Tomlinson v The State of Belize; Tomlinson v The State of Trinidad & Tobago

• Jurisdiction: Caribbean States
• Judge: Byron, P.,Nelson, J.,Saunders, J.,Wit, J.,Anderson, J.
• Judgment Date: 17 July 2013
• Court: Caribbean Court of Justice
• Docket Number: CCJ Application No. OA 1 of 2013; CCJ Application No. OA 2 of 2013
• Date: 17 July 2013

Caribbean Court of Justice

Byron, P. CCJ.; Nelson, J. CCJ.; Saunders, J. CCJ.; Wit, J. CCJ.; Anderson, J. CCJ.

CCJ Application No. OA 1 of 2013; CCJ Application No. OA 2 of 2013

Tomlinson

and

The State of Belize

Tomlinson

and

The State of Trinidad & Tobago

Appearances:

The applicant, by Lord Anthony Clifford, QC, appearing with Ms. Anika Gray, Attorneys-at-law.

The State of Belize, by Mr. Nigel Hawke, appearing with Ms. ‘liana Swift and Mr. Herbert Panton, Attorneys-at-law.

The State of Trinidad and Tobago, by Mr. Seenath Jairam SC, appearing with Mr. Wayne D Sturge, Mr. Gerald Ramdeen, Mr. Kashka Hemans, Ms. Nicole Anna Jones and Ms. Lesley Almarales, Attorneys-at-law.

Caribbean Integration Law - Right of free movement pursuant to the Revised Treaty of Chaguaramas — Prohibition of homosexuals from entry into states — Whether it is arguable that the mere existence of the respective Immigration Acts has resulted in Tomlinson's having been prejudicial within Article 222(b) of the Revised Treaty of Chaguaramas — Relationship between domestic law and obligations under the Revised Treaty of Chaguaramas — Special leave granted — Immigration Act of Belize, Section 5 — Immigration Act of Trinidad and Tobago, Section 8.

EXECUTIVE SUMMARY

1 The claimant, Mr. Tomlinson filed an application seeking special leave to commence proceedings in the Court under Article 222 of the Revised Treaty of Chaguaramas. The application centres on the provisions of the Immigration Acts of Belize and Trinidad and Tobago which, according to Mr. Tomlinson, prohibit the entry of homosexual persons into the jurisdiction. Mr. Tomlinson is a homosexual man of Jamaican nationality and is an activist for the LGBT Community. Upon discovery of the prohibitions contained in the Immigration Acts, he has refused to travel to either State lest he fall afoul of the law. He claims that the existence of these provisions violates his right to free movement under the RTC.

2 The parties all agree that Mr. Tomlinson has demonstrated some of the requirements under Article 222. There is no dispute that Mr. Tomlinson is a CARICOM national, that the right to free movement enures for his benefit directly and the State of Jamaica has refused to espouse the claim on his behalf given his previous unimpeded travel to and from both States. The main point of contention is whether Mr. Tomlinson has satisfied the requirement to show an arguable case of prejudice. Mr. Tomlinson contends that the mere existence of the impugned provisions amount to prejudice. The States emphasise that they are bound by the decision of the Court in Myrie v. Barbados [2013] CCJ 3 (OJ) and a homosexual does not fall with the categories of persons to whom entry can be denied under the Myrie exceptions. They also marshall State practice and policy to demonstrate that homosexuals are not treated as a prohibited class for entry.

3 The Court holds that there is an arguable case that the mere existence of the legislative provisions in question amounts to prejudice, as demonstrated by the jurisprudence of the European Court of Human Rights and the UN Human Rights Committee. It also concludes that the interest of justice require that leave be granted because the issues raised in the proceedings involve significant aspects of Community law namely, the relationship between domestic law and the obligations under the RTC, which merit further examination.

4 Mr. Tomlinson is granted special leave to commence proceedings and must file his originating application within seven days as prescribed by Rule 10.4(7) of the Caribbean Court of Justice (Original Jurisdiction) Rules, 2006, as amended.

THE COURT,

Composed of D Byron, President, R Nelson, A Saunders, J Wit, and W Anderson, Judges

Having regard to the applications for special leave to commence proceedings, together with the annexures thereto, filed on the 31st May 2013 and amended on the 5th August 2013, the requests to be heard filed on behalf of the State of Belize and the State of Trinidad and Tobago on the 2nd July 2013 and the 20th June 2013, respectively, the case management conference held on the 17th July 2013, the written submissions of the Applicant filed on the 16th September 2013, the written submissions of the State of Belize filed on the 4th October 2013, the written submissions of the State of Trinidad and Tobago filed on the 7th October 2013, further written submissions...