Boundless Faith in their Destiny: Legal Realities in Trinidad and Tobago’s Refugee Landscape
Josiah Cyrus
Attorney-at-Law
Martin Anthony George & Company
BY: JOSIAH CYRUS
In the intricate mosaic of global humanitarian efforts, the United Nations High Commissioner for Refugees (UNHCR) emerges as a pivotal force, tirelessly advocating for the rights and well-being of displaced individuals worldwide. As the nation of Trinidad and Tobago grapples with the complexities of migration and asylum-seeking within its borders, a closer examination of the UNHCR becomes not only pertinent but essential.
In recent years, Trinidad and Tobago has found itself at the epicentre of a complex and unfolding humanitarian challenge, chief amongst which, has been the Venezuelan migration crisis. Fuelled by socio-political unrest and economic instability in neighbouring Venezuela, a significant number of Venezuelan citizens have sought refuge on the shores of this twin-island nation. As the Caribbean grapples with the impact of this mass migration, Trinidad and Tobago navigates the delicate balance between extending humanitarian support and managing the challenges posed by an unprecedented surge in arrivals who all put added strain on our local and domestic economy and create an additional burden for all our social services, schools, hospitals, security services, law enforcement, all are stretched to the limit.
Amidst Trinidad and Tobago’s engagement with the Venezuelan migration crisis, the voices of the UNHCR and its advocates become increasingly audible[1]. Within this dynamic landscape, the plight of Venezuelan migrants intersects with the broader discourse on the implementation of international refugee conventions, such as the 1951 Convention Relating to the Status of Refugees (the 1951 Convention), shaping the nation’s response and legal considerations in the face of the ongoing humanitarian challenge.
It is therefore imperative that the origin, history, and application of the UNHCR and the 1951 Convention to Trinidad and Tobago is examined.
The UNHCR
As described on its official website, the UNHCR (also called the UN Refugee Agency), is “a global organization dedicated to saving lives, protecting rights, and building a better future for people forced to flee their homes because of conflict and persecution[2]”. Formally known as the Office of the High Commissioner for Refugees, UNHCR was established by the General Assembly of the United Nations in 1950 in the aftermath of the Second World War to help the millions of people who had lost their homes[3].
The 1951 Convention Relating to the Status of Refugees
The 1951 Convention[4] established the internationally accepted definition of a refugee and delineates the legal protection, entitlements, and assistance afforded to individuals meeting this classification.
At the heart of the 1951 Convention lies the principle of non-refoulement, asserting that refugees must not be returned to a country where they face imminent threats to their life or freedom. This foundational document sets forth fundamental standards for the treatment of refugees, ensuring their right to housing, work, and education while displaced, thereby enabling them to lead lives characterized by dignity and independence.
Moreover, the 1951 Convention defines the reciprocal responsibilities of refugees towards host countries and specifies certain exceptions, such as war criminals, who do not qualify for refugee status. Additionally, it elucidates the legal obligations incumbent upon the States that are parties to one or both of these crucial instruments
Who is a Refugee?
The 1951 Convention defines a refugee as an individual who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group, or political opinion, is outside the country of their nationality and is unable or unwilling to avail themselves of the protection of that country[5]. This definition emphasizes the crucial criterion of a well-founded fear of persecution based on specific grounds, which are race, religion, nationality, membership in a particular social group, or political opinion. To be considered a refugee under the 1951 Convention, an individual must meet these criteria and be outside their country of nationality due to a genuine fear of persecution.
Refugees, as set out in the 1951 Convention, possess fundamental rights and protections. Foremost among these is the said principle of non-refoulement (Article 33), ensuring refugees are not forcibly returned to a country where they would face persecution. Refugees enjoy the freedom of religion (Article 4) and have access to courts (Article 16) to address legal issues. The convention guarantees refugees, particularly children, the right to elementary education (Article 22) and access to public relief and assistance, including housing and public education (Article 23). Regarding employment, refugees have the right to gainful employment (Article 17-19), treated on equal terms with nationals. Additionally, refugees are entitled to housing on par with nationals (Article 21) and have the right to obtain travel documents for international travel (Article 28).
However, while the 1951 Convention outlines these rights, the realization of these said rights depends on the host country’s policies and practices, and subsequent protocols may further specify and alter these protections.
The Relationship between Trinidad and Tobago and the 1951 Convention
Trinidad and Tobago on 2nd November, 2000 became the 140th country to sign the 1951 Convention Relating to the Status of Refugees (1951 Refugee Convention) and its 1967 Protocol[6]. By acceding to the two international instruments which govern the treatment of asylum seekers and refugees, this country acknowledged the vulnerability of refugees and the role that the international community plays in the protection of the rights of refugees[7].
Of particular import, Article 31[8] of the 1951 Convention specifically provides for the non-penalisation of refugees and asylum-seekers who may have entered or stayed in a receiving country irregularly, if they present themselves without delay and show good cause for their illegal entry or stay. It further provides that restrictions on movement shall not be applied to such refugees (or asylum-seekers) other than those which are necessary and such restrictions shall only be applied until their status is regularised or they gain admission into another country.
Prior to Trinidad and Tobago’s signing of the 1951 Refugee Convention, by Cabinet Minute No. 4809 dated 16 November, 1979[9] the Government agreed that:
(i) Requests for the granting of refugee status on political or economic grounds continue to be dealt with under the appropriate sections of the immigration laws of Trinidad and Tobago governing the grant of resident status; and
(ii) Cases of refugees from national disasters be left open and be decided, when the need arises, on the basis of the circumstances prevailing in Trinidad and Tobago at the particular period in time.
The relevance and impact of the 1951 Convention in Trinidad and Tobago, following the mass migration of Venezuelan citizens to Trinidad and Tobago, has been a significant and polarizing issue of debate, both amongst citizens and legal/judicial officers. The most recent and definitive authority on this issue is the recent case of Claim No. CV 2023 – 00767 Yohan Jesus Rangel Dominguez v Minister of National Security[10].
In this claim, the Court was asked to examine the Claimant’s rights under the Constitution and to determine whether the provisions of the 1951 Convention could be viewed, by the Court, as forming part of his right to due process and protection of the law.
The Constitution of Trinidad and Tobago provides for the fundamental rights and freedoms of individuals under Section 4 and 5 thereof[11]. Under Section 14, an individual can invoke the jurisdiction of the High Court and seek redress when any rights are infringed or about to be infringed.
After considering legal authorities[12] on the issue, the Court found that a treaty, such as the 1951 Convention, was not capable of altering domestic law nor impacting existing legal rights unless the treaty was enacted into domestic law by or under authority of the legislature. On enactment, effect would then be given to the domestic legislation, and not to the terms of the treaty[13]. This position fell in line with several other authorities emanating from the United Kingdom[14].
The Court resolutely emphasized that neither the obligations delineated in the 1951 Convention nor the accompanying acknowledgment or deference to the UNHCR’s role had been assimilated into domestic law or the active immigration framework. The Court firmly insisted that no international body held the authority to dictate or compel Trinidad and Tobago, a Sovereign Republic, to be obligated by or implement the obligations stipulated in the 1951 Convention[15]. Consequently, Trinidad and Tobago’s considerations regarding “due process” or the “protection of the law” remained unaffected by the approaches and recommendations articulated in the 1951 Refugee Convention[16].
At paragraphs 39 and 40 of the judgement, the Court pronounced:
“39. This Court rejects the UNHCR’s argument that the 1951 Refugee Convention is binding upon this Republic or that the principle of non-refoulement must be followed as it is customary international law. There are obligations within the 1951 Refugee Convention which are inconsistent with the provisions of the Immigration Act and as a sovereign democratic State, the Parliament of Trinidad and Tobago has the sole and absolute right to make laws for the peace, order, and good governance of this twin isle nation. To date, the Immigration Act remains as the operative law in this country with regard to matters of immigration, and where customary international law is in conflict with a domestic statute, as is evident on the facts of this case, the latter must prevail.
40. The unincorporated 1951 Refugee Convention cannot be used to extend the scope of the Constitution nor can the processes outlined thereunder be factored into any consideration as to the applicable “due process” or “protection of the law” considerations which apply in relation to the Claimant”
As such, the international obligations of non-refoulment imposed by Article 33(1) are not directly binding on Trinidad and Tobago and cannot be used to enforce any provisions under the 1951 Convention[17].
Conclusion
The ruling in Claim No. CV 2023 – 00767 Yohan Jesus Rangel Dominguez v Minister of National Security underscores the intricate interplay between international obligations and domestic legal frameworks in the context of refugees and asylum-seekers in Trinidad and Tobago. Although the twin-island Republic, by signing the 1951 Convention, has acknowledged the importance of global co-operation in protecting the rights of refugees, the recent legal proceedings highlight the nuanced approach taken by the domestic legal system. The Court’s unequivocal stance reaffirms the supremacy of domestic legislation, emphasizing that the 1951 Convention’s provisions are not automatically binding unless explicitly enacted into domestic law. This highlights the delicate balance required to align international commitments with sovereign legal systems, an issue that has gained prominence amid global crises involving mass refugee migration. The debate surrounding the relevance and impact of the 1951 Convention in Trinidad and Tobago remains a dynamic and evolving discourse, likely to be adjudicated upon by the local Court of Appeal and the apex court, the Judicial Committee of the Privy Council in the near future. Until such a time, holders of UNHCR cards hoping to find domestic shelter under the umbrella of the 1951 Convention peer into an uncertain future, forged from a desire for Liberty, and with Boundless Faith that refuge in Trinidad and Tobago is their Destiny.
[1] http://www.guardian.co.tt/news/unhcr-says-time-for-asylum-system-in-tt-6.2.1854713.833ad60fb8
https://tt.loopnews.com/content/living-water-community-unhcr-advocate-inclusion-migrants-632636
[2] https://www.unhcr.org/about-unhcr
[3] Ibid
[4] https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-relating-status-refugees
[5] https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-relating-status-refugees
[6] https://www.unhcr.org/news/briefing-notes/trinidad-and-tobago-signs-refugee-convention-protocol
[7] CV 2023 – 00767 Yohan Jesus Rangel Dominguez v Minister of National Security at Paragraph 7
[8] Ibid
[9] CV 2023 – 00767 Yohan Jesus Rangel Dominguez v Minister of National Security at Paragraph 13
[10] https://webopac.ttlawcourts.org/LibraryJud/Judgments/HC/seepersad/2023/cv_23_00767DD04jul2023.pdf
[11] Sections 4 and 5 provide as follows: –
“4. It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms, namely:
(a) the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law;
(b) the right of the individual to equality before the law and the protection of the law…”
5. (1) Except as is otherwise expressly provided in this Chapter and in section 54, no law may abrogate, abridge or infringe or authorise the abrogation, abridgment or infringement of any of the rights and freedoms hereinbefore recognised and declared.
(2) Without prejudice to subsection (1), but subject to this Chapter and to section 54, Parliament may not—
…
(b) impose or authorise the imposition of cruel and unusual treatment or punishment …
(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;
(h) deprive a person of the right to such procedural provisions as are necessary for the purpose of giving effect and protection to the aforesaid rights and freedoms.”
[12] Seepersad J at paragraph 21: “The Judicial Committee of the Privy Council also pronounced on this issue in Thomas v Baptiste (1998) 54 WIR 387 at page 422 where it was stated that:
“It follows that the terms of a treaty cannot effect any alteration to domestic law nor deprive the subject of existing legal rights unless and until enacted into domestic law by or under authority of the legislature. When so enacted, the courts give effect to the domestic legislation, not to the terms of the treaty”.”
[13] Seepersad J at paragraph 23: “It is evident that in order for international treaties to affect rights domestically, ratification on the international plane is insufficient.”
[14] Ahmed v HM Treasury [2010] UKSC 2; Thomas v Baptiste (1998) 54 WIR 387; Matadeen v Pointu [1998] UKPC 9
[15] Seepersad J at paragraph 48: “The failure by the State to effect domestic incorporation of the 1951 Refugee Convention or to take decisive action to give effect to the obligations which it acknowledged when it assented to the said Convention is unfortunate and regrettable. This situation can have consequences and this non-compliance may adversely affect this Nation’s international reputation and possibly attract the imposition of sanctions to register international disapproval of Trinidad and Tobago’s failure to legislatively incorporate convention obligations. However no international body can, at this stage, mandate or demand that this Sovereign Republic is bound by or that it must adhere to and/or implement the 1951 Refugee Convention obligations.”
[16] Seepersad J at paragraph 32: “The 1951 Refugee Convention obligations and the consequential recognition of and/or deference to the role of the UNHCR have not been incorporated into domestic law nor have they been incorporated into the operative immigration framework. Consequently, the approach and recommendations outlined under the 1951 Refugee Convention does not form part of any “due process” or “protection of the law” considerations in this Republic.”
[17] Seepersad J at paragraph 52: “As previously outlined, in the absence of incorporation, the 1951 Refugee Convention and the Rome statue have no effect and/or legal status in Trinidad and Tobago. As a consequence the processes outlined therein cannot be used to circumvent the provisions of the Immigration Act or override any lawfully issued deportation order. Although this Republic has acceded to the 1951 Refugee Convention and the later 1967 Protocol to the Convention, the international obligations of non-refoulement imposed by Article 33(1) are not directly binding and cannot be used to create enforceable rights on a domestic plane as there has been no domestic legislative incorporation of the non-refoulement principle”.
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Boundless Faith in their Destiny: Legal Realities in Trinidad and Tobago’s Refugee Landscape