At the height of the glob­al pan­dem­ic, ap­prox­i­mate­ly 91 per cent of coun­tries had bor­der clo­sures, ac­cord­ing to the US-based, Pew Re­search Cen­tre. En­ter­ing 2021, T&T re­mains one of three Caribbean ter­ri­to­ries whose bor­ders re­main closed–the oth­ers be­ing Mon­ster­att and the Cay­man Is­lands.

Closed since March 23, the Gov­ern­ment main­tains that the bor­der clo­sure is an im­por­tant tool in con­trol­ling the spread of COVID-19, in turn, lim­it­ing the chances of the health­care sys­tem be­com­ing over­whelmed.

While there have been calls by some for the bor­ders to be re­opened, vi­rol­o­gist Dr Cristo­pher Oura, in an in­ter­view with Guardian Me­dia last Tues­day, sup­port­ed the State’s de­ci­sion to keep it closed for now be­cause re­open­ing "would put at risk, cit­i­zens in T&T, be­cause a per­cent­age, maybe a sig­nif­i­cant per­cent­age of the peo­ple, would bring the virus back with them."

With the bor­ders shut, T&T's ex­emp­tion pol­i­cy, the on­ly av­enue for na­tion­als to en­ter the coun­try, has been steeped in con­tro­ver­sy, with crit­i­cism from some quar­ters about its func­tion­al­i­ty.

As of De­cem­ber 23, more than 7,000 peo­ple were still await­ing ex­emp­tions to en­ter T&T, and while a sig­nif­i­cant num­ber of those ap­pli­ca­tions come from na­tion­als re­sid­ing out­side of the coun­try, some are from T&T res­i­dents stuck abroad.

In light of in­creased crit­i­cism and claims of pref­er­en­tial treat­ment, Na­tion­al Se­cu­ri­ty Min­is­ter Stu­art Young an­nounced that changes to the process will be made in the com­ing weeks, but Prime Min­is­ter Dr Kei­th Row­ley warned that every­one will not be pleased with what’s to come.

For dif­fer­ing rea­sons, the gov­ern­ments of oth­er Caribbean is­lands have opt­ed to open its bor­ders, im­ple­ment­ing sys­tems much dif­fer­ent to T&T’s.

With their bor­ders opened, their cit­i­zens, res­i­dents and non-res­i­dents based abroad are al­lowed back in, once they meet the stan­dard re­quire­ments es­tab­lished.

For ex­am­ple, Bar­ba­dos, a pop­u­lar des­ti­na­tion for T&T na­tion­als seek­ing to come home, has no en­try re­stric­tions but re­quires vis­i­tors from high-risk coun­tries to present a neg­a­tive PCR COVID-19 test no old­er than 72-hours old up­on ar­rival. They are then re­quired to quar­an­tine un­til they pro­duce a sec­ond neg­a­tive test for a test tak­en five days af­ter ar­rival.

Vis­i­tors from medi­um-risk coun­tries must al­so ar­rive with neg­a­tive tests, and are sub­ject to dai­ly health mon­i­tor­ing for sev­en days.

Peo­ple from low-risk coun­tries are ex­pect­ed to present a neg­a­tive test no old­er than five days. If they don’t ar­rive with one, they are re­quired to take one at the air­port.

Fol­low­ing an in­crease in cas­es, how­ev­er, on Jan­u­ary 2, Bar­ba­dos in­tro­duced a cur­few that will re­main in place un­til at least Jan­u­ary 9. Among the changes–ac­tiv­i­ties be­tween 9 pm to 5 am will be banned, while com­mer­cial cruis­es, ban­quettes, fetes and limes are pro­hib­it­ed.

There were no changes to in­ter­na­tion­al trav­el re­quire­ments, how­ev­er.

Ja­maica, mean­while, on­ly re­quires a neg­a­tive COVID-19 PCR or anti­gen test from cit­i­zens 12 years of age and old­er from the Unit­ed States, Brazil, Do­mini­can Re­pub­lic, Mex­i­co, and Pana­ma.

There are no re­quire­ments for na­tion­als en­ter­ing from oth­er coun­tries.

Com­par­ing the three Caribbean coun­tries, ap­prox­i­mate­ly 0.44 per cent of Ja­maica's pop­u­la­tion was con­firmed to have con­tract­ed COVID-19 so far, Bar­ba­dos–0.14 per cent, and Trinidad–0.51 per cent.

Lawyers weigh in on ex­emp­tion chal­lenges

But with T&T na­tion­als still re­quir­ing an ex­emp­tion to re­turn home, an in­creas­ing num­ber of strand­ed na­tion­als are threat­en­ing le­gal ac­tion against the State.

Sev­er­al strand­ed na­tion­als told Guardian Me­dia that they are do­ing so be­cause they feel as though they have no oth­er op­tion giv­en lengthy de­lays, while some na­tion­als who were grant­ed ex­emp­tions be­lieved that lawyer let­ters aid­ed their at­tempts to come home.

Ac­cord­ing to one Trinidad-based at­tor­ney rep­re­sent­ing sev­er­al strand­ed na­tion­als, he is prepar­ing to file pre-ac­tion pro­to­col let­ters, warn­ing that if his clients are not grant­ed en­try, they will be seek­ing ju­di­cial re­view of the ex­emp­tion process and will chal­lenge the con­sti­tu­tion­al­i­ty of the bor­der clo­sure.

Sev­er­al oth­er at­tor­neys have is­sued pre-ac­tion pro­to­col let­ters on be­half of their clients.

The at­tor­neys, rep­re­sent­ing strand­ed na­tion­als, claim that the con­sti­tu­tion­al rights of their clients are be­ing de­nied, point­ing to two sec­tions in Chap­ter One of the Con­sti­tu­tion.

The first right be­ing in­fringed, they claim, is Chap­ter One Sec­tion Four (G) of the Con­sti­tu­tion, which sum­mar­i­ly states that all na­tion­als with­out dis­crim­i­na­tion by rea­son of race, ori­gin, colour, re­li­gion or sex, are grant­ed the fun­da­men­tal hu­man right of free­dom of move­ment.

Un­der this sec­tion, they claim, the Gov­ern­ment’s de­lay in grant­i­ng them en­try in­to their own coun­try is un­con­sti­tu­tion­al.

So, do strand­ed na­tion­als have a sol­id case against the State based on the right to free­dom of move­ment?

No, ac­cord­ing to at­tor­ney Mar­tin George.

"I see ab­solute­ly no ba­sis what­so­ev­er for a con­sti­tu­tion­al chal­lenge on those grounds. Be­cause free­dom of move­ment has to per­tain to your free­dom of move­ment with­in the bor­ders of T&T," he said.

Ac­knowl­edg­ing that the law is flu­id and dy­nam­ic, he said while peo­ple are with­in their right to probe and test laws, he sees this le­gal claim as far-fetched.

While the well-be­ing of some cit­i­zens is af­fect­ed by the bor­der clo­sure, the courts will like­ly rule that it is in the best in­ter­est of the ma­jor­i­ty of cit­i­zens, giv­en that there is an on­go­ing pan­dem­ic, he said.

"I sym­pa­thise and ac­knowl­edge that there is a hu­man el­e­ment to the sce­nario be­cause you can­not dis­cred­it that some peo­ple are suf­fer­ing and will not be able to re­turn to the coun­try, but you al­so have to bal­ance that with the ques­tion of the re­spon­si­bil­i­ty of the Cab­i­net," George said

Se­nior Coun­sel Is­rael Khan agreed with George that free­dom of move­ment was not an ab­solute right.

"The Gov­ern­ment would say there’s a pan­dem­ic and we are re­strict­ing your rights. It’s just like you have a right to free­dom of ex­pres­sion, but you can’t go on the road and cuss. That would be a use of ob­scene lan­guage," Khan said.

And un­der sec­tion 75 of the Con­sti­tu­tion, he said, the Cab­i­net is giv­en the over­all di­rec­tion of the gov­er­nance of the coun­try.

For a court to over­rule the Gov­ern­ment’s de­ci­sion to close the bor­ders, he said, it would have to be de­ter­mined that the ex­er­cise was un­rea­son­able, some­thing the at­tor­ney sees no re­al­is­tic chance of giv­en the threat of COVID-19.

Attor­neys rep­re­sent­ing strand­ed na­tion­als claim that their rights were be­ing in­fringed in Chap­ter 1 Sec­tion 4 (D) of the Con­sti­tu­tion, which sum­mar­i­ly states that all na­tion­als with­out dis­crim­i­na­tion by rea­son of race, ori­gin, colour, re­li­gion or sex are grant­ed equal­i­ty of treat­ment from any pub­lic au­thor­i­ty in the ex­er­cise of any func­tions.

With the re­cent grant­i­ng of an ex­emp­tion to the Prime Min­is­ter’s daugh­ter af­ter she ap­plied on No­vem­ber 4, some strand­ed na­tion­als, via their at­tor­neys, claim that hav­ing ap­plied be­fore No­vem­ber 4 and not be­ing grant­ed en­try them­selves, the ex­emp­tion process is un­fair and un­con­sti­tu­tion­al.

Both Khan and George see lit­tle chance of le­gal suc­cess for strand­ed na­tion­als through this av­enue.

Khan said giv­en the on­go­ing pan­dem­ic, the law gives the Gov­ern­ment the right to do what they are do­ing, with­out even hav­ing to de­clare a state of emer­gency. And if the Gov­ern­ment says the ex­emp­tion process is not on a first-come, first-served ba­sis, then every ap­pli­ca­tion will be treat­ed on its mer­it, as de­ter­mined by the Na­tion­al Se­cu­ri­ty Min­istry.

"They can file their case and maybe men­tion that, but they will get nowhere with that," he said as­sertive­ly.

"These are high pub­lic of­fi­cials and the min­istry is de­ter­min­ing whether they de­serve to come in un­less you can show mala fide (that the Gov­ern­ment act­ed in bad faith) and dis­crim­i­na­tion, you won’t be able to get through."

Khan said even if there was a chance that a na­tion­al, via their at­tor­ney, demon­strates to the court that pref­er­en­tial treat­ment was giv­en to the rel­a­tives of a mem­ber of the Cab­i­net, it still doesn’t mean that the strand­ed na­tion­al will al­so re­ceive pref­er­en­tial treat­ment.

They will still be sub­ject­ed to the same ex­emp­tion process, Khan be­lieves.

"The Gov­ern­ment is say­ing it’s not a first-come, first-served ba­sis. It is not in­con­sis­tent."

While ac­knowl­edg­ing the ex­emp­tion process ought to be clear, George be­lieves each ap­pli­cant will have dif­fer­ent cir­cum­stances, and be­cause of this, any le­gal chal­lenge at­tempt­ing to show dis­crim­i­na­tion in the process will like­ly be an ex­er­cise in fu­til­i­ty.

"That is not prac­ti­cal or pos­si­ble, nor fea­si­ble...to say that, you know, I am pin­ning you down, and you must spec­i­fy what hap­pens in each par­tic­u­lar in­stance, I don’t think any court will ever hold any gov­ern­ment to that type of stan­dard," George said.

'A de­clared, out­lined pol­i­cy must be es­tab­lished'

An­oth­er well-known, se­nior at­tor­ney, speak­ing off-the-record, has a slight­ly dif­fer­ent view from George and Khan.

He be­lieves while the clo­sure of the bor­ders may be con­sti­tu­tion­al, a de­clared, out­lined pol­i­cy as to how cit­i­zens get in­to the coun­try must be es­tab­lished.

"Now, if what Stu­art Young put in the pa­pers on Wednes­day was re­al­ly the pol­i­cy, it would be hard to fault that, where I think they may be run­ning in­to tremen­dous trou­ble is that it is clear­ly not first-come, first-served. If it ever was first-come, first-served, it is not,” the at­tor­ney said.

He sug­gest­ed that the Gov­ern­ment may be run­ning the risk of fac­ing a le­git­i­mate le­gal chal­lenge fol­low­ing two high-pro­file ex­emp­tions–the ones giv­en to the PM’s daugh­ter and the AG’s son.

These ex­emp­tions, he claimed, make it clear that the Gov­ern­ment made a loop­hole in the process.

"They’ve blast­ed holes in two very dif­fer­ent ways. You’ve al­lowed some­one who isn’t nor­mal­ly res­i­dent to see their fam­i­ly, and in the oth­er case, you’ve al­lowed some­one else–we don’t know the rea­son–to come and go as well. Then, of course, the sec­ond prob­lem they have is that there are loads of peo­ple who ap­plied to come back be­fore No­vem­ber 4 (the date the PM’s daugh­ter ap­plied)," he said.

On De­cem­ber 11, 2020, be­fore the ex­emp­tions giv­en to rel­a­tives of the Cab­i­net, Young de­fend­ed a le­gal chal­lenge from busi­ness­woman Sacha Singh in the High Court.

Singh ar­gued that the ex­emp­tion process was un­fair and bi­ased, how­ev­er the High Court ruled the al­le­ga­tions had no re­al­is­tic chance of suc­cess.

Pre­vi­ous le­gal chal­lenges were struck down in the courts as well.