General — 14 June 2016 — by Adele Ramos
CCJ dismisses LGBT challenge to immigration laws of Belize and Trinidad

BELIZE CITY, Fri. June 10, 2016–The Caribbean Court of Justice (CCJ) this morning dismissed the claims which LGBTI activist Maurice Arnold Tomlinson, a Jamaican national and an attorney, filed against the states of Belize and Trinidad and Tobago in 2013, alleging that the immigration laws of these CARICOM countries impair his right to hassle-free movement within the Community.

Tomlinson had alleged that the domestic laws of both countries run contrary to their commitments under the Revised Treaty of Chaguaramas.

In presenting the summary of the decision on Friday morning, Justice Rolston Nelson said that, “the practice of admitting homosexuals of other CARICOM States is not a matter of discretion but is legally required by Article 9 RTC as this is an appropriate measure within the meaning of that provision.”

“Belize and Trinidad and Tobago maintain that Mr. Tomlinson is entitled to enter their respective territories without hassle and to remain there for up to six months; and also that, as a homosexual, Mr Tomlinson does not constitute a ‘genuine, present and sufficiently serious threat affecting one of the fundamental interests of society,’ so that he is not an ‘undesirable person,’ as envisioned under the 2007 Conference Decision.”

The CCJ said that, “Further to this, the States highlight the fact that Mr. Tomlinson has entered both territories in the past without hindrance and that the existence of the legislation has not caused him to suffer prejudice of which he complains.”

“Mr. Tomlinson’s case failed, however, because he was unable to show that he had ever been or would be in danger of being prejudiced by the existence of the challenged provisions of the Immigration Acts of Belize and Trinidad and Tobago,” said a press statement from the CCJ, in summarizing the ruling.

Tomlinson had asked the CCJ for orders to declare that he has a right to enter these States, as well as an order to have the two States amend their Immigration Acts, which he contends contain clauses which effectively ban homosexuals from entering. The court did not grant him those orders.

Nigel Hawke, Deputy Solicitor General for Belize, had told the court that Belize’s Immigration law only prohibits the entry of homosexuals who are seeking financial gain either by offering sexual services themselves or by profiting from those performed by others.

Speaking with the media after today’s ruling, Hawke said, “We feel vindicated in that our position all along was that our state practice is fundamentally different.” He said that based on the state practices of Belize and Trinidad, Tomlinson’s case could not succeed.

He said that Government may have to look at the judgment and take steps to see what it needs to do, in relation to the existing laws. We asked Hawke whether the Government would amend the Immigration Act, but Hawke said that this would be a matter for his superiors, although he certainly thinks it is something that Belize needs to look into.

The CCJ said it “cautioned that Member States should strive to ensure that national laws, subsidiary legislation and administrative practices are consistent with, and transparent in their support of, the right of free movement of all CARICOM nationals.”

Lisa Shoman, SC, the attorney who represents the United Belize Advocacy (UNIBAM) in a challenge to Belize law criminalizing sodomy, told reporters after the CCJ ruling was presented, that it would be open to Tomlinson or any other CARICOM national that comes in to Belize and is denied entry on the basis of homosexuality to apply again to the CCJ.

She noted that the CCJ ruling was made on a technical basis, as there was no actual denial of Tomlinson’s rights and therefore he did not make out what he had applied for, according to the ruling of the CCJ.

The CCJ ordered each party to pay their own costs.

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