PORT OF SPAIN, Trinidad--The Caribbean Court of Justice (CCJ) has dismissed a case brought by a homosexual and prominent gay rights activist in the region, who claimed that the Immigration Acts of Belize and Trinidad and Tobago seek to prohibit homosexuals from entering those countries.
Maurice Tomlinson, a Jamaican, had claimed that the two Caribbean Community Caricom states were in breach of their obligations under the Revised Treaty of Chaguaramas because their Acts contained provisions that discriminated against homosexuals.
But the CCJ dismissed Tomlinson’s assertions, saying he was unable to show that he had ever been or would be in danger of being prejudiced by the existence of the challenged provisions of the Immigration Acts of Belize and Trinidad and Tobago.
He had sought, from the CCJ, orders declaring that he has a right to enter the two states; and an order to have the countries amend their Immigration Acts to remove homosexuals from any class of prohibited immigrants.
While conceding that he has never actually been refused entry into either country, Tomlinson argued that the mere existence of these laws prejudiced the exercise of his right to free movement as provided for under Article 45 of the Treaty and the 2007 decision of the Conference of Heads of Government as elaborated by the CCJ in the well-known Shanique Myrie case.
Both Belize and Trinidad and Tobago acknowledged that Tomlinson does have a right of entry conferred by and under the Revised Treaty of Chaguaramas. They also highlighted the fact that he has entered both territories in the past without hassle, and that the existence of the legislation has not caused him to suffer any prejudice.
In the case of Belize, the Court agreed with the state’s view that homosexuals – and others – are prohibited from entering the country only where they are seeking financial gain either by offering sexual services themselves or by profiting from those performed by others and, as such, the provision would not be applicable to Tomlinson.
Critically, the CCJ indicated, this interpretation is bolstered by the practice of the Immigration authorities of Belize who apply the legislation in a manner consistent with that interpretation.
The Court agreed with Trinidad and Tobago that their Immigration Act differs from the Belizean statute in that it appears to view “homosexuals” as a category of prohibited persons, although the CCJ suggested that a more liberal interpretation of the Act was possible. It was shown, however, that Trinidad and Tobago’s Immigration Department does not apply this prohibition to homosexual Caricom nationals. Therefore, the State argued, Tomlinson should have no fear that he would be prejudiced in enjoying his right of entry.
The CCJ agreed with that view, noting that Trinidad and Tobago’s practice of admitting homosexuals of other Caricom member states is not a matter of discretion but a legal requirement based on Article 9 of the Revised Treaty of Chaguaramas. Similarly, Tomlinson, as a university graduate and Caricom national under Article 46 of the Revised Treaty of Chaguaramas, is entitled to a right to seek employment in, and thus to enter, Caricom member states and that these rights have been incorporated into the domestic laws of Trinidad and Tobago through the Caribbean Community Act, 2005, and the Immigration (Caribbean Community Skilled Nations) Act 1996.
The CCJ concluded that homosexual Caricom nationals have a right to freedom of movement essentially on the same terms as any other Caricom national; and the practice of both Belize and Trinidad and Tobago is in keeping with that right.
Nevertheless, the Court cautioned that member states should strive to ensure that national laws and administrative practices are consistent with the right of free movement of all Caricom nationals, and that this is a necessary component of the rule of law which is the basic notion underlying Caricom.
It also emphasised that continuing inconsistency between administrative practices and the apparent meaning of legislation is an undesirable situation as the rule of law requires clarity and certainty, particularly for nationals of other member states who are to be guided by such legislation and practice. ~ Caribbean360 ~
