Derek Achong

The Caribbean Court of Jus­tice (CCJ) has ad­vised Cari­com mem­bers to amend or in­ter­pret their im­mi­gra­tion laws to prop­er­ly fa­cil­i­tate the free move­ment of re­gion­al na­tion­als through in­di­vid­ual mem­ber states.The CCJ gave the ad­vice yes­ter­day while de­liv­er­ing a judg­ment in favour of Ja­maican Shanique Myrie who claimed she was mis­treat­ed and de­nied her au­to­mat­ic en­try rights by Bar­ba­dos im­mi­gra­tion of­fi­cials in 2011.

Bar­ba­dos was or­dered to pay Myrie BDS$77,240 (US$38,820) in com­pen­sa­tion, in ad­di­tion to the le­gal, trav­el and oth­er ex­pens­es she in­curred in pur­su­ing the law­suit. Myrie, her at­tor­ney Michelle Brown and the le­gal team rep­re­sent­ing Bar­ba­dos were not present at the CCJ's Hen­ry Street, Port-of-Spain, head­quar­ters for the judg­ment. In­stead they viewed the pro­ceed­ings from court­rooms in Bar­ba­dos and Ja­maica, via video con­fer­enc­ing.

Read­ing the ex­ec­u­tive sum­ma­ry of the judg­ment, CCJ pres­i­dent Sir Den­nis By­ron said: "The court in­di­cat­ed that it ex­pects Bar­ba­dos to in­ter­pret and ap­ply its do­mes­tic laws lib­er­al­ly so as to har­monise them with com­mu­ni­ty law or, if this is not pos­si­ble, to al­ter them."

Judges Rol­ston Nel­son, Adri­an Saun­ders, D�sir�e Bernard, Ja­cob Wit, David Hay­ton and Win­ston An­der­son al­so sat on the pan­el.

As part of the 60-page rul­ing in the land­mark case, the sev­en judges ruled that through the ac­tion of its of­fi­cials, Bar­ba­dos con­tra­vened Ar­ti­cle 45 of the Re­vised Treaty of Ch­aguara­mas.They al­so de­clared that Bar­ba­dos breached Myrie's rights un­der a de­ci­sion aris­ing out of a Cari­com Heads of Gov­ern­ment con­fer­ence in 2007, in which re­gion­al lead­ers agreed that Cari­com na­tion­als should be au­to­mat­i­cal­ly grant­ed six months' en­try when ar­riv­ing in oth­er mem­ber states.

In de­fence of the claim, Bar­ba­dos claimed the de­ci­sion was not unan­i­mous, be­cause of a reser­va­tion raised by one mem­ber state, and said it could on­ly be bound by the de­ci­sion if it had en­act­ed it in­to its do­mes­tic laws.

By­ron said the pan­el re­ject­ed this ar­gu­ment, say­ing there was no ev­i­dence that the de­ci­sion was in­valid, and stat­ed: "If bind­ing re­gion­al de­ci­sions can be in­val­i­dat­ed at the com­mu­ni­ty lev­el by the fail­ure of a par­tic­u­lar state to in­cor­po­rate those de­ci­sions lo­cal­ly, the ef­fi­ca­cy of the en­tire Cari­com regime would be jeop­ar­dised."

By­ron said en­try could be de­nied in cir­cum­stances where the na­tion­al of an­oth­er mem­ber state is "deemed un­de­sir­able" or is like­ly to be a charge on pub­lic funds."The court held that in or­der for a mem­ber state to lim­it the right of en­try of a na­tion­al of an­oth­er mem­ber state in the in­ter­ests of pub­lic morals, na­tion­al se­cu­ri­ty and safe­ty, and na­tion­al health, the vis­it­ing na­tion­al must present a gen­uine, present and suf­fi­cient­ly se­ri­ous threat to af­fect­ing one of the fun­da­men­tal in­ter­ests of so­ci­ety," By­ron said.

He said the court was of the opin­ion that in cir­cum­stances where a na­tion­al was de­nied en­try on a le­git­i­mate ground, the mem­ber state is re­quired to al­low the in­di­vid­ual the op­por­tu­ni­ty to con­tact an at­tor­ney, his coun­try's con­sular of­fice or a fam­i­ly mem­ber.In their judg­ment, the CCJ said af­ter re­view­ing all the ev­i­dence in the case, the court was of the be­lief that Myrie's case had been proven.

As a sec­ondary is­sue, Myrie al­leged that she was dis­crim­i­nat­ed against be­cause of her na­tion­al­i­ty, but the court re­ject­ed this ar­gu­ment be­cause she could not prove that Bar­ba­dos na­tion­als were treat­ed more favourably than their Cari­com coun­ter­parts.

THE CASE:

In her law­suit, Myrie claimed when she trav­elled to Bar­ba­dos on March 14, 2011, her pass­port was stamped and she was grant­ed en­try for a month.She said two hours lat­er, she was sub­ject­ed to a full cav­i­ty search by a fe­male im­mi­gra­tion of­fi­cer and was ver­bal­ly abused.She was kept in an un­san­i­tary hold­ing cell at the Grant­ley Adams In­ter­na­tion­al Air­port, be­fore she was even­tu­al­ly de­port­ed to Ja­maica the day af­ter.

She was sub­ject­ed to cru­el, in­hu­mane, in­sult­ing or de­mean­ing treat­ment and pro­duced med­ical ev­i­dence which showed she was still suf­fer­ing from post-trau­mat­ic stresss from her overnight de­ten­tion.Bar­ba­dos de­nied the al­le­ga­tions. Ja­maica was list­ed as an in­ter­ven­ing par­ty in the case.

Ja­maican High Com­mis­sion­er re­sponds

Ja­maica High Com­mis­sion­er Sharon Saun­ders, com­ment­ing on the judg­ment said, it was a vic­to­ry for Myrie and Ja­maica.In an in­ter­view im­me­di­ate­ly af­ter the judg­ment was hand­ed down, Saun­ders said: "I am very hap­py. In fact, I am feel­ing a bit emo­tion­al, be­cause it has been a long jour­ney."Saun­ders de­scribed it as a land­mark judg­ment and said it set the prece­dent for the free move­ment of Cari­com cit­i­zens in the re­gion.

"This sets a stan­dard that needs to be ob­served by all mem­ber states. It will mean that gov­ern­ments acrosss the re­gion will have to raise the bar," Saun­ders said.