Myrie, no threat
The judgment also dismissed Barbados’ contention that Myrie was denied entry because she was an undesirable and a charge on public funds.
The justices argued that while such a entitlement must be construed as an exception to the right of entry, the scope of refusal and grounds on which it is based must be interpreted narrowly and strictly and the burden of proof had to rest on the member state that seeks to invoke either ground.
“The concept of undesirability must be concerned with the protection of public morals, the maintenance of public order and safety and the protection of life and health,” insisted the judges.
They ruled that while CARICOM states had some discretion when invoking this exception, the scope of the concept of “undesirable persons” was subject to control by the major Community organs, particularly the Head Of Government Conference and ultimately the CCJ as the guardian of the Revised Treaty Of Chaguaramas.
”Refusal on the basis of undesirability must be based on national law and on Community law, but where the former is inconsitent with Community law, the latter must prevail,” submitted the region’s final court of appeal.
Barbados’ claim that Myrie was denied entry because she lied to Immigration officials as to the identity of her host in this country was also rejected. The court also provided general guidelines on how a member state may limit a visiting national’s right of entry on the ground of the visitor being a person likely to become a “charge on public funds”.
”The court held that in order for a member state to limit the right of entry of a national of another member state in the interests of public morals, national security and safety, and national health, the visiting national must present a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.
“The threat posed,” the judicial officers added, ”should, at the very least, be one to do something prohibited by national law. The national must pose a threat to do something prohibited by national law.”
The court held that the principle of proportionality was also relevant to the application of Community law.
”However, the appellate court dismissed Myrie’s claim that Barbados discriminated against her and that she was treated differently only because she is a Jamaican national. In ruling on this country’s position that Myrie was also denied entry because she lied to Immigration officials about the identity of her hosts here, the CCJ found that in this case, Barbados did not justify the limitation placed on the Jamaican woman’s right of entry, in that it did not produce sufficient evidence to establish that she posed a threat as to be deemed undesirable.
The tribunal said Barbados did not establish the woman’s untruthfulness on her replies to questions from Immigration officials. In reinforcing guidelines as to how CARICOM nationals should be treated, the court ruled that under the right of “definite entry” conferered by the 2007 Conference decision, all Caribbean citizens were entitled to have unrestricted access to, and movement within member states, subject to public interest considerations.
“The 2007 Conference Decision was another step in furthering the fundamental goal and clarifying the right of free movement, as it made clear that every Community national was entitled to a “definite entry” of six months upon arrival in another Member State.
“The court held that where a Community national is refused entry into a Member State on a legitimate ground, that national should be given the opportunity to consult an attorney at law or a consular official of his or her country, or to contact a family member. It said that the principle of accountability required Member States to give, promptly and in writing, reasons for refusing entry to a Community national.
“The receiving state is also obliged to inform the refused Community national of his, or her right to challenge the decision. In this regard, the court indicated that it expects Barbados to interpret and apply its domestic laws liberally, so as to harmonise them with Community law, or, if not possible, to alter them,” the judges ruled.