REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF ...webopac.ttlawcourts.org/LibraryJud/Judgments/HC/... · Mr. Rashid teaching the Holy Qur’an in several Masjids throughout

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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV2017-01513

IN THE MATTER OF THE JUDICIAL REVIEW ACT CHAP 7:08

AND

IN THE MATTER OF THE IMMIGRATION ACT CHAP 18:01

AND

IN THE MATTER OF THE DECISION OF THE CHIEF IMMIGRATION OFFICER TO

REFUSE TO PLACE HAFIZ MOHAMMED ABDUL GHANI RASHID AND INAYAT

FATIMA ON A FURTHER SUPERVISION ORDER PENDING THE APPOINTMENT

OF A SPECIAL INQUIRY OFFICER

BETWEEN

HAFIZ MOHAMMED ABDUL GHANI RASHID

First Claimant

INAYAT FATIMA

Second Claimant

AND

THE CHIEF IMMIGRATION OFFICER

First Defendant

THE MINISTER OF NATIONAL SECURITY

Second Defendant

Before the Honourable Mr. Justice V. Kokaram

Date of Delivery: Thursday 30th November 2017

Appearances:

Mr. Jagdeo Singh, Mr. Criston J. Williams and Kiel Taklasingh instructed by Ms. Shirvani

Ramkissoon for the Claimants

Ms. Mary Davis instructed by Mr. Nairob Smart for the Defendants

JUDGMENT

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Introduction

1. The Claimants, Hafiz Mohammed Abdul Ghani Rashid and his wife, Inayat Fatima, are Indian

citizens, living in this country for the past fifteen (15) years. The couple’s immigrant status has

not been finally settled by the Defendants. Over the years, several decisions were made by the

Defendants which effectively permitted their continued stay in this country. This included

granting missionary permits or landing certificates or in the case of the Minister of National

Security, the Second Defendant (“the Minister”), rendering advice on how their stay here could

be further extended under the Immigration Act Chap. 18:01. To date there are no deportation,

rejection orders or deportation proceedings issued against the couple. In January 2017 their

passports were seized by the First Defendant and on 21st April 2017 an order of supervision

was issued requiring them to attend Piarco International Airport to “verify their departure”

presumably back to India. The couple has challenged these decisions in these judicial review

proceedings.

2. Mr. Rashid is a religious scholar who has been described by the Caroni Jamaah’ah as an asset

to the Muslim Community.1 The couple legally entered this country in 2002 for the purpose of

Mr. Rashid teaching the Holy Qur’an in several Masjids throughout the country. He was

engaged in missionary work with the Anjuman Sunnat-ul-Jamaat Association (ASJA). The

couple has maintained a residence at LP#236 Southern Main Road, Warrenville. Since residing

in this country, out of their marriage they have had three sons, Rashad Abdul Rahman

Mohammed, Omair Abdul Raheem Mohammed and Zubair Abdul Raoof Mohammed. Rashad

is 12 years old, Omair is 9 years old and Zubair is now 7 years old and are all considered

residents of Trinidad and Tobago2.

3. The missionary permit under which Mr. Rashid has been rendering his teaching services

eventually expired in 2007. The couple’s application for residency was formally refused in

December 2009 by the Minister, however, the Minister left it open to consider such an

application favourably at a later date. Mr. Rashid thereafter continued to obtain exemptions

from the Minister to work without a permit3 from February 2010 to eventually February 2016.

Thereafter, he applied for extensions for their landing certificate. In January 2017, when the

1 Exhibit H.R.13 in the affidavit of Hafiz Mohammed Abdul Ghani Rashid filed 11th May 2017. 2 Section 5 of the Immigration Act Chap 18:01. 3 Pursuant to Regulation 10(14) of the Immigration Regulations.

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extension of their landing certificate expired, both of their passports were seized by the

Defendants. Eventually, an order of supervision (with material alterations made to the statutory

form) was made on 21st April 2017 by the Chief Immigration Officer with instructions to the

couple to report to the Piarco International Airport with return tickets to their country of

residence and to “verify departure”. The couple’s children are not the subject of the order and

conceptually, such an order places the couple at risk of deportation leaving their three (3) minor

sons in this country without any formal deportation proceedings being commenced.

4. In these judicial review proceedings, the couple has sought to quash this decision to issue this

order of supervision and seize their passports on the grounds of illegality, irrationality and

procedural impropriety. Fundamentally, the couple questions the method by which the First

Defendant is seeking to effectively carry out a deportation without making any deportation

order or conducting a Special Inquiry. There is no claim for constitutional relief but certainly

any decision in relation to the couple which impacts upon the children of the family, who are

residents, raises a concern of the manner in which such deportations should be executed. It

effectively breaks up a family unit. Without any mechanisms to care for the children if the

couple is to be legitimately deported, it prima facie violates the principle that administrative

decisions are to be taken having regard to the “best interest of the child”.

5. In my view, on the evidence in this case, the First Defendant has used the procedural vehicle

of the order of supervision for an illegal purpose. That is to effect a deportation without any

formal order for deportation having been made or deportation proceedings commenced. The

order of supervision is an aid to deportation proceedings, it has no life of its own. It is akin to

the grant of bail to preserve the liberty of the subject pending proceedings after the subject was

lawfully detained. There is no legitimacy to an order for supervision if there are not extant

deportation proceedings. To do otherwise amounts by analogy to the grant of bail where there

is no detention or charge.

6. The First Defendant has used the order of supervision as a vehicle of convenience to usher an

immigrant who may no longer have standing under the Immigration Act to leave this country.

However, the procedure prescribed in the Immigration Act does not provide for any such

process whereby an immigrant can be coerced to leave without being the subject of a

deportation or rejection order or Special Inquiry. Indeed any such attempts to so remove the

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couple based on the issue of the supervision order under review in the absence of deportation

proceedings deprives them of several enshrined review processes contemplated under the

legislation. There simply is no lawful basis for the First Defendant to issue such an order and

such a decision is irrational, illegal and procedurally improper.

7. If indeed the First Defendant intends to deport the couple, absent any deportation order issued

by the Minister, then fundamental fairness requires that the Defendants comport with the

requirements of the legislation and convene a Special Inquiry to determine properly the

immigrant status of the couple. At the appropriate stage the Defendants will take into account,

of course, all the circumstances of their residency in this country, their contributions and

support from the community.

8. For the reasons set out in this judgment, the order of supervision would be quashed. However,

insofar as any claim has been made against the Minister of National Security there is no

evidence before the Court that any decision has been made by the Minister that the couple are

not permitted entrants. Insofar as a claim has been made challenging such a purported decision,

that claim against the Minister must therefore fail. The couple’s passports are to be returned to

them forthwith. Having obtained their substantial relief in these declarations and orders and

having regard to the dearth of evidence on damages, it is not a fitting case to make an award

of damages.

The grounds for judicial review

9. In this claim, the Claimants seek several declaratory reliefs and orders in relation to the

supervision orders made on 21st April 2017 to have them permanently depart Trinidad and

Tobago and the decision to seize their passports. They contend that the supervision order and

the decision to request the Claimants to report to the Senior Immigration Officer at the Piarco

International Airport on 30th April 2017; to have them permanently depart Trinidad and

Tobago; in the absence of a declaration by the Second Defendant that the Claimants have

become members of the Prohibited Class of persons pursuant to Section 8(1) of the

Immigration Act Chapter 18:01 and therefore ceased to be permitted entrants and in the

absence of a deportation order, is illegal, irrational, and/or procedurally improper.

10. They contend that a Special Inquiry ought to have been convened and seek the following

declarations:

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(i) that the continuing failure and or refusal of the First Defendant to commence a Special

Inquiry within a reasonable time is illegal, irrational, and/or procedurally improper;

and/or

(ii) that the continuing failure and/or refusal of the First Defendant to grant a further order

of supervision in the prescribed form under such conditions, respecting the time and

place at which the Claimants will report for examination, inquiry, deportation or

rejection on the payment of a security deposit or other conditions in respect of the

Claimants is irrational and/or illegal and/or in breach of the policy of the Immigration

Act.

(iii) that the failure of the First Defendant to appoint a Special Inquiry Officer to inquire

into and determine whether the Claimants shall be allowed to remain in Trinidad and

Tobago or shall be deported is irrational and/or illegal and/or in breach of the provisions

of Section 13(2) of the Immigration Act Chap 18:02.

11. In relation to their passports, they seek a declaration that the First Defendant requesting, taking

and currently having in their possession the property of the Government of the Republic of

India passports numbered N8810734 and H7863653 respectfully are illegal, irrational, and/or

procedurally improper.

12. As against the Second Defendant, they seek a declaration that any decision made by the Second

Defendant to declare that the Claimants have ceased to be permitted entrants has been obtained

unfairly and in a procedurally improper manner.

13. They also seek orders of certiorari to remove into this Honourable Court and quash the decision

of the Chief Immigration Officer. An order of mandamus directing the Chief Immigration

Officer subject to Section 17(1) of the Immigration Act to place the Claimants on a further

order of supervision and pay a reasonable security deposit directing the Chief Immigration

Officer to return passports numbered N8810734 and H7863653 to the Claimants respectively.

14. As against both Defendants they seek the following relief:

(a) A declaration that any legislative provision which is construed to permit the First

Defendant or the Second Defendant or a Special Inquiry Officer to determine

finally a matter of law and/or the interpretation of any statute without judicial

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oversight will be contrary to the rule of law and/or the separation of powers implicit

in the Constitution of Trinidad and Tobago and void.

(b) This relief was effectively abandoned by the Claimants as no submissions on this

was made to this Court. In any event the Court’s disposition of this matter renders

consideration of such a declaration moot.

(c) Damages inclusive of aggravated and/or exemplary damages.

15. The grounds for the claim for judicial review are brief and can be set out in their entirety:

a) The order of supervision dated 21st April 2017 state that the purpose of the order is to

“verify departure”. This position can only be adopted should it be determined the

Claimants have become members of the Prohibited Class pursuant to Section 8(1) of

the Immigration Act. It is therefore unclear what procedure the First Defendant intends

to pursue.

b) The Minister may at any time declare that such persons has ceased to be a permitted

entrant and such person shall thereupon cease to be a permitted entrant. To date the

Claimants are unaware whether the Minister has declared that the Claimants have

ceased to be permitted entrants. However, if they have been so deemed, the decision is

irrational and/or illegal and/or procedurally improper and/or obtained unfairly and in

breach of the rules of natural justice.

c) After the Minister has declared that such persons has ceased to be a permitted entrant

the Minister may then make a deportation order. There is no evidence of a deportation

order having been issued.

d) Alternatively, if the First Defendant and/or his agents have failed to commence an

inquiry in accordance with the provisions of Section 22 of the Immigration Act; the

decision of the Second Defendant to have the Claimants report to the Senior

Immigration officer on the 30th April 2017 to “verify departure” is arbitrary and

unjustifiable.

e) The Claimants were never provided with a copy of any deportation order and are

therefore unable to ascertain whether the order of supervision dated 21st April 2017 was

premised on a deportation order being made or them being given the option to

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voluntarily depart the country having been determined as a member of the prohibited

class.

f) The Claimants have not been provided with an opportunity to resist their classification

as a member of a prohibited class either under Section 8(1) of the Immigration Act.

g) The Claimants cannot rely on Section 13(3) of Section 8 of the Immigration Act as

being persons aggrieved by the decision of a Special Inquiry Officer as the First

Defendant failed to comply with Section 13(2) of the Immigration Act.

h) There is no basis upon which the Second Defendant can issue deportation orders against

the Claimants and therefore the request to report to the Senior Immigration Officer at

the Piarco International Airport to “verify departure” cannot be justified.

i) The Second Defendant has failed to exercise its power to order a further order of

supervision(s) pending the resolution of any inquiry into their status. The failure to

exercise the power under Section 17 of the Immigration Act.

j) The Court maintains a supervisory jurisdiction over the decisions and actions of the

First Defendant and his delegates. Parliament cannot be presumed so to have enacted

Section 30 of the Act so as to: “authorise or effect the arbitrary detention, imprisonment

or exile of any person” or to “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.”

16. The Defendants in their affidavits4 assert the following:

a) The Anjuman Sunnat-ul-Jamaat Association (ASJA) made an application for a

missionary permit on behalf of Mr. Rashid. They could have made the application

because a missionary permit may be made on behalf of a person by a religious

organization based in Trinidad.

b) Mr. Rashid was granted a missionary permit which was valid for two years from 26th

October 2004 to 25th October 2006.

4 Affidavits of Lydia Ram-Ramnanansingh, Affidavit of Jeewan Seewnath and Affidavit of Bickramsingh

Baliramsingh filed on 4th August 2017.

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c) On 9th October 2006, ASJA applied for an extension of the missionary permit and Mr.

Rashid was granted an extension of one year from 26th October 2006 to 25th October

2007. This would have made it a total of three (3) years.

d) Under a missionary permit, the work done by the recipient must be of a charitable

nature. There is no dispute that Mr. Rashid was engaged legitimately in missionary

work and complied with the missionary permit.

e) By Cabinet Minute Number 2429 dated 15th September 1994, the maximum period for

a missionary permit is three (3) years. As such any further application for a missionary

permit for a person who already held a permit for three years would not be considered

within one year of completing the three year period. Therefore, the application made

by ASJA to extend the permit from 26th October 2007 to 25th October 2008 was refused

as it was made within one year of completing the three year period. It was not refused

on any ground that Mr. Rashid was not deserving of the permit.

f) The Claimants were granted vacation extensions pursuant to Section 9(1)(c) of the

Immigration Act from June 2008 to November 2009. Mr. Rashid presented a two year

work permit exemption dated 26th February 2010 to 22nd February 2012. His last work

permit expired on 22nd February 2016.

g) They were granted landing certificate extensions up to 19th January 2017. On 23rd

January 2017, the Claimants applied for a further extension but was refused. An Order

of Supervision was then made instructing them to return to the Immigration

Department. However, they did not return to the Immigration Department but instead

travelled to Panama for a day from 26th February 2017 to 27th February 2017. They

subsequently went to Grenada for a day.

h) On 22nd March 2017 they applied for an extension of time and was placed on another

supervision order. A supervision order was also made on 21st April 2017.

17. Attorney for the Claimants in his submission made much about the Defendants’ lack of

candour in responding the Claimants’ case. Indeed, the core issue in this case is to address the

reasons why a supervision order was issued and why it was in itself being used as an instrument

of deportation. Further, the proceedings raised the question as to the present immigrant status

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of the couple. Are they the subject of a deportation order? Has the Minister ordered their

departure? Was there extant or intended that a Special Inquiry be convened? There has been

silence on these matters by the Defendants.

18. There are on the face of the supervision order under question several alterations and additions

such as the hand written note “verifying departure”. The Defendants have to date not sought

to offer any explanation as to what these forms in their altered form were purported to convey

or to mean or who altered them. Their response is almost a hands-off approach as to the altered

forms that were issued. One could assume therefore that the last supervision order issued was

simply to require the couple to report to the airport with return tickets. But this begs the

question for what purpose or “and then what?”. More importantly, it raises the question on

what authority is the couple being told to purchase tickets to return to India, presumably,

leaving their children behind.

19. I agree with the Claimants that this lack of candour is a breach of the Defendants’ duty to this

Court. In R v Lancashire County Council ex p Huddleston [1986] 2 ALL ER 941, Lord

Donaldson MR noted that the Court expects that public authorities ought not to be partisan in

their own defence. “What is discreditable is a reluctance to explain fully what has occurred

and why…”. These judicial review applications are really for us to investigate the relationship

of individuals and public bodies with “all the cards faced upwards on the table and the vast

majority of the cards will start in the authority's hands.”

20. In Judicial Remedies in Public Law, 5th Edition, by Clive Lewis, it is observed at 9-907:

“The Courts generally recognize that there is an obligation on a public authority to make

candid disclosure to the Court of its decision making process, laying before it the relevant

facts and the reasoning for the decision challenged. … Sir John Donaldson M.R. expressed

the view that the Defendant was under “a duty to make full and fair disclosure” once

permission was granted. Purchas LJ expressed his view more circumspectly stating that the

defendant “...should set out fully what they did and why so far as is necessary fully and

fairly to meet the challenge” made by the Claimant.”

21. Equally, the Defendants have criticized the couple for not making full disclosure that they had

departed to Panama and Grenada in breach of the supervision order. This only begs the question

what was the effect of the supervision order, was it a lawful order and why was it issued?

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Furthermore, a careful examination of the conditions in the supervision order demonstrate that

it prohibited the couple from travelling out of the jurisdiction for more than 48 hours. These

trips to Grenada and Panama were day trips and were less than 48 hours. It may have been an

attempt to re-enter Trinidad to obtain further extensions of their stay in Trinidad. However,

there is no evidence of the couple engaging in an act of deception. Their non-disclosure in my

view is not material.

The issues

22. At the core of this claim is the status of the First Defendant’s supervision order. I therefore

propose to deal with the following issues:

a) The Order of Supervision:

(i) Whether the First Defendant had the jurisdiction or power to issue an order of

supervision directed to the couple in the manner prescribed by him;

(ii) If he did, whether it was a rational or lawful exercise of such power or;

(iii) Whether it was fairly exercised in all the circumstances.

b) The Passports

(i) Whether the Defendants were lawfully entitled or empowered to seize the couple’s

passports.

c) Damages

(i) If the decisions are to be quashed, whether the Claimants are entitled further to any

award of damages.

23. From the evidence adduced by the parties, the facts of the couple’s residency are largely not in

dispute and I propose to briefly summarise them to provide the context in which these issues

are to be analysed.

The residency of the couple

24. The couple are citizens of India. They entered into the country legally on 29th December 2002

for vacation purposes and were classified as visitors. The Anjuman Sunnat-ul-Jamaat

Association (ASJA) applied for and obtained a missionary permit for the purpose of Mr. Rashid

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conducting missionary work with masjids throughout Trinidad and Tobago. Their residency

here was facilitated by several applications under the Immigration Act.

25. First, pursuant to section 9(1) (e) of the Immigration Act the immigration officer may allow a

person to enter into Trinidad and Tobago under such condition for such period as may be fit:

“9(1)(e) clergymen, priests or members of a religious order entering Trinidad and Tobago or

who, having entered, are in Trinidad and Tobago in connection with the carrying out of their

religious duties in accordance with regulations made in that behalf …”.

26. As a beneficiary of a missionary permit he lawfully conducted missionary work in this country.

He received subsequent extensions of the missionary permit up to 2007. Importantly, by

Cabinet Minute No. 2429 persons were not eligible for missionary permits for more than three

(3) years and an extension would not have been entertained in the last year of that term. His

application for a further extension made in October 2007 therefore, was not entertained as it

was submitted within the last year of the three (3) year term. There is no unequivocal statement

from the Minister that a missionary permit would not be granted to Mr. Rashid for a further

three (3) year period if such an application was properly made.

27. Second, he received multiple extensions from the immigration department to remain in this

country until 2010. His final application for extension of landing certificate was for 1st March

2016 to January 2017.

28. Third, he applied for residency status in 2009. The application was eventually declined in 2009

with advice by the then Minister of National Security to consider applying for further

missionary work permit. The Minister also advised that after a further period of residency he

could be favourably considered for resident status at a later date. By letter dated 23rd December

2009, the Minister of National Security informed him:

“However the applicant could warrant favourable consideration at a later date if he is

granted Work Permits for five (5) years. The Anjuman Sunnat-Ul-Jammat Association Inc

(ASJA) could consider applying for a work permit for Hafiz Rashid as a Private (Specialist)

Teacher to train students in memorizing the Quran. Alternatively ASJA could apply for

another missionary permit for the applicant. This however may not be considered for the

grant of resident status.”

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29. There is no further correspondence from the Minister or decision made in relation to the couple.

This last correspondence is far removed from any decision to deport the couple and indeed to

the contrary reflected a facilitative approach of the Minister encouraging the couple’s stay in

this country through the missionary work of Mr. Rashid.

30. Fourth, he applied for several exemptions to work without a work permit which were

successfully granted from 2010 to 2016. There were no further work permit exemptions after

2016. Quizzically, the Defendant admits that Mr. Rashid made an application in January 2016

for a work permit and it was not granted by the First Defendant “but this remains subject to the

comments of the Chief Immigration Officer”. It creates the impression, as the Minister does in

his letter in response to the application for residency, that some favourable consideration may

yet be considered for the couple or Mr. Rashid. There is in other words no clear statement by

the Defendants that the couple are “persona non grata” falling within a prohibited class and

ought to be deported from this country.

31. From this background set out in the affidavit of the Claimants, it is not in contest that the couple

have been contributing to the welfare of citizens in this country, are of good character, have

not acted unlawfully or illegally, have not engaged in any criminal activity and have received

favourable consideration for residency at a later date.

32. However, upon his extension of his landing certification expiring in January 2017, the couple’s

passports were seized and placed on orders of supervision. No reasons were provided for the

seizure of the passports and no information has been provided to the couple regarding either

their present immigrant status or whether deportation proceedings against them have in fact

commenced.

The orders of supervision

33. Supervision orders do not exist in isolation. They are not orders that exist in and of itself. They

are orders made in furtherance of the exercise of the power of detention for the purpose of

holding enquiries or examinations or deportations. It is an order made in aid of a deportation

process. Where a person is subject to deportation proceedings rather than detaining the

individual, the order of supervision is made to allow for the person’s release on conditions. It

is akin to bail and therefore goes hand in hand with a power to detain. See paragraphs 17.39

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and 17.55 of Macdonald’s Immigration Law and Practice 6th Edition by Ian A Macdonald

QC and Frances Webber.

34. The power to issue supervision orders is to be gleaned from a reading of both Sections 16 and

Section 17 of the Immigration Act, Part II Administration which provides:

“16. Any person in respect of whom an inquiry is to be held, or an examination under

section 18 has been deferred under section 20, or a deportation or rejection order has

been made may be detained pending inquiry, examination, appeal or deportation at an

immigration station or other place satisfactory to the Minister.

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.”

35. These sections were recently treated judicially by Gobin J in Henry Obumneme Ekwedike

and the Chief Immigration Officer and the Attorney General CV2017-02148. A

supervision order can only be issued after a person is detained for the purpose of deportation

proceedings. It is clear from Section 16 of the Immigration Act that a person can be detained

pending examination, deportation, inquiry and appeal. Section 17 of the Immigration Act

provides for the conditional release of that person pending the examination, deportation,

inquiry or appeal. An examination of these different deportation processes underscores the fact

that there is no evidence in these proceedings that the Defendants have engaged any such

process. A brief examination of the process of examination, deportation and inquiry

demonstrate that neither of these procedures were invoked in this case.

36. Firstly, “examination of persons” are referred to in Sections 18-20 of the Immigration Act.

These sections provides as follows:

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“18. (1) Every person seeking admission shall first appear before an immigration officer at

a port of entry or at such other place as may be designated by an immigration officer in

charge of the port of entry for examination as to whether he is or is not admissible.

(2) Every person shall answer truthfully all questions put to him by an immigration officer

at an examination and his failure to do so shall be forthwith reported by the immigration

officer to a Special Inquiry Officer and shall be sufficient ground for deportation where so

ordered by the Special Inquiry Officer.

(3) Unless the examining immigration officer is of the opinion that it would or may be

contrary to a provision of this Act or the Regulations to admit a person examined by him,

he shall, after such examination, immediately grant admission to such person.

19. Where so required by the Regulations, a person seeking admission to Trinidad and

Tobago or a person referred to in section 8 shall undergo a mental or physical examination

or both by a medical officer.

20. (1) Where, in the opinion of the examining immigration officer, a person appearing

before him for examination cannot be properly examined by reason of the effects of

alcohol, drugs or illness, the immigration officer may cause an examination of such person

to be deferred until such time as he may be properly examined or may make an order for

his rejection.

(2) A rejection order in the prescribed form or copy thereof shall be served upon the person

against whom it is made and upon the owner or master of the vessel by which such person

was brought to Trinidad and Tobago.

(3) A rejection order shall cease to be in force or to have effect when the person against

whom it was made again appears before an immigration officer and can, in the opinion of

such officer, be properly examined by him.”

37. See also Section 21 of the Immigration Act empowering the immigration officer to issue a

rejection order after examination of a person seeking to enter into the country.

38. This power under “Examination of Persons” is not applicable in this case as examinations are

only conducted by persons seeking admission on a port of entry. The couple were not at the

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time these orders were issued or when their passports were seized seeking admission or entry

into this country. Indeed they were resident here for fourteen (14) years.

39. Secondly, the supervision order can be issued pending a Special Inquiry. Special Inquiries are

governed by Sections 21-27 of the Immigration Act. As these Inquiries are a special feature of

the immigration practice which enshrines due process in effecting a deportation the relevant

sections are set out in full:

“21. (1) Where an immigration officer, after examination of a person seeking to enter into

Trinidad and Tobago, is of opinion that it would or may be contrary to a provision of this

Act or the Regulations to grant admission to such person into Trinidad and Tobago, he may

either—

(a) make an order for the rejection of such person; or

(b) cause such person to be detained pending the submission of a report to a Special

Inquiry Officer.

(2) A person in respect of whom an order for rejection has been made under subsection

(1)(a) who is aggrieved by the making of such order may forthwith give notice of appeal

to the immigration officer.

(3) Where a notice of appeal has been given under subsection (2), the immigration officer

shall forthwith make arrangements for the appeal to be heard and determined by a Special

Inquiry Officer.

(4) Where a notice of appeal has been given under subsection (2), the immigration officer

may either—

(a) cause such person to be detained pending the hearing and the determination of

such appeal; or

(b) release such person on such terms and conditions as he thinks fit having regard

to all the circumstances of the case.

(5) The provisions of section 20(2) and (3) shall apply for the purposes of an order for

rejection made against a person under subsection (1)(a).

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22. (1) Where he has knowledge thereof, any public officer shall send a written report to

the Minister in respect of paragraphs (a) to (c) and to the Chief Immigration Officer in

respect of paragraphs (d) to (i), with full particulars concerning—

(a) any person, other than a citizen of Trinidad and Tobago, who engages in,

advocates or is a member of, or associated with any organisation, group or body of

any kind that engages in or advocates subversion by force or other means of

democratic Government, institutions or processes;

(b) any person, other than a citizen of Trinidad and Tobago, who, if in Trinidad and

Tobago has, by a Court of competent jurisdiction, been convicted of any offence

involving disaffection or disloyalty to the State;

(c) any person, other than a citizen of Trinidad and Tobago, who, if out of Trinidad

and Tobago, engages in espionage, sabotage or any activity detrimental to the

security of Trinidad and Tobago;

(d) any person, other than a citizen of Trinidad and Tobago, who is convicted of an

offence for the violation of section 5 of the Dangerous Drugs Act;

(e) any person who being a resident is alleged to have lost that status by reason of

section 7(2)(b) or (4);

(f) any person, who, being a permitted entrant, has been declared by the Minister to

have ceased to be such a permitted entrant under section 9(4);

(g) any person other than a citizen or resident of Trinidad and Tobago who has

become a charge on public funds;

(h) any person, other than a citizen of Trinidad and Tobago, who counsels, aids, or

abets others to remain in the country illegally;

(i) any person other than a citizen of Trinidad and Tobago who either before or after

the commencement of this Act came into Trinidad and Tobago at any place other

than a port of entry or has eluded examination or inquiry under this Act.

(2) Every person who is found upon an inquiry duly held by a Special Inquiry Officer to

be a person described in subsection (1) is subject to deportation.

Page 17 of 34

23. (1) Where a Special Inquiry Officer receives a report under section 18 he may admit

such person into Trinidad and Tobago or may cause such person to be detained for

immediate inquiry under this Act.

(2) Subject to any Order or direction by the Minister, the Chief Immigration Officer shall,

upon receiving a written report under section 22 and where he considers that an inquiry is

warranted, cause an inquiry to be held concerning the person respecting whom the report

was made.

(3) Where a Special Inquiry Officer receives a report under section 21 with respect to a

person seeking admission into Trinidad and Tobago who has been detained he shall hold

an inquiry concerning such person.

24. (1) An inquiry by a Special Inquiry Officer shall be separate and apart from the public

and in the presence of the person concerned wherever practicable, but the person concerned

shall, on request, be entitled to a public hearing.

(2) The person concerned shall be entitled to conduct his case in person or by an Attorney-

at-law, or may be assisted in conducting his case at the hearing by any other person with

leave of the Special Inquiry Officer (which leave shall not be unreasonably withheld).

(3) The Special Inquiry Officer may, at the hearing, receive and base his decision upon

evidence considered credible or trustworthy by him in the circumstances of each case.

(4) Where an inquiry relates to a person seeking admission to Trinidad and Tobago, the

burden of proving that he is not prohibited from admission to Trinidad and Tobago rests

upon him.

(5) If the respondent in a deportation matter admits the factual allegations in the order to

show cause and notice of hearing and is willing to leave Trinidad and Tobago voluntarily

and at no expense to the Government of Trinidad and Tobago, he may make verbal

application for voluntary departure before the Special Inquiry Officer and if the Special

Inquiry Officer is satisfied that the case is genuine he may, instead of making a deportation

order against such person issue the prescribed form for his voluntary departure.

Page 18 of 34

25. (1) At the conclusion of the hearing of an inquiry, the Special Inquiry Officer shall give

his decision in writing as soon as possible and shall give it in the presence of the person

concerned wherever practicable.

(2) Where the Special Inquiry Officer decides that the person concerned is a person to

whom section 4 relates, he shall, upon giving his decision, admit or let such person come

into Trinidad and Tobago or remain therein, as the case may be.

(3) Where the Special Inquiry Officer decides that the person concerned is a person who—

(a) in the case of a permitted entrant, is not a member of a prohibited class;

(b) in the case of a person other than a citizen of Trinidad and Tobago, or a resident

who is in Trinidad and Tobago, is not proven to be a person described in section

8(1)(d), (e), (f), (j), (k), (l), (m) or (o); or

(c) in the case of a resident who is in Trinidad and Tobago is not proven to have

lost that status by reason of section 7(1), he shall, upon giving his decision, subject,

in the case of the admission of a person mentioned in paragraph (a), to the

provisions of this Act and any directions to the contrary given him by the Minister,

admit or let such person come into Trinidad and Tobago or remain therein, as the

case may be.

(4) In the case of a person other than a person referred to in subsection (2), the Special

Inquiry Officer shall, upon giving an adverse decision make an order for the deportation of

such person.

26. An inquiry may be re-opened for the hearing and receiving of additional evidence or

testimony by Order of the Minister or at the instance of the Special Inquiry Officer who

presided at such inquiry, or by any other Special Inquiry Officer acting upon the directive

of the Chief Immigration Officer; and the Special Inquiry Officer concerned may confirm,

amend or reverse the decision previously given.

27. (1) No appeal may be taken from a deportation order in respect of any person who is

ordered deported as a member of a prohibited class described in section 8(1)(a), (b) or (c)

where the decision is based upon a certificate of the examining medical officer, or as a

person described in section 8(1)(j) and (k).

Page 19 of 34

(2) Except in the case of a deportation order against persons referred to in section 50(5), an

appeal may be taken by the person concerned from a deportation order if the appellant

within twenty-four hours serves a notice of appeal in the prescribed form upon an

immigration officer or upon the person who served the deportation order.

(3) All appeals from deportation orders may be reviewed and decided upon by the Minister,

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.

(4) The Minister may—

a. consider all matters pertaining to a case under appeal;

b. allow or dismiss any appeal; or

c. quash a decision of a Special Inquiry Officer that has the effect of bringing a person

into a prohibited class and substitute the opinion of the Minister for such decision.

(5) The Minister may in any case where he thinks fit appoint an Advisory Committee

consisting of such persons as he considers fit for the purpose of advising him as to the

performance of his functions and the exercise of his powers under this section.

(6) The Minister may in any case where he considers it fit to do so, cancel any deportation

order whether made by him or not.

40. These Inquiries are a specific process to enquire into the issue of whether a person is to be

deported or granted admission. Importantly, the Special Inquiry procedure allows for a process

under Section 24(5) of the Immigration Act of a voluntary departure by the person subject to

proceedings as set out above. Inquiries can be re-opened for additional evidence under Section

26 of the Immigration Act as set out above. There can also be an appeal of a deportation order

in limited circumstances as provided for under Section 27 of the Immigration Act.

Furthermore, regulation 28(1)(b)(ii) provides:

“28. (1) Where the Minister dismisses an appeal against a deportation order pursuant to

any provision of the Act, he shall direct that the order be executed as soon as

practicable, except that—

…(b) in the case of any other person who was not a resident at the time of the making

of the order of deportation, having regard to—

Page 20 of 34

…(ii) the existence of compassionate or humanitarian considerations that in the

opinion of the Minister warrant the granting of special relief, the Minister

may direct that the execution of the deportation order be stayed, or may

quash the order and direct the entry of the person against whom the order

was made.”

41. These are all safeguards which balances the liberty of the subject and the right of the State to

asset its sovereignty. See Jones J (as she then was) in Olalekan Sodiq V The Minister Of

National Security CV2009-03671.

42. Deportation orders can be made after an inquiry. The rules to effect a deportation are set out

in Part III of the Immigration Act under the heading “Deportation and Transportation.” If a

deportation order is made, Sections 28 and Section 29 of the Immigration Act provide that:

“28. A deportation order or copy thereof shall be served upon the person against whom it

is made and upon such other persons, and in such manner as may be prescribed.

29. (1) Unless otherwise provided in this Act, a deportation order shall be executed as soon

as practicable…”

43. Deportation orders can also be made by the Minister under Section 9(5) of the Immigration

Act and under Section 7 where someone has lost residency status.

44. There is no evidence in this case that deportation orders have been issued to the couple.

45. Turning to the Immigration Regulations, Regulations 25-31 further sets out the procedure to

be followed upon inquiries by Special Inquiry Officers and appeals to the Minister under the

Immigration Act, the duties and obligations of the immigration officers and the methods and

procedure for carrying out such duties and obligations. Specifically, Regulation 26(3) and

Regulation 29(2)(c) addresses the issue of appeals from a Special Inquiry. Form 20 is the

Notice of Deportation Form. Form 19B is the Deportation Order. Form 25 is the Order of

Detention made by the Minister/Chief Immigration Officer/Special Inquiry Officer under

section 14(2) of the Act and Form 29 is the Rejection Order.

46. Importantly, the form of supervision order set out in the Immigration Regulations on its face

indicates that it is made further to detention in “deportation proceedings” and not otherwise.

Indeed the order states on its face that “such person shall be placed under supervision and

Page 21 of 34

permitted to remain at large upon the following terms”. Section 17 is clear that the supervision

order only applied to persons “taken into custody or detained”. The couple was never taken

into custody by the Defendants.

47. In this case, where no deportation order was served and no rejection order was made, both of

which Mr. Rashid would have had a right to appeal; and no notice of Special Inquiry to be

convened, then on what basis could the couple be served a supervision order? The answer to

what deportation process the supervision order is in aid of lies quizzically on the form used by

the Defendants. The First Defendant has deleted the words “deportation” and inserted the

words “supervision”. The order is, in fact, it seems under the “hand” of the Defendants and

therefore is an order for supervision of someone not under deportation but under supervision!

This is certainly if not an anomaly, an unknown entity in immigration law and an impermissible

variation of the legal structure within which deportations are to be effected.

48. Turning specifically to the several supervision orders themselves, one can see on its face the

evidence of their patent illegality. Four (4) orders of supervision were made in 2017. The first

on 23rd January 2017 he was ordered to report on 6th February 2017 to the Senior Immigration

Officer at Port of Spain. The second order of supervision was 23rd January 2017 where he was

asked to report to the Senior Immigration Officer on 20th February 2017. The third order of

supervision was on 22nd March 2017 where he was asked to report to the Senior Immigration

Officer 21st April 2017 and the fourth order of supervision was on the 22nd March 2017 where

he was asked to report to the Senior Immigration Officer on 30th April 2017 at the Piarco

International Airport. The difference with the last order of supervision was that (a) it ordered

the couple to report to the airport (b) there was a notation on the form which said “verify

departure” in contrast to the others order which said “to produce tickets for departure”.

49. Interestingly, these orders were used to achieve apparently different purposes. In the first two

orders of supervision the word “deportation” was deleted and the word “supervision” was

substituted. From the deleted portions of the form it appears clearly, that the couple was not

subject to any deportation order but under an order of supervision to report for an unknown

purpose at a specific place and time. It is clear that they were not under any orders of

deportation nor were they subject to examination or inquiry.

Page 22 of 34

50. The last two orders were not that clear. First, although having been described as an order in

reference to the couple’s “supervision” and not “deportation”, the orders make it clear that

their supervision was subject to them producing themselves at a time and place for deportation.

In the last order it is stated:

“In the case of Hafiz Mohammed Abdul Ghani Rashid whose deportation supervision

in accordance with the said Immigration Act was ordered on 22/3/17…”

51. It is clear that the order is not in furtherance of any enquiry or examination or deportation.

Indeed it is not made clear that any such order was made. Curiously, especially in the

circumstances of the couple’s residency set out above, it would be difficult to assert if any such

decision was made and certainly no attempt by the Defendants have been made to say that any

such decision has been made.

Illegality

52. The Defendants in its affidavits have deposed that the couple’s failure to report to the airport

means that they have breached their order of supervision and therefore have now ceased to be

permitted entrants. This, however, begs the question of the legal status of the supervision order.

The Defendants have sought in their written submissions to rely on the sections 9(1) (e), 9(2),

9(4)(k), 17(1), 17(2), 21(1) and 21(2) of the Immigration Act and Form 28 of the Immigration

Regulations to justify their actions. I deal with these sections in turn below to demonstrate that

none of them provide a statutory basis to provide legitimacy to the Defendants’ actions.

“9. (1) An immigration officer may allow to enter Trinidad and Tobago on such conditions

and for such periods as may be fit and proper in any particular case, the following persons

or classes of persons, as the case may be:

…(e) clergymen, priests or members of a religious order entering Trinidad and Tobago or

who, having entered, are in Trinidad and Tobago in connection with the carrying out of

their religious duties in accordance with regulations made in that behalf.”

53. It is clear that under this section the Claimants were lawful entrants.

54. Section 9(2) of the Immigration Act provides:

“(2) Subject to this Act, an immigration officer shall issue to a person who has been allowed

to enter Trinidad and Tobago under subsection (1) [other than a person mentioned in

Page 23 of 34

paragraph (a) or (b) thereof], a certificate which shall be expressed to be in force for a

specified period and subject to such terms and conditions as may be mentioned therein.”

55. The Immigration Officers have continued to issue such certifications however, the conditions

have since lapsed. The question that arises is what is the permitted step under the Immigration

Act to provide for the deportations of such a person upon the expiration of those conditions?

56. Section 9(4)(k) of the Immigration Act provides:

“9(4) Where a permitted entrant is in the opinion of the Minister a person described in

section 8(1)(k), (l), (m) or (n), or a person who—

…(k) has, since he came into Trinidad and Tobago broken any of the terms and conditions

of the certificate issued to him under subsection (2), the Minister may at any time declare

that such person has ceased to be a permitted entrant and such person shall thereupon cease

to be a permitted entrant.”

57. There is no evidence that the Minister has declared that the couple have ceased to be a

permitted entrant.

58. Section 17(1) and (2) of the Immigration Act states:

“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.”

59. This is the governing provision for supervision orders. However, such orders are to be issued

if one is taken into custody or detained and moreover it refers to the condition setting out the

time and place the person will report for examination, inquiry, deportation or rejection. Of

course, one would report for deportation if they are subject to a deportation order.

Page 24 of 34

60. Section 21(1) of the Immigration Act states:

“21. (1) Where an immigration officer, after examination of a person seeking to enter into

Trinidad and Tobago, is of opinion that it would or may be contrary to a provision of this

Act or the Regulations to grant admission to such person into Trinidad and Tobago, he may

either— (a) make an order for the rejection of such person; or

(b) cause such person to be detained pending the submission of a report to a

Special Inquiry Officer.”

61. The couple were not seeking to enter Trinidad and Tobago.

62. Section 21(2) of the Immigration Act provides:

“(2) A person in respect of whom an order for rejection has been made under subsection

(1)(a) who is aggrieved by the making of such order may forthwith give notice of appeal

to the immigration officer.”

63. This usefully sets out the couple’s right of appeal. However, it cannot be invoked in this case

as there is no order for rejection.

64. The Defendants rely on Form 28 however this does not set out the procedure for the deportation

of the couple.

65. In Naidike and Ors v The Attorney General [2004] UKPC 49 paragraph 41, it was stated:

“True, there is no requirement to serve or otherwise publish the declaration but it appears

to the Board unsurprising that an immigrant should only lose his status as a “permitted

entrant” upon some clear and formal ministerial act. Section 9(4) expressly provides that

it is the declaration itself which “thereupon” results in the person ceasing to be a permitted

entrant. Mr. Guthrie for his part is quite unable to explain why otherwise section 9(4)

should provide for a declaration (which is required too by section 22(1)(f) - see paragraph

8 above). Were the powers under sections 9(5) and 15 to be exercisable without such a

declaration, indeed, there would be no point in ever making one.”

66. The Privy Council gave sound admonishment in Naidike that the liberty of the subject is not

to be interfered with save by the clear expression of the law.

Page 25 of 34

“[48] The governing principle is that a person's physical liberty should not be curtailed or

interfered with except under clear authority of law. As McCullough J succinctly put

it in R v Hallstrom, ex parte W (No. 2) [1986] QB 1090, 1104:

"There is ... a canon of construction that Parliament is presumed not to enact

legislation which interferes with the liberty of the subject without making it clear

that this was its intention."

[49] True it is, as the majority decision of the House of Lords in Wills v Bowley 1983 1

AC 57 illustrates, that there are limits to this presumption. The legislation there was

construed by the majority in such a way as not unduly to narrow the police's powers

of arrest. Proper consideration should be had to the maintenance of public order and

other aspects of the public interest and powers conferred by Parliament should not

lightly be rendered ineffective. The tension was well explained by Lord Wilberforce

in R v IRC ex parte Rossminster Ltd [1980] AC 952, 997-998:

"The courts have the duty to supervise, I would say critically, even jealously, the

legality of any purported exercise of these powers [powers of entry conferred on

the Revenue]. They are the guardians of the citizen's right to privacy. But they

must do this in the context of the times, i.e. of increasing Parliamentary

intervention, and of the modern power of judicial review. ... [W]hile the courts

may look critically at legislation which impairs the rights of citizens and should

resolve any doubt in interpretation in their favour, it is no part of their duty, or

power, to restrict or impede the working of legislation, even of unpopular

legislation; to do so would be to weaken rather than to advance the democratic

process."

[50] Nothing in the present case suggests that the public interest would be served or the

democratic process advanced by giving a wide rather than narrow interpretation to

Section 15. Quite the contrary: unless the immigrant's detention is required for an

Page 26 of 34

inquiry to be held forthwith or for his removal to be effected pursuant to a deportation

order already in force, there seems no sound reason for the power to be exercised.”5

67. The Defendants’ legal basis to issue supervision orders are circuitous and unsustainable.

Irrationality

68. The decision to issue such supervision orders without instituting deportation proceedings is

not only illegal but irrational. In Council of Civil Service Unions and others v The Minister

for Civil Service (1985) AC 374, Lord Diplock on addressing irrationality had this to say at

page 410:

“By "irrationality" I mean what can by now be succinctly referred to as "Wednesbury

unreasonableness" (Associated Provincial Picture Houses Ltd. v. Wednesbury

Corporation [1948] 1 K.B. 223). It applies to a decision which is so outrageous in its

defiance of logic or of accepted moral standards that no sensible person who had applied

his mind to the question to be decided could have arrived at it. Whether a decision falls

within this category is a question that judges by their training and experience should be

well equipped to answer…”

69. I have examined the affidavits of the Immigration Officers and they fail to properly address

the reason why supervision orders were issued. The reason they proffer defies logic. First, Ms.

Lydia Ram-Ramnanansingh simply sets out the roles of the immigration department and at

paragraph 10 deposes:

“On January 23rd 2017, the Claimants applied for another extension and the extension was

refused and an Order of Supervision was made. They were instructed to return to the

Immigration Department (Extensions) at 3-9 Richmond Street, Port of Spain on February

6th 2017 with tickets to return to their country. This time was further extended to February

20, 2017, for them to arrange their affairs and to return to the aforesaid Immigration

Department.”

70. It would seem that this immigration officer is under the impression that a supervision order

can be issued if an extension of time under section 9 (1) (c) is granted. They fail to say however,

whether the couple was detained in furtherance of a rejection order or a deportation order or to

5 Naidike and Ors v The Attorney General [2004] UKPC 49 paragraphs 48-50.

Page 27 of 34

convene a Special Inquiry. The affidavit of Hemwattee Samaroo6 also fails to shed light on the

rationale for the orders. At paragraphs 6, 7 and 8 she states:

“6. When an extension is refused a request is then made to have the applicant produce a

return ticket to his/her homeland. Based on the evidence that is presented to the

Immigration Officer, he/she then is guided by Section 17(1) of the Immigration Act

Chapter 18:01 to grant the individual conditional release pending his/her return ticket.

7. Conditional release is granted in the form of an order of supervision which has terms

and conditions attached to it. In the order of supervision the applicant is instructed as to

what date they are required to return, to whom they are to return and the reason he/she is

being placed on such an Order. The terms and conditions are explained to the subject and

he/she is ask to sign an acknowledgment that he understands the conditions of the said

Order. The original Order is then given to the subject and a duplicate kept for our records.

8. Failure to comply with the conditions of release then places the individual under a

Section 17(2) of the aforesaid Act. Such a subject would now be a person under the section

9(4) and such would no longer be a permitted entrant. Thus he can now be detained by the

lawful authorities without a warrant of arrest. He/she can then be detained pursuant to

Section 21(1) b pending the submission of a report to a Special Inquiry.”

71. It is clear the immigration department is of the view that when an extension is refused the

immigrant is to be deported by a process of (a) asking him to buy a ticket and (b) issue a

supervision order. This notwithstanding that no rejection order, deportation order or Special

Inquiry is to be convened. There is absolutely nothing in the legislation to point to such power

and such a decision is inconsistent with the deportation machinery prescribed by the

Immigration Act.

Passports

72. In the absence of an unequivocal statement from the immigration authorities as to whether the

couple is to be subject to deportation proceedings, there can legitimately be no basis to hold or

seize their passports. Interestingly, such an action raises a constitutional dimension.

6 Filed 4th August 2017.

Page 28 of 34

73. Clive Oliveira v The Attorney General, The Chief Immigration Officer Claim No.

ANUHCV2008-0449, on the issue of passports, Blenman J noted at paragraph 85:

“There are a number of authorities which were not provided to the Court, which indicate

that the unlawful deprivation of an interest in property is sufficient in law to trigger the

contravention of a person’s fundamental rights to his property as provided by provisions

which are similar to section 9 of the Constitution of Antigua and Barbuda.”

74. In R (on the application of Atapattu) v Secretary of State for the Home Department [2011]

EWHC 1388 (Admin), Mr. Stephen Morris QC noted:

[144] The court's finding at para 97 was in turn based on the Applicants' submissions at

para 90:

“a Russian citizen holding no passport is impaired in his rights to a degree

amounting to an interference with his private life. The law requires that a person

who wishes to find employment, receive free medical care, receive mail, marry,

vote, use notarial services, install a telephone line, save money when buying foreign

currency or travel by train or aeroplane must be able to produce a passport.

Furthermore, not having a passport is in itself an administrative offence.”

[145] It was the cumulative effect on this wide variety of aspects of the Applicant's life

which was held to constitute the interference with private life. The requirement for proof

of identity was “unusually” frequent in Russia. As regards impact upon ability to work,

this was one only of a number of effects of the deprivation of the passport, and in any event

it appeared to be the case that the internal passport was required to be able to do any work

whatsoever.

[149] Under the ECHR, there is no express right to work and there is no right to choose a

particular profession (Thlimmenos cited at para 46 Sidabras). In my judgment,

Sidabras was a case, where on the facts, the Applicants were wholly or very substantially

deprived of the ability to work altogether. Furthermore it involved other effects on private

life, going well beyond the ability to pursue one own particular chosen career, including

public embarrassment as being former KGB officers. (I note in passing that R (Countryside

Alliance) v A-G [2007] UKHL 52, [2008] 1 AC 719, [2008] 2 All ER 95 Lord Bingham

described Sidabras as a “very extreme case on the facts” and that the Applicants were

Page 29 of 34

“effectively deprived of the ability to work” altogether). The position in Smirnova was

even more extreme. The effect of retention of the passport not only precluded all work, but

affected almost every reach of daily life in Russia.”

75. There being no valid justification to issue a supervision order in this case, there was no reason

to seize the Claimants’ passports. The passports should be returned forthwith.

Damages

76. The Court of Appeal in Attorney General v Mukesh Maharaj Civ. App. No. 67 of 2011

observed that the Court is well within its discretion to grant monetary compensation in

instances where it deems equitable to do so. If the Court finds that monetary compensation is

the proper and just award, it can then award a single sum for damages. Bereaux J.A noted:

“[40]…There is no constitutional right to damages. See Lord Hope in Seepersad & Anor.

v. The Attorney General of Trinidad and Tobago (2004) 64 WIR 378. The court in its

constitutional jurisdiction is concerned to uphold or vindicate the constitutional right which

has been contravened. See Uric Merrick v The Attorney General & Ors., Civil Appeal No.

146 of 2009 (unreported) paragraph 57.

[41] “Vindication” of the right applies in both the widest and narrowest of senses. To the

extent that a compensatory award is granted in respect of the breach of the right and as

“recompense for the inconvenience and distress suffered during the illegal detention” (per

Maharaj v. The Attorney General (No. 2) (1978) 2 ALL ER 670), such an award is, in the

widest sense, a vindication of the right.”

77. In this case, the Claimants claim is entirely satisfied by a declaration that the supervision orders

are to be quashed. They are now, therefore, as consequence of such an order not at pain of

detention unless deportation proceedings are initiated against them. It is not for this Court to

so force the Defendants to so do. Indeed there are signs by the former Minister that his approach

to their residency was more facilitative than obstructionist. Declaratory reliefs are in my view

far more appropriate in this case to vindicate the couple’s rights and to preserve their status

quo. Moreover, there is no evidence to demonstrate loss, damage or inconvenience justifying

any award of damages.

Page 30 of 34

The minor children

78. Although not articulated in these proceedings, the Court must sound an alarm in relation to

attempted deportations which affect the rights of children. In this case Rashad, Omair and

Zubair are all citizens of Trinidad and Tobago and if their parents are deported it seriously

affects the family and the constitutional right to family life. From the evidence of the Claimants

their son Rashad attends Darul Uloom Trinidad and Tobago Ltd, their sons Omar and Zubair

attend Warrenville T.I.A Primary School and have been living here for fourteen (14) years. In

Naidike Lady Hale made it plain that the rights of the child are to be taken into account in

deportation matters. I set out the entirety of her observations on this matter and commended it

to the Defendants:

68. …In my view, it is important that the rights and interests of children are taken seriously

by all countries which are party to the United Nations Convention on the Rights of the

Child. It is all too easy to lose sight of those rights and interests in proceedings which are

mainly concerned with the rights and interests of adults…

71. Trinidad and Tobago is party to the 1989 United Nations Convention on the Rights of

the Child. Article 3.1 of the Convention requires that:

"In all actions concerning children, whether undertaken by public or private social

welfare institutions, courts of law, administrative authorities or legislative bodies, the

best interests of the child shall be a primary consideration."

72. The Convention itself has not been incorporated into the domestic law of Trinidad and

Tobago, although its spirit is reflected in numerous specific laws relating to children.

That is also the position in Australia and Nelson JA in the Court of Appeal drew

attention to the well-known decision of the High Court of Australia in Minister for

Immigration and Ethnic Affairs v Teoh (1994) 128 ALR 353. …

73. Gaudron J, at pp 375 to 376, reached the same conclusion but by a more direct route:

"What is significant is the status of the children as Australian citizens. Citizenship

involves more than obligations on the part of the individual to the community

constituting the body politic of which he or she is a member. It involved obligations

on the part of the body politic to the individual, especially if the individual is in a

Page 31 of 34

position of vulnerability. And there are particular obligations to the child citizen in

need of protection.

Quite apart from the Convention or its ratification, any reasonable person who

considered the matter would, in my view, assume that the best interests of the child

would be a primary consideration in all administrative decisions which directly

affect children as individuals and which have consequences for their future welfare.

Further, they would assume or expect that the interests of the child would be taken

into account in that way as a matter of course and without any need for the issue

to be raised with the decision-maker. They would make that assumption or have

that expectation because of the special vulnerability of children, particularly where

the break-up of the family unit is, or may be, involved, and because of their

expectation that a civilised society would be alert to its responsibilities to children

who are, or may be in need of protection."

74. Mr. Guthrie, for the Attorney General, quite rightly points out that the rights enshrined

in the United Nations Convention are not absolute rights. The children's interests may

have to give way to other more weighty considerations. Among these must be the right

of the state of Trinidad and Tobago to expel non-citizens who no longer have a right to

remain. Article 9 of the Convention draws a distinction between the compulsory

separation of a child from her parents, which must be subject to judicial review and

necessary in her best interests, and the separation of a parent from his child, for

example by detention, imprisonment, exile, deportation or death. But the High Court

of Australia was concerned with the procedural fairness of the decision. The children's

legitimate expectations did not give rise to a right to have their interests treated as the

paramount consideration at all times. They did give rise to an expectation that if their

interests were not to be treated as a primary consideration in a matter directly affecting

their welfare, then the family had to be warned and given an opportunity to make

representations.

75. If this is the position reached in Australia, where there is no constitutional guarantee

of the right to respect for private and family life, one would expect it also to be the

position in Trinidad and Tobago, where there is. 'Respect' brings with it an expectation

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that these matters will at least be taken into account by the decision-making state. It

does not lead to the conclusion that no foreign parent of a citizen child can ever be

deported. Lucky JA was understandably concerned that this could be subject to

"convenient abuse". But there is a substantial body of case law under the comparable

provision in article 8 of the European Convention on Human Rights, where the right of

the state to exclude or deport non-citizens conflicts with the right to respect for family

life with citizen family members who have the right to remain: see, for example the

discussion by Lord Bingham of Cornhill in R (Ullah) v Special Adjudicator; R (Do) v

Immigration Appeal Tribunal [2004] UKHL 26, [2004] 3 WLR 23 and by Baroness

Hale of Richmond in R (Razgar) v Secretary of State for the Home Department [2004]

UKHL 27, [2004] 3 WLR 58. The decision-maker has to balance the reason for the

expulsion against the impact upon the other family members, including any alternative

means of preserving family ties. The reason for deporting may be comparatively weak,

while the impact on the rest of the family, either of being left behind or of being forced

to leave their own country, may be severe. On the other hand, the reason for deporting

may be very strong, or it may be entirely reasonable to expect the other family members

to leave with the person deported.

76. It may very well be that if the decision-maker had properly considered those matters in

this case he would nevertheless have refused to renew the work permit and ordered the

deportation. Faith was a very little girl at the time. Her family life was with her father.

She cannot have established strong roots in the wider community. She had little or no

private life other than that with her family. The benefits to her of being brought up in

Trinidad and Tobago, rather than in Nigeria or wherever else her father could go,

might very well be insufficient to outweigh the legitimate state interest in deporting

him. Indeed, their deportation might have benefited her if it led to her being reunited

with her mother. On the other hand, on the material before the courts, it is not entirely

clear what was the state's interest in deporting Dr Naidike, who was employed as a

doctor in the state's own hospitals and had not, it would appear, given serious cause to

exclude him.

77. It is clear, however, that no such balancing exercise was at any time conducted in this

case. The consequences for Faith had the deportation order been put into effect might

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have been serious. However, as the deportation order was never put into effect and

Faith has remained throughout living with her father in the country of her birth, she

has not in fact suffered any damage as a result of the failure to take her interests into

account. To that extent the point is academic in her case. At this distance in time there

would be little point in making a declaration that her rights under section 4(c) had been

infringed, even if we were all of that view.

78. …Further, the requirements of law enforcement would ordinarily prevail over the

interests of the child. Whatever may be the position where longer term decisions such

as deportation or imprisonment are concerned, the police cannot normally be expected

to take account of the interests of a child when making a lawful arrest. Even if, as here,

the child is present and her needs are obvious, the immediate need to enforce the law

will take priority, provided that, as here, proper arrangements are made for the child's

care.”

79. I adopt the sentiments that the authorities must conduct a balancing exercise of the “best

interest” principle with the legitimate goals of deportation when deportations affect the rights

of children. The duty to protect and safeguard their interest can only be trumped by superior

legitimate aims of deportation.

Conclusion

80. In the circumstances the Court will make the following orders:

a) A declaration that the decision of the First Defendant to request the Claimants to report

to the Senior Immigration Office at the Piarco International Airport on the 30th day of

April 2017; to have them permanently depart Trinidad and Tobago; in the absence of a

declaration by the Second Defendant that the Claimants have become members of the

Prohibited Class of persons pursuant to Section 8(1) of the Immigration Act Chapter

18:01 and therefore ceased to be permitted entrants is illegal, irrational, and/or

procedurally improper.

b) A declaration that the order of supervision dated 22nd March 2017 and 21st April 2017

of the Claimants in the absence of a declaration by the Second Defendant that the

Claimants have ceased to be a permitted entrant is illegal and/or irrational and or

procedurally improper.

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c) A declaration that the First Defendant requesting, taking and currently having in their

possession the property of the Government of the Republic of India passports numbered

N8810734 and H7863653 are illegal, irrational, and/or procedurally improper.

d) An order of certiorari to remove into this Honourable Court and quash the said

decisions of the First Defendant.

e) An order of mandamus directing the Chief Immigration Officer to return passports

numbered N8810734 and H7863653 to the Claimants forthwith.

81. I have taken into account the fact that there was no pre-action letter issued by the Claimants in

determining the issue of costs. I have also taken into account the urgency required to file the

application for leave. The Defendants shall pay to the Claimants 75% of its costs of the claim

to be assessed in default of agreement.

Vasheist Kokaram

Judge