Judge orders Hinds to reconsider Pakistani woman's residency application

A HIGH COURT judge has ordered the Minister of National Security to reconsider a Pakistani woman’s permanent residency application made more than a decade ago.

Justice Devindra Rampersad also ordered the Chief Immigration Officer to reconsider the woman and her husband’s appeal of a 2020 deportation order against them.

After granting several declarations in favour of the couple, the judge made the orders.

He declared the decision of the CIO to recommend to the minister that the woman be denied permanent residence was unfair given the length of time since she applied and had a child born in TT at the time.

Due to the nature of the woman's entry into Trinidad and Tobago, Newsday has decided not to publish her name.

The judge also declared that the minister’s decision to deem the woman's permanent residency application unsuccessful was contrary to the rules of natural justice, procedurally unfair and that he exercised his power “in a manner so unreasonable and/or irrational and/or procedurally irregular that no reasonable minister would have done so.”

Rampersad held the minister also failed to pay attention to the interests and the needs of the family’s two children, born in TT in 2019 and 2023, and did not give sufficient consideration to the hardship a return to Pakistan may cause them.

As part of his order, Rampersad directed that his ruling and the file be served on the Children’s Authority to appoint a child advocate to oversee the children’s interests at the appeal of the deportation orders against their parents and their mother’s permanent residency application to advocate on any possible breach of their rights if they were to be relocated to Pakistan and if it is in their best interests in terms of education and education, among others.

The minister’s reconsideration is also to be done after he hears from the child advocates.

“Although minors, the children, who are citizens of Trinidad and Tobago by birth, have rights which they may not be able to exercise if they are deported to Pakistan…For instance, they will lose the advantage of growing up and being educated in ‘their own country, their own culture and their own language.

The court has particular concerns about the rights of the children to access to education and health care.

“Moreover, the children, who are Trinidadian citizens, ought not to be blamed for their parent's shortcomings as it relates to their immigration delay and deficiencies.

“The parents have also not posed any threat to national security or public safety throughout the years of them living in the country.”

“In this case, the court does not have all of the information before it with respect to the desirability of these children growing up in another country that is not their own by birth.

“Those are matters, in any event, that have to be considered by the decision-maker and not by the court.

“There is no evidence that the decision-maker – ie the second respondent – even considered these matters and they are obviously matters of grave concern especially in relation to the constitutional rights of these children.”

According to the facts of the case, the woman came to TT in 2010 and was given permission to stay for three months. The judge said from the facts, she was brought to TT in a “quasi-human trafficking scheme” to have her work for a businessman and his family under restricted rights and conditions.

According to her, she came with her sister and they were treated like servants and kept in a home at Valsayn like prisoners. She and her sister escaped and sought to regularise their status since they had long overstayed their time. In 2012, they were given the option to voluntarily leave to re-enter which was done. They received a waiver and they applied for permanent residency.

The applicant went to Pakistan in 2018, got married and returned to TT. She became pregnant and developed complications which prevented her from reporting to the immigration division. In 2015, she received a waiver from the then-minister to receive extensions until her residency application was determined.

However, in 2019, when she applied for a passport for her son, she was detained and told she had overstayed her time. Her husband was detained in 2020. Special inquiries were held and their appeals were dismissed with deportation orders being issued by the minister. In March 2023, the woman was told her residency application was denied.

The judge said he was not convinced the decision-makers considered all of the relevant documents in arriving at their decisions, in particular the 2015 waiver from the then-minister.

“Further, the court has not had any explanation from the second respondent as to what weight or impact he placed or was placed on the fact of the applicants’ allegation that they had no secure place to return to in Pakistan and they had a child at the time when the application was still pending who is a Trinidadian citizen.

“The court has no understanding as to what weight the minister placed on the suite of authorities in relation to the rights of the child, if at all.

“This court cannot presuppose the application of all of these considerations and cannot assume what the second respondent considered in relation to the rights of the child and the local and international treatise on the same.

“In this court’s respectful view, there is a strong odour of unfairness towards the first applicant and, by extension, the second applicant who relies upon the first for his status within this jurisdiction based on their marital status.”

He was also critical of the failure of the State to provide “full and frank disclosure” of the decision-making process, deeming it a “serious dereliction of duty.”

“Therefore, the court has come to the inescapable conclusion that the process in relation to the first applicant, and by extension the second applicant, was unfair and contrary to the principles of natural justice and good administrative law.”

The couple was represented by attorneys Nafeesa Mohammed who was instructed by Gabriel Glanville of the firm Quantum Legal. Representing the State were Rachael Jacob, Makeda Brown-Alfred instructed by Lianne Thomas and Melissa Papoonsingh.