Mon, 01 Feb 2021
The Turks and Caicos Islands Court of Appeal has allowed the appeal of three detainees in Kajeepan and others v Director of Immigration and Attorney-General (Civil Appeal No: CL 4/20). No5 Barristers' Chambers' Philip Rule appeared for the appellants along with Tim Prudhoe of Prudhoe Caribbean.
The majority decision, of Justices of Appeal Stanley John and Ian Winder, found that the detention of three Sri Lankan nationals was unlawful. This was a very rare appeal concerning habeas corpus and detention purportedly under immigration powers, and an unprecedented appeal in the Turks and Caicos Islands. Each appellant was detained after being found aboard a Haitian sloop in the waters of the Turks and Caicos with 154 persons on board.
This appeal was brought against the decision of the Chief Justice in the Supreme Court delivered on 1 May 2020. It was heard over five days on 22-24 September 2020 and 3 and 9 October 2020. By its reserved judgment of 31 December, 2020 the Court of Appeal allowed the appeal and set aside the order below. It declared that at the time of the hearing of the Writ of Habeas Corpus application the Appellants were being unlawfully detained.
This success opens the way to further redress for the detainees, whose detention had begun in October 2019 and only ended during the course of the appeal litigation. The release resulted from a third writ of habeas corpus that had been taken on behalf of another of the group of Sri Lankan nationals who were on the same boat and also being held at the immigration centre in Providenciales. All the Sri Lankan nationals were then released on 24 August 2020, after 320 days (or 10 ½ months) in detention.
The Court of Appeal majority accepted Mr Rule’s submissions that there remained an important need to determine if there was indeed unlawful detention and the Chief Justice had erred, in order to ascertain entitlement to damages for unlawful imprisonment -; and to caution against further detention -. Further, even if it had been a moot appeal between the parties the majority was clear that the importance of the issues would have justified hearing the appeal in the discretion of the Court .
At paragraph  Winder JA, with whom John JA agreed, explained that:
…(4) The matter was concerned with the exercise of public law duties, and in particular, a review of the duties and responsibilities of immigration officers in the examination and treatment of detainees intercepted at sea in the TCI. This is an important matter having regard to the geographical location of the TCI and its frequent use as a transit point for human trafficking operations and other illegal immigration activities. Issues of this nature, albeit not as extreme in this case, will undoubtedly arise in the future and the guidance, which this Court could provide, would be of utmost significance for the police and immigration authorities as well as the lower courts.
(5) Important points of principle arise for consideration in this case, which are:
(a) whether the Respondents could, as they did here, hand over immigration detainees to the police to conduct criminal investigations into human trafficking; and
(b) whether the Respondents were entitled to refrain from conducting immigration interviews of persons placed in their custody for an indefinite period of time and in the context of this case, 6 months up to the hearing before the Chief Justice. There is a shortage of reported authorities in this jurisdiction on the fundamental rights issues which arise for consideration in this dispute.
(6) This matter required the extraordinary expenditure of public funds through the House of Assembly to bring in expert investigators and should therefore be given the fullest of ventilation. Additionally, as indicated by the parties in their respective submissions, the matter garnered widespread domestic and international attention and as such the matter should be given the fullest of ventilation.
The Court decided that the appeal ought to be largely focused on the state of affairs which were in existence before the Chief Justice and upon which she found that the Appellants’ detention was lawful . The grounds of challenge were noted, at :
The Appellants’ complaints, as to the lawfulness of the detention, may be summarized as the following:
a) They were not examined by an immigration officer in accordance with the provisions of the [Immigration Ordinance].
b) They were not interviewed for the purposes of considering their asylum claims in accordance with the written policy of the Ministry of Border Control and Labour.
c) They were not advised of:
(i) the reasons of the detention;
(ii) the right to instruct counsel and inability of counsel receive instructions from the Appellants.
d) All of the elements identified in the case of Re Hardial Singh  1 WLR 704.
The Court duly found in favour of the Appellants that there was not compliance with:
- the lawful exercise of the power to detain in Section 54 of the Immigration Ordinance;
- the fundamental rights requirements under section 5(3) and 5(4) of the Constitution of the Turks and Caicos Islands ; and
- the Hardial Singh principles , in each respect that:
(1) the power to detain was not used for the immigration-related examination, for which it was designed, but actually used to investigate the criminal offences of the people-smuggler;
(2) the period of time for which the Appellants were detained was not reasonable in the circumstances as these were not criminals but vulnerable individuals seeking refuge;
(3) there were barriers to any removal of the Appellants and therefore no purpose in properly detaining them while these barriers existed and no prospect of imminent removal; and
(4) no due diligence or expedition was demonstrated by the immigration authorities in discharging their responsibilities under the Immigration Ordinance.
Therefore, the decision of the Chief Justice, that the detention of the Appellants was lawful, could not be supported and had to be set aside.
Mottley P (whilst dissenting concerning the outcome of the habeas appeal) also considered the constitutional violation raised on appeal concerning the conduct of the habeas hearing itself. He confirmed the important point that an appellant is entitled to raise in an appeal a complaint that his rights as guaranteed under the Constitution have been infringed or breached and, as such, that he was deprived of the protection of the law requiring a fair trial. The President said it has always been open to an appellant to allege for the first time on appeal that his fundamental rights as guaranteed by the Constitution have been breached because the trial below was unfair. To raise and determine that issue for the first time during the course of the appeal does not infringe the procedural provisions of section 21 of the Constitution .
These successful cases follow dedicated work from February 2020 onwards by Prudhoe Caribbean, a firm based in the TCI, headed by Tim Prudhoe, and assisted by the firm’s Mikhail Charles and Yuri Saunders.
The detainees’ cause was taken up by Prudhoe Caribbean after the plight of the refugees, who had been detained since October 2019, came to light by chance. They had been afforded no access to any lawyers since being detained, and indeed the firm faced a continuing battle to have any access to the detainees, left without even translation or interpretation assistance from the government. Having made a journey of around 10,000 miles a group of primarily Sri Lankan nationals arrived by boat in the waters of the Turks and Caicos Islands and were detained on arrival in TCI on 10 October 2019. They are victims of human trafficking, for which a Canadian national faces prosecution in the United States of America - https://www.ctvnews.ca/world/canadian-faces-human-smuggling-charges-in-u-s-after-turks-and-caicos-prison-stint-1.5072136?cache=zviomxnayn%3FclipId%3D104069.
Philip Rule is Head of the Public Law Group at No5 Barristers' Chambers and practises human rights, immigration and detention law. He has experience of working in the Caribbean region, including previous successful Court of Appeal appearances leading to reported cases in the Cayman Islands. He also undertakes Privy Council work.
Tim Prudhoe is a barrister of the English bar, practising from Outer Temple Chambers, and an attorney of several Caribbean jurisdictions including over 20 years’ experience in the Turks and Caicos Islands https://prudhoecaribbean.com/tim-prudhoe/
CL AP 4.20 - Judgement (Winder and John) and dissenting Judgement (Mottley)