The free movement question
Freedom of movement is one of the pillars of the multi-pronged regional project. Article 45 of the Treaty of Chaguaramas establishing the CARICOM Single Market and Economy states, “Member States commit to the goal of freedom of movement of their nationals within the community.”
The right is buttressed by the decision of the Conference of Heads of Government of the Caribbean Community taken at their Twenty-Eighth Meeting which states, “The Conference 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.”
Of course, this right must be balanced with the ability of states to uphold the tenets of individual immigration legislation at the individual country level. This commitment has been a fraught issue from the conception, and has continued to present challenges as states seemingly but bafflingly have grave difficulties effecting a balance between national law and the regional commitment.
Despite utterances about ill treatment of CARICOM nationals at ports of entry across the region for some time before the treaty came into force, Shanique Myrie of Jamaica became the first citizen to challenge a state on the right.
On March 14, 2011, Shanique Myrie arrived at the Grantley Adams International Airport in Barbados and was denied entry into the country. She was detained overnight in a cell in the airport and deported to Jamaica the following day.
There were several allegations made, chief among which, was a denial of entry in contravention of the aforementioned provisions. Myrie’s allegations led to a precedent-setting decision by the region’s highest court and thus the most substantive interpretation of the right of CARICOM citizens to move freely.
On the question of the denial of entry, the Caribbean Court of Justice held that there are two grounds on which a state can deny a CARICOM national entry, namely public undesirability and insufficient funds.
Undesirability, in keeping with Article 226 1 (a) and ( b), states that nothing in this Chapter shall be construed as preventing the adoption or enforcement by any Member State of measures: (a) to protect public morals or to maintain public order and safety; (b) to protect human, animal or plant life or health;
This was defined by the court as “concerned with such matters as the protection of public morals, the maintenance of public order and safety and the protection of life and health”. This ground is further limited by the whether the individual poses a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.
As such, the CCJ indicated that that for which the person is considered undesirable, must be prohibited by nationals and must be something for which citizens are routinely held liable and face sanction.
The court went further and dismissed the fact that the person may not be a bona fide visitor or intends to stay with someone of good repute as grounds to deny entry.
Insufficiency of funds as a denial of entry was more narrowly interpreted by the court than the preceding ground. A number of practical considerations contribute to determining whether there is a sufficiency of funds. Immigration officers are allowed to access whether the national has sufficient funds for the duration of the intended stay.
The court underscored the point that the national does not have to have enough money for the six month period that they are automatically allowed but the actual period they intend to stay in the country.
Factors which contribute to the said assessment are whether the national is in possession of a credit card or intends to stay with relatives or in commercial accommodation, both of which would presumably reduce the amount of cash necessary for their intended stay.
It has also been posited that evidence of some medical condition for which the community national needs urgent care, also not outlined by the court, may also come into consideration. However, because of the limited way in which the restriction was articulated, the use of such would be limited to exceptional circumstances.
Despite the CCJ decision, however, allegations of mistreatment of CARICOM nationals continue. Barbados border officials were again under the microscope recently as two Jamaicans and one Guyanese complained of bad treatment at the airport.
As of yet, it does not appear that these most recent incidences will lead to legal action. However, these allegations are serious and troubling because, on the face of it, they indicate a country and a region that have not learned from the Myrie saga. Thus, compromises to regionalism as a practical reality will remain.
St Vincent and the Grenadines’ Prime Minister Dr Ralph Gonsalves’ recent suggestion that immigration officers need to follow the law is correct, but are we not now presented with a situation where we need to develop guidelines for treatment that go beyond the law? These guidelines should include the specifics of the detention areas, the intervals at which detainees are to be fed, checked on, and the like, since the basics of humanity are clearly not enough in guiding behaviour.
Evidence of not having learned from the Myrie experience was on full display when the Barbados Ministry of Defence and Security, in defending the practices of immigration officials in the instance involving Sonya King, a Jamaican woman whose claims of ill treatment could not be substantiated, indicated that it was a legal requirement for a CARICOM national to present a return ticket and proof of status in the country from which they came in order to be granted entry.
This criterion is incongruent with the two grounds for denial of entry laid down in the Myrie case explained earlier. Barbados or any other country which is impeding freedom of movement, whether intentionally or not, needs to get it right and fast. Perhaps, it is indicative of long harboured prejudices against other members of the regional community or a lack of buy-in by average citizens across the region into our regional project.
Whatever the reason, it is a compromise to the utility of one of too few functioning components of the CSME. Even though stories of these prejudices have existed in the region before Myrie and well before Brexit, it is hard not to conflate some of this alleged isolationist behaviour to the extreme nationalism that is so much a part of contemporary political rhetoric from the United Kingdom to the United States presidential campaign.
It is necessary to get the freedom of movement right in a moment defined by the aforementioned rhetoric as countries, many of them our trading and strategic partners, appear to inch away from the liberal ideals of globalization which were held to be the ultimate goal.
The credibility of the regional project is at stake if we do not get this one of its most fundamental tenets right. We risk not properly effecting a host of other provisions and not realizing the benefits of true regionalism at a time when we most need it.
(Andwele Boyce is a young communicator who is passionate about politics and popular culture.
He holds a Masters in international trade.)