Linton v Attorney General
| Jurisdiction | Antigua and Barbuda |
| Judge | Blenman J |
| Judgment Date | 29 June 2009 |
| Neutral Citation | AG 2009 HC 23 |
| Docket Number | ANUHCV 354 of 2007 |
| Court | High Court (Antigua) |
| Date | 29 June 2009 |
High Court
Blenman, J.
ANUHCV 354 of 2007
Mr. John Fuller for the Claimant
Ms. Karen DeFreitas-Rait Deputy Solicitor General for the Defendant
Administrative law - Judicial review — Claimed breach of rights as a Caricom national and skilled worker under the freedom of movement provisions of the CSME — Finding that claimant unlawfully removed — Damages appropriate for breach of opportunity to seek employment for the two months remaining on initial leave to enter — Sum of $20,000 awarded — No legitimate expectation as freedom of movement provisions not yet Antigua law.
Mr. Lennox Linton, a national of the Commonwealth of Dominica, has filed judicial review proceedings against the Attorney General as the representative of the State of Antigua and Barbuda. The proceedings are in respect of certain rights which, Mr. Linton claims, he enjoys by virtue of the Caribbean Community Single Market and Economy (CSME).
CSME
The CSME was established in 2001 with the adoption of the Revised Treaty of Chaguaramas Establishing the Caribbean Community Including the CARICOM Single Market and Economy (the Revised Treaty or RTC). The Revised Treaty entered into force on 1 January 2006. The Heads of Government adopted the Revised Treaty in order to, among other things, provide for the creation of the CSME which was intended to facilitate the pooling of the region's financial, human and natural resources. The combining of these resources is meant to strengthen the capacity of the region to be better able to respond to the world economic environment. It is an arrangement that allows for CARICOM goods, services, capital and specified skilled workers to move throughout the Caribbean Community without restriction in order to achieve a single, large economic space. (This was before the economic downturn in the global economy). In this way the 2001 Revised Treaty went much further than the original 1973 Treaty of Chaguaramas which was concerned mainly with functional cooperation and the free movement of goods.
One of the aims of the RTC is that specific qualified Caribbean persons who fall within limited categories of skilled workers should be able to seek employment in countries that are part of the CSME. University graduates, media workers, sportspersons, artistes and musicians are recognised categories under the RTC.
Accordingly, Article 46 of the RTC, under the heading “Movement of Skilled Nationals”, states as follows:
“ 1. Without prejudice to the rights recognised and agreed to be accorded by Member States in Articles 32, 33, 37, 38 and 40 among themselves and to Community nationals, Member States have agreed, and undertake as a first step towards achieving the goal set out in Article 45, to accord to the following categories of Community nationals the right to seek employment in their jurisdictions:
(a) University graduates;
(b) Media workers;
(c) Sportspersons;
(d) Artistes; and
(e) Musicians
recognised as such by the competent authorities of the receiving Member States.
2. Member States shall establish appropriate legislative, administrative and procedural arrangements to:
(a) facilitate the movement of skills within the contemplation of this Article;
(b) provide for movement of Community nationals into and within their jurisdictions without harassment or the imposition of impediments”.
The Heads of Government anticipated that supporting legislation would have been enacted in order to give efficacy to the RTC at the local level. It was their hope that other local laws would have been implemented in order to facilitate the movement of certain skilled CARICOM nationals without restriction. In fact, Article 9 of the Revised Treaty provides that Member States shall take all appropriate measures, whether general or particular, to ensure the carrying out of obligations arising under this Treaty or resulting from decisions taken by the Organs and Bodies of the Community.
Antigua and Barbuda is a party to the Revised Treaty.
Background
Mr. Linton says that he came to Antigua and Barbuda in order to seek employment based on the legitimate expectation which he held as a result of statements made by Government Officials. The statements were to the effect that qualified skilled CARICOM nationals, and Mr. Linton is a CARICOM national, would be entitled to come to Antigua and Barbuda to work. He calls in his aid the RTC. He contends that he possessed a Caribbean Community Skilled Certificate issued to him by the Government of the Commonwealth of Dominica, which certifies him to be a media worker. He says he presented the Certificate to the then Chief Immigration Officer and was given permission to remain in Antigua for six months. Before the time granted to him had expired, the permission was unlawfully revoked and he was placed on a flight back to the Commonwealth of Dominica. He also says that this was in clear breach of his rights which are granted to skilled CARICOM nationals, pursuant to the RTC. He further complains that the Immigration Authorities' conduct was in clear breach of law, namely the CARICOM Skilled Nationals Act Cap No.3 of 1997 Laws of Antigua and Barbuda and the Immigration and Passport Act Cap 208 Laws of Antigua and Barbuda (IP Act).
He has therefore filed judicial review proceedings against the Attorney General and seeks damages and declarations. He also requests an order of certiorari to quash the decision to revoke his permission to stay in Antigua on the basis that it was unlawful, irrational and in excess of jurisdiction. Also, he seeks a declaration that he was expelled from Antigua and that his expulsion was unlawful. He further complains that this was in breach of his constitutional right and violated the provisions of the Caribbean Community Skilled Nationals Act No.3 of 1997, the Caribbean Community Act No.9 of 2004 and the IP Act. Further, he says that he was deported in clear breach of his legitimate expectation that he could remain in Antigua. In addition, he seeks damages on the basis that he was wrongfully deported.
The Attorney General denies that the State has acted unlawfully. He says that general statements, if any, which were made by any government official, did not and could not create a legitimate expectation. The Attorney General further denies that Mr. Linton was entitled to remain in Antigua and Barbuda. He contends that while Mr. Linton was given permission to remain until August 2007, this permission was lawfully revoked. Thereafter, he was kept under surveillance and advised to purchase a one way ticket to the Commonwealth of Dominica, which he did. The Attorney General denies that Mr. Linton was forced to leave Antigua and Barbuda.
Importantly, the Attorney General says that the RTC is not part of the domestic law of Antigua and Barbuda and therefore, Mr. Linton cannot rely on the RTC in support of any of his alleged rights.
Further, the Attorney General states that the Caribbean Community Skilled Certificate, which Mr. Linton possessed, did not entitle him to remain in Antigua for any extended period of time. In fact, he argues, the Immigration Authorities had no authority to grant him permission to remain in Antigua and Barbuda for 6 months. The Attorney General also says that there was no other basis for the Immigration Authorities to grant Mr. Linton permission to remain in Antigua and Barbuda for six months, since the Accreditation Board, as required by section 14(2) of the Accreditation Act No.4 of 2006, had not been established.
In consequence, the Attorney General contends that once the relevant authorities had lawfully revoked the permission to remain in Antigua and Barbuda, as they did, they were entitled to request Mr. Linton to leave Antigua. From then onwards he was no longer lawfully in Antigua and Barbuda. If he had refused to leave, the Immigration Officials could have properly taken steps to arrest and deport him. Significantly, the Attorney General denies that Mr. Linton was either arrested or that he was forced to leave Antigua and Barbuda. The Attorney General contends that the decision to revoke the permission is not reviewable.
Accordingly, the Attorney General says that Mr. Linton is not is entitled to obtain any of the reliefs for which he prays. Alternatively, he says that if the court were to find that indeed Mr. Linton was unlawfully removed from the jurisdiction, the court should only award him nominal damages.
Issues
The issues that arise for the court to resolve are as follows:
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(a) Whether any issue arises requiring the interpretation or application of the RTC;
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(b) Whether, on entering Antigua and Barbuda, Mr. Linton was obliged to present the CARICOM Skilled Nationals Certificate to the Immigration Authorities;
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(c) Whether Mr. Linton was entitled to remain in Antigua and Barbuda for six months, based on the permission he had obtained;
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(d) Alternatively, whether Mr. Linton had a legitimate expectation that he would be allowed to remain in Antigua and Barbuda for the duration of the six (6) months, in order to seek employment;
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(e) Whether the decision to revoke the permission that was granted to Mr. Linton is reviewable;
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(f) Whether the permission to stay was lawfully revoked;
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(g) Whether, in the circumstances that obtained, Mr. Linton was unlawfully removed/deported from Antigua;
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(h) What are the remedies, if any, to which Mr. Linton is entitled.
Evidence
Mr. Linton testified on his own behalf. Mr. John McKinnon Chief Immigration Officer (ag) and Mr. Raphael Agnell Supervisor of Immigration testified on behalf of the Crown.
Mr. John Fuller's submissions
Given the heavy reliance by Mr. Linton on the RTC to buttress his claim, the court invited Mr. Fuller to address the issue of whether there were any matters of the...
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