The Shanique Myrie case raised several legal issues. There were also a number of factual matters that needed to be resolved.
One of the factual issues was whether Miss Myrie was untruthful about her intended host. The Barbados Government claimed it was one Daniel Forde; Ms Myrie insisted it was Pamela Clarke (an elderly woman whom she had met on the Internet).
Even if the host was in fact Daniel Forde, the court made it clear that if the refusal of entry was solely on the ground that it was believed that he was of bad repute, that would not in itself be ground for refusal of entry. At paragraphs 72 and 73 of the judgment the court remarked:
[72] “The evidence in this case reveals that under Barbados domestic law, the practice has been that [Caribbean] Community nationals are often denied entry into Barbados where they intend to stay with a person who is ‘not of good repute’ or where the community national is deemed to be ‘a bona fide visitor’.”
Neither of these grounds by itself appears to meet the relevant test previously outlined. In this case, however, it was not alleged that Ms Myrie was deported for either of these reasons. The reason offered by Barbados for refusing her entry was that she had not been truthful with the officials who handled her case. Barbados justifies her deportation on the basis that Ms Myrie had told them that she was invited to Barbados by Ms Pamela Clarke who was to be her host. Barbados insists that was false.
[73] “The court accepts, of course, that a visitor is under an obligation to be truthful to immigration officials. The court, however, has difficulty with the fairness of the procedure by which it was definitively determined by Barbados that Ms Myrie was lying. The court has even greater difficulty in itself so concluding in light of all the surrounding circumstances. The evidence adduced on this point consisted of contradictory statements of Ms Clarke and Ms Myrie. Significantly, although Ms Clarke claimed not to know Ms Myrie at all, she did admit that she had given permission for Ms Myrie to use her name and telephone number upon arrival at the airport. It was established that Ms Myrie was indeed in possession of Ms Clarke’s telephone number.”
The court had grounded its decision in part on the decision of the 28th Meeting of the Conference of Heads of Government. That decision reads:
“The conference agreed that all CARICOM nationals should be entitled to an automatic stay of six months upon arrival in order to enhance their sense that they belong to, and can move in the Caribbean Community, subject to the rights of member states to refuse undesirable persons entry and to prevent persons from becoming a charge on public funds.”
The court in interpreting the above decision made it clear that the right of entry must be “definite” and “hassle-free” and did not depend on the exercise of domestic discretion by immigration officers.
In paragraph 64 of the judgment the court said: “The 2007 conference decision emphatically states that the right of entry and definite stay of six months is ‘subject to the right of member states to refuse undesirable persons entry and to prevent persons from becoming a charge on public funds’. In its submissions Barbados appears to regard these two qualifications as conditions precedent to the acquisition of the right of entry and six-month stay. This would explain why Barbados, in construing these words of the decision, leans heavily on its domestic law and the discretion which is accorded to its immigration and customs officers under that law. The approach, however, is not correct.
“The wording of the decision where it speaks about ‘automatic stay’ or ‘definite entry’ upon arrival suggests that the right does not depend on discretionary evaluations of immigration officers or other authorities at the port of entry. The fact that entry and stay are described as ‘definite’ and ‘automatic’ precludes any dependency of the right itself on the exercise of domestic discretion.”
Ms Myrie was a first-time visitor who insisted that she had only intended to stay at Ms Pamela Clarke. Clarke denied knowledge of Ms Myrie and seemed unprepared to indicate to either the officer from the Drug Squad or the Immigration officer that Ms Myrie was staying with her.
Since the intended host rejected Ms Myrie, would the burden not have shifted to her to provide an alternative satisfactory to the Immigration authorities and consistent with the requirements of a visitor seeking to enter the country?
It is submitted that the right to enter must carry with it the requirement that there be a place to stay. Further, a place of abode is a condition precedent to the acquisition of the right to entry.
• Cecil McCarthy is a Queen’s Counsel.
