In Shanique Myrie v. The State of Barbados  CCJ 3, the Caribbean Court of Justice (“the Court”) sitting in its original jurisdiction was faced with an issue of major importance, that is, whether and to what extent CARICOM nationals have a right of free movement within the Caribbean Community.
The Claimant, Shanique Myrie who is a Jamaican national, arrived in Barbados on March 14 2011, was denied entry and the following day was deported to Jamaica. She brought an action against the State of Barbados in 2012 and asked the Court to make several Declarations and Orders including an order to pay special and punitive damages. The State of Jamaica joined the Claimant and was granted the status of Intervener by the Court.
The law applicable to this case is the Revised Treaty of Chaguaramas (“the RTC”) and the Decision of the Conference of Heads of Government of the Caribbean Community taken at their Twenty-Eighth Meeting (“the 2007 Conference Decision”).
Article 45 of the RTC states: Member States commit themselves to the goal of free movement of their nationals within the Community.
The 2007 Conference Decision reads:
AGREED that all CARICOM nationals should be entitled to an automatic stay of six months upon arrival in order to enhance their sense that they belong to, and can move in the Caribbean Community, subject to the rights of Member States to refuse undesirable persons entry and to prevent persons from becoming a charge on public funds.”
After hearing submissions from Barbados and the Community, the Court held that the use of the word “agreed” and not “decided” is inconsequential and accordingly, the 2007 Conference Decision is effective.
The Court was then met with the question, whether article 240 of the RTC requires the 2007 Conference Decision to be enacted at the domestic level before it becomes binding on that particular Member State. Article 240 (1) and (2) states:- 1. Decisions of competent Organs taken under this Treaty shall be subject to the relevant constitutional procedures of the Member States before creating legally binding rights and obligations for nationals of such States. 2. The Member States undertake to act expeditiously to give effect to decisions of competent Organs and Bodies in their municipal law.
Under the Barbados Immigration Act (Section 3), there is a basic presumption that persons who are not citizens or permanent residents of Barbados have no legal right of entry into the country. However, the Court stated that as a result of the RTC and the 2007 Conference Decision, CARICOM nationals do have a right to enter Barbados and all other Member States. The Court further stated that it is the duty of every Member State to ensure that its domestic law reflects and endorses Community law.
However, it should be noted that there are two exceptions to the right of entry, namely, that the Community national is an undesirable person, and, it is evident that the Community national will become a charge on public funds. The Court noted that since these grounds of refusal of entry are exceptions to a fundamental principle of free movement, the premises on which the refusal is based must be interpreted narrowly and strictly. Further, the burden of proof lies on the Member State that seeks to invoke either ground for denying entry.
As it relates to undesirability, the Court held that no restrictions in the interests of public morals, national security and safety, and national health should be placed on the right of free entry of a CARICOM national unless that person presents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.
In the event that a Member State denies entry to a CARICOM national, that State is required to give to the person reasons for the denial of entry promptly and in writing. The Court expressed the view that it would be reasonable to permit persons who have been refused entry the opportunity to contact an attorney or consular official of their country or a family member.
In light of the CCJ’s judgment in Shanique Myrie v The State of Barbados which highlighted relevant articles in the Revised Treaty of Chaguaramas and the 2007 Conference Decision, Community nationals have a right of entry into the territories of Member States and are entitled to an automatic stay of six months upon arrival. This definite right of entry may only be derogated from where the person is an undesirable or it is evident that the person will become a charge on public funds. The grounds for refusing entry to a CARICOM national must be narrowly and strictly interpreted.
– Kara-Je Kellman