An immigration policy, under which deportation orders were not issued to the children of migrants who are found to have entered this country illegally with their parents, may cost the State millions of dollars in compensation.
Delivering a judgement yesterday, five Lord Lords of the United Kingdom-based Privy Council upheld an appeal of a Venezuelan woman and her 14-year-old son, to whom the policy was applied.
The woman and her son were part of a group of migrant adults and children, who were detained when they returned to Trinidad three days after being escorted back to Venezuela in late 2020.
In a press release issued after the Privy Council delivered its judgement in the appeal, attorney Gerald Ramdeen, who represented the group, claimed the outcome of the case would affect all migrant children who were subject to the policy.
“Each child who was subject to this policy now has a legitimate claim against the State for the actions that were suffered by them. Of this group alone that entered the country with (name withheld), each of those 13 minors will now commence proceedings against the State for the unlawfulness that they suffered under the hands of this administration,” Ramdeen said.
Ramdeen also suggested that migrant children who were subject to the policy but who have already been deported alongside their parents, may also have a claim for compensation.
According to the evidence in the case, the family was among a group of migrants who were detained shortly after arriving in Chatham on November 17, 2020.
The migrants, the youngest of whom was four months old, were then held in custody at several police stations until they were placed on two civilian vessels and escorted out of T&T waters by the Coast Guard.
Three days later, they returned and were again detained. They were then quarantined and taken to the Chaguaramas Heliport, where they remain.
Most of the group filed lawsuits over the State’s handling of them, as deportation orders were issued to the adults but not the children.
The woman and her son sought and obtained three injunctions barring their deportation pending the determination of their case.
They also filed a habeas corpus writ seeking their release pending the outcome of the case, which was denied by both the High Court and Court of Appeal, leading to the final appeal before the Privy Council.
The day before the case was due to be heard by the Privy Council in March, a deportation order was issued to the teenager by the Ministry of National Security.
In determining the case, the Privy Council ruled that the teenager’s period of detention before the order was recently issued was unlawful, as such an order is required under Section 16 of the Immigration Act.
The law lords rejected the State’s claim that the teenager was covered by his mother’s deportation order under the policy.
“The correct interpretation of Section 16 is that absent such a deportation order there is no power to detain. Lawful authority to detain cannot be derived from the respondent’s policy,” Lord Stephens, who delivered the board’s judgement, said.
The board did not consider a challenge to the legality of the teenager’s recent deportation order based on delay, as it stated that it should be considered by the local courts in the family’s substantive case.
The board rejected the family’s claim that they should not be detained pending deportation, as they cannot be deported pending the outcome of the substantive case based on the injunctions.
“It would be an absurd consequence if an injunction granted to prevent the implementation of a deportation order, by a side wind, also had the unintended consequence of bringing the detention of an individual to an end,” Lord Stephens said.
“The absurdity of such a consequence would be even more apparent if there was a short period of detention up to the date of the injunction and there was a clear risk of the person absconding or committing further offences,” he added.
Although the board ruled that the local courts made five errors in law in determining that the family’s prolonged detention pending their legal challenges was not unreasonable, it stated that it would be inappropriate for it to perform its own assessment.
In his press release, Ramdeen described the outcome of the appeal as a “monumental victory” for the migrant population seeking asylum in T&T.
“The decision of the Privy Council exposes the unlawful executive action that has been perpetrated by this government against the migrant population, especially the children of the migrant population,” he said.
“The decision of the Privy Council evidences the blatant incompetence of successive ministers of national security of this government who promulgated, approved, oversaw and implemented a totally unlawful policy of detention ad deportation of children.”
The family was also represented by Tom Richards and Dayadai Harripaul, while Peter Knox, QC, Fyard Hosein, SC and Robert Strang represented the Chief Immigration Officer.