Derek Achong

A Ja­maican gay rights ac­tivist has failed in his nov­el law­suit chal­leng­ing T&T's and Be­lize's ho­mo­pho­bic im­mi­gra­tion laws.

De­liv­er­ing a judg­ment at the Caribbean Court of Jus­tice (CCJ)'s head­quar­ters at Hen­ry Street, Port-of-Spain, yes­ter­day, CCJ Pres­i­dent Den­nis By­ron and four of his col­leagues ruled that while at­tor­ney-at-law Mau­rice Tom­lin­son had raised a valid is­sue over the dis­crim­i­na­to­ry na­ture of both coun­tries' laws, his case failed as he could not prove that he had been prej­u­diced by them.

In his law­suit filed in 2014, Tom­lin­son had ad­mit­ted to hav­ing vis­it­ed both coun­tries on sev­er­al oc­ca­sions in the past with­out be­ing de­nied en­try but said that he has re­fused in­vi­ta­tions from Les­bian, Gay, Bi­sex­u­al, Trans­gen­der and In­ter­sex (LGBTI) or­gan­i­sa­tions to re­turn af­ter he learnt of the laws. Due to his firm stance on the is­sue Tom­lin­son, who lives in Cana­da, re­fused to come to Trinidad to at­tend hear­ings of the case and tes­ti­fied via video broad­cast­ing.

"He fur­ther ar­gues that the con­tin­ued pres­ence on the statute books of leg­is­la­tion de­clar­ing him a pro­hib­it­ed im­mi­grant is an as­sault on his dig­ni­ty as a hu­man be­ing as it sub­jects him to a deroga­to­ry cat­e­gori­sa­tion and im­pos­es a stig­ma on him be­cause of his sex­u­al ori­en­ta­tion," the judges stat­ed as they said that he was not al­lowed to as­sume that his rights may be in­fringed.

Tom­lin­son had con­tend­ed that his right to free­dom of move­ment with­in Cari­com mem­ber States, as guar­an­teed by Cari­com treaties, was in­fringed as the laws barred him en­try as an open­ly gay man.

Cen­tral to the court's de­lib­er­a­tions in the case were sub­mis­sions by at­tor­neys for both coun­tries who stat­ed that the laws were not en­forced for Cari­com na­tion­als as nei­ther coun­try has an of­fi­cial pol­i­cy for its im­mi­gra­tion of­fi­cers to en­quire about the sex­u­al ori­en­ta­tion of vis­i­tors.

"Both States sub­mit that what­ev­er their im­mi­gra­tion leg­is­la­tion may pro­vide or be in­ter­pret­ed to mean, in prac­tice they do not pro­hib­it and nev­er have pro­hib­it­ed Cari­com na­tion­als from en­ter­ing their coun­try on the ba­sis of their sex­u­al ori­en­ta­tion," the judg­ment said.

"It is note­wor­thy that there is no ev­i­dence nor has it been sug­gest­ed that T&T has as of­fi­cial pol­i­cy a ho­mo­pho­bic ap­proach to for­eign­ers or any­one else, for that mat­ter," the judges said as they not­ed that both T&T's Ex­tra­di­tion (Com­mon­wealth and For­eign Ter­ri­to­ries) Act and Da­ta Pro­tec­tion Act af­ford­ed pro­tec­tion to per­sons based on their sex­u­al ori­en­ta­tion.

Even though Tom­lin­son lost his case, the court held that he should not have to pay T&T's and Be­lize's le­gal costs as "the case raised nov­el ques­tions and has con­tributed to the clar­i­fi­ca­tion and de­vel­op­ment of com­mu­ni­ty law."

Tom­lin­son was rep­re­sent­ed by Dou­glas Mendes, SC, West­min James and Im­ran Ali. Be­lize's So­lic­i­tor Gen­er­al Ani­ka Jack­son led that coun­try's le­gal team. The T&T Gov­ern­ment was rep­re­sent­ed by Seenath Jairam, SC, Wayne Sturge and Ger­ald Ramdeen.