Jermaine Reid v The Attorney General and the Director of Immigration

• Jurisdiction: Turks and Caicos Islands
• Judge: Williams, J.
• Judgment Date: 06 May 2011
• Court: Supreme Court (Turks and Caicos)
• Docket Number: CL 67/10
• Date: 06 May 2011

Supreme Court

Williams, J.

CL 67/10

Jermaine Reid

and

The Attorney General and the Director of Immigration

Appearances:

For the applicant: Mr. Courtney Barnett.

For the respondents: Ms. Khalila Astwood-Dorsette.

Cases:

Minister of Education & Chief Immigration Officer v. Sharon Nettlefield & Beat Wild, Civil Appeal No. 6 of 2002 – R v. Governor of Durham Prison ex parte Hardial Singh [1984] 1 W.L.R. 704 – A v. Secretary for Home Department [2007] E.W.C.A. Civ. 804 – Lincoln Eatmon, Jerome Lee, John Leiba v. Hallmark Bank and Trust Limited, Olint TCI Corporation and Limited and David Smith CL 154/08 – Tan Te Lam v. Tai A Chau Detention Centre [1997] A.C. 97 – The Queen (On the application of Frederick Dogima Nukajam v. The Secretary of State for the Home Department – R (Nadarajah & Amirthanathan v. SSHD [2004] I.N.L.R. 139 – Clive Oliveria v. The Attorney General and the Chief Immigration Officer ECSC (Antigua and Barbuda) Claim ANUHCV 2008/0449 – King v. Inspector of Lehman Street Police Station ex parte Venicoff [1920] 3 K.B. 72 – R v. Governor of Brixton Prison ex parte Soblen [1963] 2 Q.B. 243 — England and Another v. Attorney General of St. Lucia (1985) 35 W.I.R. 171 (LC) – Musson v. Rodriguez [1953] A.C. 530 – Brandt v. Attorney General and Austin (1971) 17 W.I.R. 448 – Anisminic Ltd v. Foreign Compensation Comm [1969] 2 A.C. – Attorney-General (Bahamas) v. Thomas D'Arcy Ryan [1960] A.C. 718 – R v. Secretary of State for the Home Department ex p All-Fayed (No. 1) [1998] 1 W.L.R. 763 – Kila Wari v. Ramoi and Dibela [1986] P.N.G.L.R. 112 (20 May 1986)

Legislation:

Section 62(1)(c) of Immigration Ordinance of Turks & Caicos Islands – Order 53, rule 3(10) of CPR of Turks & Caicos Islands – Section 39(1)(b) of Immigration Ordinance of Turks & Caicos Islands – Section 42(1) of Immigration Ordinance of Turks & Caicos islands – Section 39, 42 and 43 of Immigration Ordinance of Turks & Caicos Islands – Section 62(2) of the Immigration Ordinance of Turks & Caicos Islands Section 63(4) of Immigration Ordinance of Turks & Caicos Islands – Article 25 Part II Turks and Caicos Islands Constitution Order, 2006 – European Convention on Human Rights – Articles 5 and 14(5)(b) – (c) of Turks and Caicos Constitution Order, 2006 – Section 69 of the Immigration Ordinance of Turks & Caicos Islands – Section 4(3)(b) of the Immigration Ordinance of St. Lucia – Section 15(3) of Immigration Act, 1971 of England and Wales

Immigration - Judicial review of a decision to deport the applicant — Work permit — Expulsion case of non belongers — Whether the Director if Immigration erred in determining that the applicant's presence in the Islands was undesirable and not conducive to the public good where having considered that the applicant had deliberately went into hiding — Whether the periods were lawful and were for a reasonable time when the applicant had deliberately went into hiding and had been detained while his deportation was pending — Whether the Governor's decision to deport the applicants without reasons is an executive power which cannot be enquired into where the Governor did not make the deportation order pursuant to section 62(1)(d) of the Immigration Ordinance but had made the decision pursuant to the expressed reasoning of the Director of Immigration — Whether the Director acted in contravention of the principles of natural justice where the applicant had not been given an opportunity to be heard — Finding that the Court was entitled to draw a distinction between the exercise of the Governor's discretion and recommendation upon which the directions was based — Finding that the Director and Governor were bound by rules of natural justice and the principles of natural justice was violated as the applicant should have been given an opportunity to answer the case against him — Deportation order quashed.

Williams, J.

APPLICATION

1 By Notice of Motion dated 28th June 2010 the applicant, Jermaine Reid, seeks judicial review of a decision of H.E the Governor of the Turks & Caicos Islands to deport him from the Islands for reasons provided for in Section 62(1)(c) Immigration Ordinance, namely that his presence in the Islands would in the opinion of the Director of Immigration be undesirable and not conducive to the public good.

2 The applicant asks the Court to consider granting the following relief:

• 2.1. “A declaration to the degree, if any, to which the European Convention on Human Rights is applicable to the Turks and Caicos Islands, or any other Treaty under international Law, pertaining to and bearing upon the protection of the rights of persons detained in police and immigration custody in the Turks and Caicos Islands.”

• 2.2. “A declaration upon the evidence and certain assertions made in the Deportation Order, as to the basis upon which the assertion that the applicant is undesirable and that his presence is not conducive to the public good is accurate and is substantiated upon any legitimate basis for his deportation, as so factually established by the Director of Immigration before invoking the provisions of Section 62 of the Immigration Ordinance.”

• 2.3 “A declaration as to whether or not adequate reasons had been given as at the 3rd April 2010 to His Excellency Governor Gordon Wetherell, at the material time when the Deportation Order was signed.”

• 2.4 “A declaration as to whether it would be lawful and/or appropriate, in the circumstances, to permit prolonged detention of the applicant for that the reasonableness of the period during which detention is to remain lawful, bears reference to issues of related matters of fact and law, and thus what in law and policy is the permitted basis of detention in police and/or immigration custody for this applicant in particular, and as a matter of law for any detained person in point of law, as an issue of general public importance under the laws of the Turks and Caicos Islands.”

• 2.5 “A declaration as to whether or not the decision to have deported the applicant, in the circumstances of his particular situation, had in any way, been arrived at by the Director of Immigration, in breach of any rule of natural justice, or on the 27th May, 2010 in contravention of any existing order of the Court.”

• 2.6 “An order that the applicant be released from police and immigration custody pending determination of the present actions brought by him in the Courts of the Turks and Caicos Islands, upon such terms for release as are deemed fair, in accordance with law, and the overall respect for the applicant's rights in the circumstances of this application (i.e. Judicial Review if granted operates as a stay O. 53, r. 3(10) — and — 53/1 — 14/27) and/or such terms of bail be granted to permit the liberty of the applicant pending final determination of his Court actions, relative to the establishing of a lawful basis upon which arrest, detention and imprisonment was effected.

• 2.7 “An order of certiorari quashing the Deportation Order dated 3rd April, 2010.”

• 2.8 “Damages, awards, compensation and such monetary sums in all the circumstances as shall be just.”

BACKGROUND

3 Unfortunately, due to the highly unusual way that this matter has progressed and due to the conduct of the parties, a review of the background in greater detail than normal is required.

4 Jermaine Reid is a Jamaican national. Mr. Reid has no lawful immigration status in the jurisdiction. Mr. Reid's last work permit expired on 6th March 2006.

5 Mr. Reid is a man of good character, having no previous convictions in this jurisdiction. There is no information before the Court that he has any convictions elsewhere. Although there is evidence concerning an acquittal for serious criminal charges and the lack of Reid's status before this Court, the respondents have not sought to produce any particularised evidence of Reid's conduct to support a contention that his presence in the Islands would not be conducive to the good.

6 Mr. Reid is a married man, but his wife and young child live in Jamaica. Despite his marital status he appears to have on occasion resided with a woman, apparently his girlfriend, in this jurisdiction. Reid is clearly not married to a Belonger and he has no significant family ties or assets in these Islands.

7 In 2006 Mr. Reid was charged, along with others, with various very serious offences including burglary, robbery and indecent assault. [Case number CR 50/2006] He appealed his conviction and twenty year sentence of 16th November 2007, and the Court of Appeal ordered a re-trial. He was acquitted at the re-trial before Chief Justice Ward on 10th March 2010.

8 Mr. Reid came to TCI on 20th January 2003. Mr. Reid entered the Turks and Caicos Islands (“TCI”) lawfully and he obtained a work permit as a labourer in the employment of “Jack Cole-GDT”. The fee for such a permit was $1,000. That initial permit expired on 6th March 2004. Mr. Reid contends that in 2004 he applied for a police report to enable him to apply for a renewal of his work permit, but the police were obstructive and refused to give him the same. It was only after the intervention of the then Commissioner of Police, who noted that Mr. Reid had no convictions, that on his instructions a police report was obtained. Regular renewal applications were made and on 3g1 August 2005 Mr. Reid was given a final extension until 6th March 2006. The entry “This is your final extension” was marked on the face of his work permit in August 2005. The face of the said permit showed him as being a labourer employed by “Jack Cole-GDT.” Interestingly Mr. Reid said in his affidavit sworn on 16th March 2010 that in April 2005 he was employed by Tropical Shipping. Mr. Reid stated that the Police and Immigration Officers had told him at that time that if he returned to work for Tropical Shipping that he would be arrested. There is nothing before the Court to say whether this was because...