Judge orders minister: Reconsider UK man's residency application

A UK national living in Trinidad and Tobago since 2005 has been successful in his challenge against his deportation.

National Security Minister Fitzgerald Hinds was also ordered to return Geza Hisef Szanto’s passport, which was confiscated when he was arrested on May 11, 2023, while at the Immigration Division.

Justice Margaret Mohammed also quashed the deportation order and ordered the minister to reconsider Szanto’s application for permanent residency.

He was represented by attorney Jose Young.

In his lawsuit, Szanto said he entered TT on a work permit. His permit was subsequently renewed and he received three extensions to extend his stay in TT. He is a project manager for a local construction firm.

In 2011, he married a Trinidadian.

In 2014, Szanto applied for permanent residency. He said his deportation order was based on a conviction in the UK in 2002 for possession of 0.3 grammes of cocaine and he was fined £50.

Szanto did not initially disclose his conviction when applying for his work permits or earlier residency application, but did so for the first time in 2013.

A certificate of character from the UK showed Szanto had three other convictions, for driving under the influence of alcohol, driving although his licence had been disqualified for 18 months and using an uninsured vehicle.

In 2018, he was told to attend an interview about his residency.

The interview was rescheduled at least four times for various reasons. However, he continued to receive extensions of stay, the last until July 2022.

In February 2022, the acting assistant chief immigration officer (North) received legal advice that Szanto's convictions put him in the class of prohibited persons under the Immigration Act.

The minister was then asked to exercise his authority to order Szanto’s deportation. This was done on the day the minister received the note from the Immigration Division.

Szanto was told to attend a meeting at the division’s offices on May 11, 2023, when the ministerial warrant was executed and he was served with the deportation order.

He was put on an order of supervision and told to return on May 18, 2023, with a ticket to return to the UK. He did so and was put on a further order of supervision until June 8, when he was booked to travel.

He filed his lawsuit and the High Court stayed his deportation on June 8, 2023.

Szanto’s attorney argued that the decision to issue the deportation order based on his prior convictions was unreasonable, as he was not allowed to defend himself before the decision was made.

However, attorneys for the minister maintained the decision was not perverse and was within the range of a reasonable decision, since Szanto failed to disclose his convictions on several occasions. They also argued there was no breach of the natural-justice principles, since there was no duty on the minister to allow Szanto to be heard before making the decision.

In her ruling, Mohammed said although through being married to a Trinidadian, he was qualified to apply for residency, the minister was still qualified to determine his suitability, having permitted him to enter TT, but was obliged to reconsider whether Szanto fell into the category of prohibited persons under the act.

She said by 2018 when immigration officers were dealing with Szanto’s second residency application, they were aware of his convictions.

However, she noted that, at the time, was Szanto told he might fall within that class.

“I accept that there is no statutory duty placed on the defendant under the Immigration Act to inform the claimant that based on his conviction for cocaine, he may fall within the prohibited class of persons and to give him an opportunity to put forward his case before a decision is made.

“However, there was a common-law duty on the defendant as a public officer to act fairly, which includes giving a person the opportunity to be heard prior to making the said decision, as the consequences had a significant impact on the claimant’s family life, job and ties to the community, as he has been residing and working in Trinidad and Tobago since 2005.”

She added, “Instead of informing the claimant of this material fact the defendant granted him several extensions of stay from September 28, 2019, to July 17, 2022.

“The defendant also granted the claimant extensions for his landing certificate/ change of status until July 16, 2022.”

Mohammed said it was immaterial whether Szanto failed to disclose his cocaine conviction in his first residency application, as he did so for the second and provided the UK certificate of character.

“As a consequence, the procedure used by the defendant prior to making the said decision was flawed as the claimant was not given the opportunity to make representations prior to the said decision being made...

“He was limited to only the facts which were put before him by the immigration officers.”

She added, “There was no evidence in the Hinds affidavit that the defendant considered other factors such as (that) the claimant has not breached any laws in this country since he has been living here, he had attended all interviews conducted with the Immigration Department, (and) he was given several extensions for his landing certificate/change of status after the immigration officers became aware of the UK police certificate of character and the claimant’s ties to the community.”

She held the minister’s decision was unfair.

Mohammed also noted that while a court should always seek to uphold the rule of law, protect constitutional rights and reinforce principles of administrative justice, “judicial deference” was not “being subservient to the Executive or Legislature or decision-makers or show(ing) blind reverence to their interpretations or superficially conduct(ing) a rationality review.”

She said it meant exercising restraint and respecting the limits and boundaries of judicial power.

“It is also settled law that a public officer has a duty to act fairly when he is making a decision.

“In order to act fairly, a decision-maker has a duty to give a person an opportunity to be heard prior to making a decision in particular where there are grave consequences for the person...

“As the duty to act fairly imposes obligations on decision-makers, when courts consider the requirements of fairness in a particular case they are primarily concerned with the actions or omissions of the decision-maker and they are not usually concerned with the unfairness arising out of the actions or omissions of others.”

In his lawsuit, Szanto said his conviction was the result of a lapse in judgment, but he had been making every effort to ensure it was not repeated, and had worked to rebuild his life and upheld the law.

The minister was represented by Nicol Yee Fung, Zara Smith, Chantelle Legal and Justay Guerra.