Landmark decision by the CCJ brings clarity to the concept of free movement

Fri Oct 11, 2013

With its landmark ruling on October 3, in the Shanique Myrie case, the Caribbean Court of Justice (CCJ) has articulated clearly, for all who had doubt, that nationals of all member states of CARICOM have the right to move freely within the regional grouping, without being unreasonably obstructed.{{more}}

This right, stated in the Revised Treaty of Chaguaramas (RTC) and in a Decision of the Conference of Heads of Government of the Caribbean Community taken at their Twenty-Eighth Meeting in 2007, had very often been challenged and/or disregarded at ports of entry across the region.

Of course, there are conditions and exceptions to this right to free movement and entry. The Court however took pains to point out that the decision to deny entry to a Caricom national should not be taken arbitrarily, and when that decision is made, there are certain procedures that must be followed. The Court held that nationals should be given the opportunity to consult an attorney or a consular official of his or her country or to contact a family member. The Member State refusing entry also is required to give, promptly and in writing, reasons for refusing entry to a Community national. The receiving State is also obliged to inform the refused Community national of his or her right to challenge the decision.

The 2007 Conference Decision entitles a Member State to limit the free movement of a national of another Member State if such national is “undesirable” or would become “a charge on public funds”. However, the Court held that it is the responsibility of the Member State to prove that the person seeking entry falls into one of those categories. The concept of undesirability must be concerned with the protection of public morals, the maintenance of public order and safety and the protection of life and health.

The Court also dealt with the concept of Community Law in determining undesirability. It held that refusal on the basis of undesirability must be based on national law and on Community law, but where the former is inconsistent with Community law, the latter must prevail. This point is interesting, and the Court spoke to how Community rights are given effect and the obligations of those rights in domestic law. It said that regional decisions cannot be invalidated at the Community level by the failure on the part of a particular State to incorporate those decisions locally, as this would jeopardize the efficacy of the entire Caricom regime.

Even though the majority of Caricom states have not signed on to the Court in its appellate jurisdiction, the October 3 decision was issued by the Court in its original jurisdiction, in relation to the Revised Treaty of Chaguaramas. The decision is therefore binding on all member states of CARICOM, and cannot be appealed.

Immigration authorities and attorneys general around the region must therefore now be scrambling to review and amend their deportation procedures to ensure that they are in keeping with this ruling. Miss Myrie should be commended for her bravery in going forward with this case, which has brought clarity to this aspect of the RTC and will no doubt ease appreciably the hassles faced by many Caricom nationals as they travel around the region.

Finally, it is hoped that the reasoned, learned, objective and impartial manner in which the CCJ came to its decision in this case, will encourage more member states to sign on to the court in its appellate jurisdiction. In hearing the Myrie case, the judges on the CCJ did not sit in Trinidad and insist that the case be brought to them (as is the case with the Privy Council). Public hearings in the Myrie matter were held both in Jamaica and Barbados and a site visit was made to the Grantley Adams International airport in Barbados.

We congratulate the CCJ on this milestone decision and look forward to its implementation at immigration counters around the region.