The right to enter one’s own country

Roshan Ramcharitar

The Government’s decision to shut the country’s borders in the face of the covid19 pandemic has raised the important issue of the duty of a State to its citizens, in particular the right of re-entry to one’s own country. The decision has left many citizens who were abroad on March 23, unable to return to their homeland until at least April 30, unless the State, in its discretion, permits entry.

Is there a right to enter a country of which you are a citizen?

Section 4 (1) of TT’s Immigration Act Chap. 18:01 states clearly and without qualification: “A citizen of Trinidad and Tobago has the right to be admitted into Trinidad and Tobago.” No other provision in the Immigration Act restricts this entitlement nor gives any functionary the power to do so.

This right of entry, however, is an element of the constitutional right to freedom of movement protected under section 4 (g) of our Constitution. What is the scope or content of this right? As with other constitutional rights, the right is stated in broad and general terms in the Constitution. Our courts have regarded the right of freedom of movement as a component of the wider concept of the liberty of the individual and to include the right to travel within, reside in and leave Trinidad and Tobago (see Ferguson and Galbaransingh v AG).

The Jamaican Constitution details the right expressly in its Charter of Fundamental Rights and Freedoms as the right (i) of every citizen of Jamaica to enter Jamaica; and (ii) of every person lawfully in Jamaica, to move around freely throughout Jamaica, to reside in any part of Jamaica and to leave Jamaica. Section 6(1) of the Canadian Charter of Fundamental Rights and Freedoms also sets out the right to enter, remain in and leave Canada.

Is the right to enter a country of which you are a citizen, therefore, an absolute one? When viewed as part of the constitutional right of freedom of movement, none of the rights contained in sections 4 and 5 of the Constitution can be considered absolute in the pure sense of the word. In the language of the courts, they can be limited by general legislation, provided that the limitation pursues a legitimate aim and is proportionate to it: see the case of Suratt v Attorney General.

Legislation passed by a special majority and expressly stated to be inconsistent with sections 4 and 5 of the Constitution has effect unless it is shown not to be reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual. Simply put, reasonable restrictions may be placed on constitutional rights, which are required for the good governance of a modern democratic society.

Regarding a citizen’s right to enter, the UN Human Rights Committee has stated that in no case may a person be arbitrarily deprived of the right to enter his or her own country, and that there are few, if any, circumstances in which deprivation of the right to enter a person’s own country could be considered reasonable.

Arguably, a distinction may be drawn between the government’s power to suspend commercial flights/ close its borders as opposed to denying a particular citizen or person the right of entry. Article 4 of the International Covenant on Civil and Political Rights, to which Trinidad and Tobago is a party, provides that countries may take measures derogating from certain of their obligations under the Covenant, including the right to freedom of movement ‘in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed’. This brings into sharp focus the legitimacy of government’s restriction of the right of entry to its citizens by way of the closure of the country’s borders in the absence of a declared public emergency for which the Constitution provides.

This aside, restrictions to freedom of movement on the ground of public health, national security or otherwise must be necessary and proportionate, and the least drastic means of achieving the desired result.

This issue of a citizen’s right of entry as a component of the right to freedom of movement is, therefore, ripe to be tested. How the courts will define the scope and reasonable restrictions on this right will be interesting. Among the factors to be weighed in the context of this global health crisis will most certainly be the duty of the State to protect its citizens both within and outside its borders.

The author is an attorney-at-law/ tutor at the Legal Aid Clinic, Hugh Wooding Law School.