries amend their Immigration Acts so as to remove homosexuals from any class of prohibited immigrants.

But Belize and Trinidad and Tobago maintain that Tomlinson is entitled to enter their respective territories without hassle and to remain there for up to six months; and also that, as a homosexual, he does not constitute a “genuine, present and sufficiently serious threat affecting one of the fundamental interests of society” so that he is not an “undesirable person” as envisioned under the 2007 Conference Decision. Further, the two countries argued that Tomlinson has entered both territories in the past without hindrance and that the existence of the legislation has not caused him to suffer prejudice of which he complains.

In its ruling, the CCJ noted that the 2007 Conference Decision created a binding obligation on the member states to allow all CARICOM nationals hassle free entry and stay of six months upon arrival into their respective territories.

But it noted that there were two exceptions to that decision with the CARICOM country denying entry to “undesirable persons” and their right to prevent persons from becoming a charge on public funds.

The Court agreed with the States that homosexuals, as such, cannot be categorised as ‘undesirable persons’ and concluded that homosexual CARICOM nationals have a right to freedom of movement on the same terms as any other CARICOM national.

It said that the primary issue to be determined was whether the States’ obligation has been breached by the mere existence of the statutory provisions being challenged by Tomlinson.

But the CCJ agreed with Belize’s interpretation of section 5(1)(e) of its Immigration Act, noting that the wording and the context of this provision indicate that homosexuals are prohibited from entering the country only where they are seeking financial gain either by offering sexual services themselves or by profiting from those performed by others.

It said further that the section had to be considered in the context of Belize’s CARICOM treaty responsibilities.

“Section 64(1) of Belize’s Interpretation Act, to which section 3(2) of the Caribbean Community Act, 2004 of Belize specifically refers, prescribes that when ascertaining the meaning of any provision of an Act consideration should be given to “any provision of the Caribbean Community Treaty and any Community instrument issued under the Treaty, where relevant.”

“Critically, the interpretation advanced by Belize is bolstered by the practice of the administrative and executive arms of the State of Belize which apply the legislation in a manner that is consistent with this interpretation.”

It said in the case of Trinidad and Tobago, while the wording of section 8(1)(e) of its Immigration Act differs from the Belizean statute as it regards “homosexuals”  such persons are seen as a category of prohibited persons.

“This was also the view of Trinidad and Tobago. Consequently, Mr Tomlinson would appear to be prohibited from entry by the above mentioned provision, although the Court envisioned the possibility of a more liberal interpretation of the law.

“In this regard, mention was made of the Preamble of the 1976 Constitution of Trinidad and Tobago, as well as section 4 which recognizes the right of the individual to equality before the law and protection of the law, and the right of the individual to respect for his private and family life.

“Reference was also made to relevant state practice, particularly the 2004 amendment to the Extradition (Commonwealth and Foreign Territories) Act, 1985, which introduced a prohibition to extradite persons who might be discriminated against on the basis of gender and sexual orientation; as well as the Data Protection Act 2011, which aims at ensuring that protection is afforded to an individual’s right to privacy and the right to maintain “sensitive personal information” as private and personal, including information on a person’s sexual orientation or sexual life.”

The CCJ ruled that be that as it may, Trinidad and Tobago posits that, despite the formal prohibition in section 8 of the Immigration Act, Tomlinson has never been and could never have been prejudiced in the enjoyment of his right to enter the State since its Immigration Department does not apply the prohibition to CARICOM nationals who are homosexual. This administrative practice appears to be the expression of an official policy.

The CCJ said that it accepted the existence of this policy, pointing out that Article 46 of the RTC accords certain categories of Community nationals the right to seek employment in CARICOM Member States, including university graduates.

“his right has been incorporated into the laws of Trinidad and Tobago by virtue of section 3 of the Immigration (Caribbean Community Skilled Nationals) Act 1996, which requires an immigration officer to permit entry into Trinidad and Tobago of skilled CARICOM nationals who present a skills certificate, “notwithstanding any other written law”.”

“Consequently, if Mr Tomlinson enjoys a legal right of entry under the 1996 Act despite being a homosexual then it seems awkward that he could legally be denied entry under section 8 (1) (e) of the Immigration Act because he is a homosexual,” the CCJ noted.

It said that Tomlinson expressed as his main concern that, especially in the absence of a published written document or instruction detailing the stated practice of the Immigration Department of Trinidad and Tobago, there is genuine uncertainty about the legality of this practice as immigration officers are under a duty to apply the law and run the risk of prosecution if they deliberately refuse to so do.

But the CCJ said that it rejected this view and it considered that the practice of admitting homosexuals of other CARICOM States is not a matter of discretion but is legally required by Article 9 RTC as this an appropriate measure within the meaning of that provision.

“Given the transformation of this Treaty provision into the domestic law of Trinidad and Tobago (through the Caribbean Community Act, 2005), this legal requirement equally exists within the domestic legal order of that State, notwithstanding any contradictory provision in the earlier Immigration Act.”

The Trinidad-based CCJ said that despite the reasoning, it is cautioning that member states should strive to ensure that national laws, subsidiary legislation and administrative practices are consistent with, and transparent in their support of, the right of free movement of all CARICOM nationals.

It noted that this is a necessary component of the rule of law which is the basic notion underlying the Caribbean Community.

The Court also emphasized “that a permanent or indefinite discord between administrative practices and the apparent meaning of legislation is undesirable as the rule of law requires clarity and certainty especially for nationals of other member states who are to be guided by such legislation and practice”.

The CCJ in dismissing Tomlinson’s claims against Belize and Trinidad and Tobago also refused the requested remedies.

It said as to costs, noting the importance of having novel issues of Community law ventilated before the CCJ, ordered that each party pay its own costs.

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