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Dr Christopher Oura

At the height of the global pandemic, approximately 91 per cent of countries had border closures, according to the US-based, Pew Research Centre. Entering 2021, T&T remains one of three Caribbean territories whose borders remain closed–the others being Monsteratt and the Cayman Islands.

Closed since March 23, the Government maintains that the border closure is an important tool in controlling the spread of COVID-19, in turn, limiting the chances of the healthcare system becoming overwhelmed.

While there have been calls by some for the borders to be reopened, virologist Dr Cristopher Oura, in an interview with Guardian Media last Tuesday, supported the State’s decision to keep it closed for now because reopening “would put at risk, citizens in T&T, because a percentage, maybe a significant percentage of the people, would bring the virus back with them.”

With the borders shut, T&T’s exemption policy, the only avenue for nationals to enter the country, has been steeped in controversy, with criticism from some quarters about its functionality.

As of December 23, more than 7,000 people were still awaiting exemptions to enter T&T, and while a significant number of those applications come from nationals residing outside of the country, some are from T&T residents stuck abroad.

In light of increased criticism and claims of preferential treatment, National Security Minister Stuart Young announced that changes to the process will be made in the coming weeks, but Prime Minister Dr Keith Rowley warned that everyone will not be pleased with what’s to come.

For differing reasons, the governments of other Caribbean islands have opted to open its borders, implementing systems much different to T&T’s.

With their borders opened, their citizens, residents and non-residents based abroad are allowed back in, once they meet the standard requirements established.

For example, Barbados, a popular destination for T&T nationals seeking to come home, has no entry restrictions but requires visitors from high-risk countries to present a negative PCR COVID-19 test no older than 72-hours old upon arrival. They are then required to quarantine until they produce a second negative test for a test taken five days after arrival.

Visitors from medium-risk countries must also arrive with negative tests, and are subject to daily health monitoring for seven days.

People from low-risk countries are expected to present a negative test no older than five days. If they don’t arrive with one, they are required to take one at the airport.

Following an increase in cases, however, on January 2, Barbados introduced a curfew that will remain in place until at least January 9. Among the changes–activities between 9 pm to 5 am will be banned, while commercial cruises, banquettes, fetes and limes are prohibited.

There were no changes to international travel requirements, however.

Jamaica, meanwhile, only requires a negative COVID-19 PCR or antigen test from citizens 12 years of age and older from the United States, Brazil, Dominican Republic, Mexico, and Panama.

There are no requirements for nationals entering from other countries.

Comparing the three Caribbean countries, approximately 0.44 per cent of Jamaica’s population was confirmed to have contracted COVID-19 so far, Barbados–0.14 per cent, and Trinidad–0.51 per cent.

Lawyers weigh in on exemption challenges

But with T&T nationals still requiring an exemption to return home, an increasing number of stranded nationals are threatening legal action against the State.

Several stranded nationals told Guardian Media that they are doing so because they feel as though they have no other option given lengthy delays, while some nationals who were granted exemptions believed that lawyer letters aided their attempts to come home.

According to one Trinidad-based attorney representing several stranded nationals, he is preparing to file pre-action protocol letters, warning that if his clients are not granted entry, they will be seeking judicial review of the exemption process and will challenge the constitutionality of the border closure.

Several other attorneys have issued pre-action protocol letters on behalf of their clients.

The attorneys, representing stranded nationals, claim that the constitutional rights of their clients are being denied, pointing to two sections in Chapter One of the Constitution.

The first right being infringed, they claim, is Chapter One Section Four (G) of the Constitution, which summarily states that all nationals without discrimination by reason of race, origin, colour, religion or sex, are granted the fundamental human right of freedom of movement.

Under this section, they claim, the Government’s delay in granting them entry into their own country is unconstitutional.

So, do stranded nationals have a solid case against the State based on the right to freedom of movement?

No, according to attorney Martin George.

“I see absolutely no basis whatsoever for a constitutional challenge on those grounds. Because freedom of movement has to pertain to your freedom of movement within the borders of T&T,” he said.

Acknowledging that the law is fluid and dynamic, he said while people are within their right to probe and test laws, he sees this legal claim as far-fetched.

While the well-being of some citizens is affected by the border closure, the courts will likely rule that it is in the best interest of the majority of citizens, given that there is an ongoing pandemic, he said.

“I sympathise and acknowledge that there is a human element to the scenario because you cannot discredit that some people are suffering and will not be able to return to the country, but you also have to balance that with the question of the responsibility of the Cabinet,” George said

Senior Counsel Israel Khan agreed with George that freedom of movement was not an absolute right.

“The Government would say there’s a pandemic and we are restricting your rights. It’s just like you have a right to freedom of expression, but you can’t go on the road and cuss. That would be a use of obscene language,” Khan said.

And under section 75 of the Constitution, he said, the Cabinet is given the overall direction of the governance of the country.

For a court to overrule the Government’s decision to close the borders, he said, it would have to be determined that the exercise was unreasonable, something the attorney sees no realistic chance of given the threat of COVID-19.

Attorneys representing stranded nationals claim that their rights were being infringed in Chapter 1 Section 4 (D) of the Constitution, which summarily states that all nationals without discrimination by reason of race, origin, colour, religion or sex are granted equality of treatment from any public authority in the exercise of any functions.

With the recent granting of an exemption to the Prime Minister’s daughter after she applied on November 4, some stranded nationals, via their attorneys, claim that having applied before November 4 and not being granted entry themselves, the exemption process is unfair and unconstitutional.

Both Khan and George see little chance of legal success for stranded nationals through this avenue.

Khan said given the ongoing pandemic, the law gives the Government the right to do what they are doing, without even having to declare a state of emergency. And if the Government says the exemption process is not on a first-come, first-served basis, then every application will be treated on its merit, as determined by the National Security Ministry.

“They can file their case and maybe mention that, but they will get nowhere with that,” he said assertively.

“These are high public officials and the ministry is determining whether they deserve to come in unless you can show mala fide (that the Government acted in bad faith) and discrimination, you won’t be able to get through.”

Khan said even if there was a chance that a national, via their attorney, demonstrates to the court that preferential treatment was given to the relatives of a member of the Cabinet, it still doesn’t mean that the stranded national will also receive preferential treatment.

They will still be subjected to the same exemption process, Khan believes.

“The Government is saying it’s not a first-come, first-served basis. It is not inconsistent.”

While acknowledging the exemption process ought to be clear, George believes each applicant will have different circumstances, and because of this, any legal challenge attempting to show discrimination in the process will likely be an exercise in futility.

“That is not practical or possible, nor feasible…to say that, you know, I am pinning you down, and you must specify what happens in each particular instance, I don’t think any court will ever hold any government to that type of standard,” George said.

‘A declared, outlined policy must be established’

Another well-known, senior attorney, speaking off-the-record, has a slightly different view from George and Khan.

He believes while the closure of the borders may be constitutional, a declared, outlined policy as to how citizens get into the country must be established.

“Now, if what Stuart Young put in the papers on Wednesday was really the policy, it would be hard to fault that, where I think they may be running into tremendous trouble is that it is clearly not first-come, first-served. If it ever was first-come, first-served, it is not,” the attorney said.

He suggested that the Government may be running the risk of facing a legitimate legal challenge following two high-profile exemptions–the ones given to the PM’s daughter and the AG’s son.

These exemptions, he claimed, make it clear that the Government made a loophole in the process.

“They’ve blasted holes in two very different ways. You’ve allowed someone who isn’t normally resident to see their family, and in the other case, you’ve allowed someone else–we don’t know the reason–to come and go as well. Then, of course, the second problem they have is that there are loads of people who applied to come back before November 4 (the date the PM’s daughter applied),” he said.

On December 11, 2020, before the exemptions given to relatives of the Cabinet, Young defended a legal challenge from businesswoman Sacha Singh in the High Court.

Singh argued that the exemption process was unfair and biased, however the High Court ruled the allegations had no realistic chance of success.

Previous legal challenges were struck down in the courts as well.