Freedom of movement application fails at CCJ

Justice Adrian Saunders
Justice Adrian Saunders

CARICOM citizens have important rights but to exercise these rights, clear documentary evidence of their nationality is required.

That was the ruling of the Caribbean Court of Justice (CCJ) in a claim by David Bain, a Grenadian, who alleged his right to freedom of movement was infringed when he was refused entry into TT on December 14, 2017.

Bain, who is also a US citizen, claimed he presented his US passport to immigration officials on arrival from Grenada, but was refused entry after he was questioned about information they had received about a man with the same name who had convictions on drug-related offences. Bain denied having any drug convictions and said he also presented his Grenada driver’s licence and his voter’s identification card, but was still detained overnight and sent back to Grenada the next day.

Bain argued at the CCJ that because he was a Grenadian citizen, he was entitled to freedom of movement in Caricom states.

He said the documents he presented, including his US passport which said he was born in Grenada, should have been enough to invoke his right to freedom of movement.

In its judgement, the court determined that while there was no doubt Bain was a Grenadian, he did not present sufficient documentation to prove it to the immigration officers.

“The presentation of the Grenadian driver’s licence and voter’s identification card was not sufficient,” the judges held.

They added that unlike the Grenadian passport, neither document was meant to serve as evidence of citizenship, nor were they machine-readable or designed to be stamped by immigration officials.

The court also rejected the argument that the notation in Bain’s US passport that he was born in Grenada, conclusively proved citizenship as the judges said it was possible that he could have renounced his citizenship or have it stripped way by the Grenandian government. According to the CCJ, mere birth in a country does not always automatically evidence citizenship.

In considering whether Bain waived his right to free movement, as a national of Grenada, when he presented his US passport, the court noted that if someone with dual citizenship exercised their rights attached to one nationality, it does not eliminate their other nationality and the rights attached to that citizenship.

However, they held that if Bain was denied entry based on his US passport, he could still claim his rights under the Revised Treaty of Chaguaramas, if he could also prove that he is a Grenadian citizen, but concluded that the documents he did present did not conclusively establish his Grenadian nationality.

According to Caricom, in submissions to the court, the appropriate travel document to invoke the right of freedom of movement is the Caricom passport or a passport issued by a Caricom member state.

In the judgement, the court emphasised that the “onus lies upon an intended entrant into a Caricom member state to establish that he or she is a national of such a state with the right to freedom of movement”.

The CCJ dismissed Bain’s claims against TT and ordered all parties to bear their own costs.

The appeal was presided over by CCJ president Justice Adrian Saunders and included Justices David Hayton, Jacob Wit, Winston Anderson, and Andrew Burgess.

Attorneys Patrick Superville, Ruggles Ferguson and Ferron Lowe represented Bain while TT was represented by attorneys Rishi Dass, Sean Julien and Sasha Sukhram.

Grenada was represented by attorney Adebayo Olowu, and Dr Corlita Babb-Schaefer and Sandra Bart appeared for Caricom.

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