Article 52 – Illegal Immigration in Trinidad and Tobago
Illegal Immigration in Trinidad and Tobago
By: Mr. Martin George
Attorney-at-law
Martin Anthony George & Co.
Attorneys-at-law
(Research Assistance provided by
Darrell Bartholomew, Attorney at Law)
DISCLAIMER: Please note this does NOT constitute LEGAL ADVICE or LEGAL CONSULTATION, which you should get from your own Attorneys and this is being shared with the general public for the purposes of information and discussion ONLY.
INTRODUCTION
Immigration is used to describe the process of an individual moving from one country to another to live and to establish themselves permanently in that new country.
Countries typically develop a system of laws, regulations, policies and procedures which govern immigration. For example, in Trinidad and Tobago, underpinning our immigration framework, we have the Immigration Act Chapter 18:01 and the Immigration Regulations (GN178/1974). The foundation of immigration law in the United Kingdom is the Immigration Act 2016, which guides the activities of the Home Office, which is responsible for controlling the UK border, along with managing the entry and stay of foreign nationals who require permission from the UK to enter and remain there. In the United States, the Immigration and Nationality Act performs a similar function.
Naturally, there are times where persons attempt to circumvent a country’s immigration rules, by entering without the requisite permission to do so, and for those who are successful in doing so, they are commonly referred to as ‘illegal immigrants’. We are all familiar with the stories which from time to time dominate the media and social media with respect to illegal immigrants entering our country such as multiple sightings of them arriving in our country via a variety of marine vessels, particularly in remote parts of the country, and this article focuses on what happens to illegal immigrants in Trinidad and Tobago when the relevant authorities discover their existence and take the necessary steps to detain and in some instances, send them back to their home countries. Interestingly enough, last weekend, at a Bar in St. James, the Immigration authorities arrested and detained around Two Hundred Venezuelan nationals whom they say were in T&T illegally. They were all taken to the heliport in Chaguaramas to be processed.
LAW
The Immigration Act Chapter 18:01 gives the Minister of National Security, the Chief Immigration Officer and Special Inquiry Officers (essentially Immigration Officers at a port of entry) the power to arrest and detain persons in defined circumstances. Section 14 of the Act provides as follows:
“14. (1) The Minister may issue a warrant for the arrest of any person in respect of whom an examination or inquiry is to be held or a deportation order has been made under this Act, and may order the release of any such person.
(2) The Minister, the Chief Immigration Officer or a Special Inquiry Officer, may make an Order for the detention of or direct the detention of any such person.”
Police Officers and Immigrations Officers have the power to arrest and detain persons without a warrant in specified circumstances. Section 15 of the Act provides that:
“15. Every police officer and every immigration officer may, without the issue of a warrant, order or direction for arrest or detention, arrest and detain for an inquiry of for deportation, any person who upon reasonable grounds is suspected of being a person referred to in section 9(4) or section 22(1)(i), and the Chief Immigration Officer may order the release of any such person.”
The persons described in Section 9(4) of the Act include persons convicted of certain offences, those who remain in the country after the expiration of their entry certificate (overstayers), and persons who have escaped from lawful custody or detention pursuant to the provisions of the Act. Section 22(1)(i) is of particular importance, as this is one of the statutory provisions which provide for the arrest and detention of non-nationals who enter Trinidad and Tobago other than at a port of entry and have avoided examination or inquiry under the Act. This is one of the provisions which has no doubt been relied upon in many instances with respect to the arrest and detention of persons who migrate to Trinidad and Tobago illegally.
The Act provides the Minister of National Security with the power to make deportation orders where applicable. Section 9(5) of the Act states:
“9. (5) The Minister may make a deportation order against any person referred to in subsection (4) or section 50(5), subject [as regards a person referred to in section 50(5)] to the provisions of section 31(3), and such person shall have no right of appeal and shall be deported as soon as possible.”
Further to the above, the Minister may also exercise the power to make deportation orders with respect to written permits issued to persons to enter Trinidad and Tobago, or if already present in the country, to remain here (commonly known as Minister’s permits). Section 10(6) of the Act states:
“The Minister may, upon the cancellation or expiration of a permit, make a deportation order respecting the person concerned and such person shall have no right of appeal from the deportation order and shall be deported as soon as possible.”
Additionally, in relation to unlawful entrants and prohibited migrants to Trinidad and Tobago, the Minister may issue deportation orders. Section 11 of the Act provides as follows:
“11. Nothing in this Part shall be construed as conferring any right to be or to remain in Trinidad and Tobago on any person who–
- either before or after the commencement of this Act has come into Trinidad and Tobago otherwise than in accordance with the former Ordinance or the Act, as the case may be; or
- is at the commencement of this Act a prohibited immigrant within the meaning of the former Ordinance,
and the Minister may make a deportation order against such person and such person shall have no right of appeal therefrom and shall be deported as soon as possible.”
Special Inquiry Officers may also order the deportation of an individual and they are given powers of inquiry pursuant to the Act. One of their primary functions is to determine who is able to enter and/or remain in Trinidad and Tobago, and this is provided for in Section 13 of the Act as:
“13. (1) Immigration officers in charge of a port of entry are Special Inquiry Officers and the Minister may nominate such other immigration officers as he considers necessary to act as Special Inquiry Officers.
(2) A Special Inquiry Officer has authority to inquire into and determine whether any person shall be admitted into Trinidad and Tobago or allowed to remain in Trinidad and Tobago or shall be deported and for the purpose of the exercise of such authority has all the powers and may do any of the things mentioned in the Schedule.
(3) Any person aggrieved by the decision of a Special Inquiry Officer may within twenty-four hours appeal to the Minister on the prescribed form and subject to sections 30 and 31 the decision of the Minister shall be final and conclusive and shall not be questioned in any Court of law.”
The Act also provides that in addition to a deportation order or as an alternative, in certain cases, conditional release may instead be ordered. Section 17(1) of the Act sets out that:
“17. (1) Subject to any order or direction to the contrary by the Minister, a person taken into custody or detained may be granted conditional release or an order of supervision in the prescribed form under such conditions, respecting the time and place at which he will report for examination, inquiry, deportation or rejection on payment of a security deposit or other conditions, as may be satisfactory, to the Chief Immigration Officer.
(2) Where a person fails to comply with any of the conditions under which he is released from custody or detention, he may without warrant be retaken into custody forthwith and any security deposit made as a condition of his release shall be forfeited and shall form part of the general revenue.”
ARREST, DETENTION, SUPERVISION AND DEPORTATION IN PRACTICE
The first Immigration official that a traveller who comes to Trinidad and Tobago via air or sea through one of our legal ports of entry will generally face is a Special Inquiry Officer. This Officer will conduct an inquiry into the reasons for travel to Trinidad and Tobago the validity of travel documents etc., and make a decision on whether or not to admit the traveller to the country. The traveller is provided with a landing certificate, which is basically a stamp in the holder’s passport, certifying that they are allowed to remain in Trinidad and Tobago and specifying the period for which they can stay. Usually conditions are attached such as saying that “No Employment is Permitted”. Extensions to a landing certificate are possible and upon its expiry, the individual is required to apply for another extension or leave the country. Failure to do so means that the individual is liable to arrest and detention, and possible deportation as being an Illegal Immigrant.
For persons who come to Trinidad and Tobago illegally, once they are discovered by the authorities, they may be subject to deportation proceedings. Normally, the first step in deportation proceedings is the holding of a special inquiry, in other words, a hearing to determine whether an individual who entered this country illegally should be deported. Failure to attend a special inquiry without a valid excuse is an offence under Section 40 of the Act and a person who commits such an offence is liable to a fine and/or imprisonment. As part of the process of deportation proceedings, illegal immigrants are often detained at the Immigration Detention Centre (IDC), which is located in Aripo, Trinidad. Complaints from the detainees at the IDC regularly capture the attention of the media, and allegations of poor conditions, inadequate accommodations, and poor quality of food are some of the most common grievances aired by detainees.
Quite curiously, neither the Act nor the Regulations provide a timeframe within which a special inquiry must be held, and so detainees at the IDC subject to deportation proceedings are often left languishing at the IDC for lengthy periods of time, at the public’s expense. A very interesting challenge to the period of detention was brought by an individual who was designated as an illegal immigrant and detained to be the subject of deportation proceedings (CV 2016-02258 Christopher Odikagbue v Chief Immigration Officer and Anor). Mr. Odikagbue was detained in April 2015 in accordance with Sections 14 and 15 of the Act, and up to the time of the filing of proceedings in July 2016, a special inquiry in relation to his deportation had not yet been held, with a notice to hold the special inquiry only being issued in April 2016. After considering the facts of the matter and the evidence adduced, the Court declared that the length of time Mr. Odikagbue was detained was not reasonably necessary for the holding of a special inquiry and that Mr. Odikagbue’s constitutional rights had been breached. The Court also ordered that a special inquiry be held within seven (7) days of the Court’s Order and that Mr. Odikagbue be paid damages by the State for the breach of his constitutional rights.
In 2017, Mr. Henry Ekwedike, a Nigerian national, was detained by Immigration officials and sent to the IDC. After being detained for approximately two months, an application for a writ of habeas corpus (an application which asks the relevant authorities to justify the detention of a person) was filed at the Court on his behalf, challenging the legality of Mr. Ekwedike’s ongoing detention at the IDC (CV 2017-02148 Henry Obumneme Ekwedike v The Chief Immigration Officer). Mr. Ekwedike had first entered this country illegally in 2008, following which he married a Trinidad and Tobago citizen in the same year. Based upon the advice of officials at the Ministry of National Security, Mr. Ekwedike departed the country and returned legally through one of our ports of entry. Subsequently, Mr. Ekwedike started the process of applying for resident status and was granted numerous extensions of his stay here by Immigration officials. During one of his customary visits to Immigration Division, after some concerns raised by one of the Immigration Officers, a rejection Order and an Order of supervision were issued against Mr. Ekwedike. At the conclusion of the Court proceedings, the Court ordered that Mr. Ekwedike be released from the IDC immediately, describing the issuance of the rejection Order as misconceived and the issuance of the Order of supervision flawed, particularly in light of the lack of a deportation Order being made against Mr. Ekwedike.
In another matter which made it all the way to the Privy Council (Jesus Alexander Rodriguez Martinez and Anor. v Chief Immigration Officer [2022] UKPC 9, Jesus Alexander Rodriguez Martinez and his mother, Luisa Del Valle Martinez Hernandez, challenged the lawfulness of their detention at the Chaguaramas Heliport, after their appeal had previously been dismissed by the Court of Appeal. In November 2020, both mother and child came to Trinidad from Venezuela by boat, following which they were detained by the Trinidad and Tobago Police Service (TTPS). After a related set of constitutional proceedings were determined in their favour, Ms. Hernandez and her son filed an application for a writ of habeas corpus in relation to their ongoing detention. After those proceedings made it to the Privy Council, the Law Lords partially allowed the appeal of Ms. Hernandez and declared that the detention of her son from December 2020 to March 2022 was unlawful, and remitted part of the habeas corpus proceedings back to the High Court of Trinidad and Tobago for determination.
On New Year’s Day in 2021, five Venezuelan nationals were detained by Officers of the TTPS, on suspicion of committing immigration related offences. Two of the Venezuelan nationals, Roselis Del Calle Lezama and Jennifer Carolina Lezama Bompart, being the holders of valid United Nations High Commissioner for Refugees (UNHCR) cards, filed judicial review proceedings challenging their detention (CV 2021-00001 Roselis Del Calle Lezama and Anor. v The Commissioner of Police and Anor.). It was argued on behalf of the Commissioner of Police that the judicial review application should fail as the Applicants had an alternative remedy available to them which would have resolved their issues in a more timely manner, namely, an application for a writ of habeas corpus. The Court agreed with this submission, and also held that the Applicants did not advance any arguable grounds for judicial review. As a result, these proceedings were determined in favour of the Commissioner of Police and the Chief Immigration Officer.
Often, persons who have been detained under the Act are released under an Order of supervision upon the payment of a security deposit and with certain conditions attached. Generally, such a person is likely to be deemed low risk as they have sufficient social and familial ties to be unlikely to flee from the country or to disobey the conditions of the Order. Persons with a spouse and/or children typically stand a good chance of being released on an Order of Supervision. In instances where a person subject to such an Order violates the conditions stipulated therein, they may be subsequently detained and the security deposit which was paid when the Order of supervision was issued would be forfeited to the State.
Once a deportation Order has been made against a person, they are then subject to voluntary or involuntary departure, and a decision on whether they may be allowed to make their own arrangements and depart the country on their own terms within a specified timeframe versus whether those arrangements would be made for them by the relevant Immigration officials, is taken on a case-by-case basis. Part of the departure procedure involves expenditure on the part of the detainees and/or their family members, as the purchase of airplane and/or boat tickets is normally required for them to return home, and many are stuck at the IDC in detention until their friends and family are able to raise the necessary funds for their airplane or boat tickets to return to their home countries.
Detention of illegal immigrants has the potential to be a costly business for a country, as we have seen from the experiences of the USA and several countries in Europe. The situation is no different in Trinidad & Tobago. It costs money to take care of detainees at the IDC, and as can be seen from the regular challenges to their detention which engage the attention of the Courts in the form of habeas corpus applications, applications for judicial review, and constitutional motions, which cause the State to incur additional expenditure when determined in favour of the detainees, the State would be wise to consider the merits of lengthy detentions at the IDC in lieu of speeding up process of deportation proceedings or ordering conditional releases. Any which way one looks at it, the problem of illegal immigration is one which is not going to go away soon.
Illegal Immigration in Trinidad and Tobago
© 2023 MARTIN ANTHONY GEORGE & CO