Most of the global migrants to Trinidad and Tobago are detained for a wide variety of reasons. Immigration officers who have reasonable grounds to believe that the person is inadmissible, a danger to the public or that an individual appears unlikely to appear for an examination or hearing may be detained. Another reason for this occurs when the officer is not satisfied about the identity of the person, those overstaying their time, those caught at houses of ill repute, possible refugee claimants and victims of trafficking.
In addition, the high degree of discretion and broad power to detain accorded to immigration and other law enforcement officials, coupled often with a lack of adequate training can give rise to abuse and to human rights violations.
The very serious allegation of human rights violations include the granting of sexual favours to law enforcement officials and immigration officials in return for release is another characteristic of detainees.
Accordingly, the failure to provide legal criteria can result in de facto discriminatory patterns of arrest and deportation of irregular migrants. In many cases, other contributory factors include: lack of the awareness to appeal, lack of awareness of the grounds of detention, difficult access to files and lack of access to legal counsel; also, lack of interpreters and translation services and of information in a language they can understand, on the right to instruct and retain counsel. In the absence of lawyers and interpreters, migrants often feel intimidated and obliged to sign papers without understanding their content.
Length of detention
Practically, administrative deprivation of liberty should last only for the time necessary for the deportation/expulsion to become effective. Deprivation of liberty should never be indefinite. The evidence in Trinidad and Tobago suggests that a lengthy period of detention prevails for a variety of reasons, both local and international. Reasons include the processing of travel documents by Consulates; travel arrangements have to be made, asylum claims and appeals have to be reviewed, and refusal of State of origin to accept the migrant. The Human Rights Committee found that "detention should not continue beyond the period for which the State can provide appropriate justification," and that migrants deprived of their liberty should be kept in conditions that take into account their status and needs.
Consular protection
The 1963 Vienna Convention on Consular Relations (Article 36) provides that if so requested, "the competent authorities of the receiving State shall without delay inform the consular post that its national has been deprived of his/her liberty."
Any communication to the consular post by the person detained shall be forwarded by the competent authorities without delay. The challenge lies when the consular post is not always informed on time, often because many detainees are not aware of their right to communicate with consular representatives, and Consulates are informed when immigration and judicial matters are completed.
Ministry of Justice's approach
Since this new ministry is currently responsible for overseeing the adequate and proper human rights standards, what has been done to ensure that the personnel selected are cognisant of all these international human rights obligations? What has been done to ensure the IDC's mandate is fulfilled? When serious allegations of sexual harassment and abuse arise, to whom can these detainees legitimately complain and receive assistance? Ignorance is also frequently responsible for the application of the legislation by authorities who may lack awareness of international obligations adequate and extreme sensitivity in relation to human rights.
This brings a further question; should there be the establishment of an independent unit specialising in Immigration Inspection and Human Rights to administer, supervise and monitor the operations of the IDC?
Such Inspectors should be empowered to undertake unannounced inspections on their own initiative. Furthermore, inspectors would be to ensure that the IDC are administered in accordance with minimum international standards. They should have full and restricted access to all immigration detainees, staff and records. National human rights institutions and non-governmental organisations can also prove to be very effective in preventing abuses, arbitrary treatment and discrimination of migrants in the name of either the legislation or valid regulations.
Some national institutions can also provide migrants with legal and psychological assistance. Since the crux of the centre involves the management and supervision of detainees along the accepted guidelines and norms of universal human rights standards, the IDC may better serve its purpose under the aegis of the Ministry of National Security.
Joint border security initiative
Whilst there appears to be an alarming legislative deficit with regard to guaranteeing the rights of those administratively detained and a worrisome gap between international law and state practice, Trinidad and Tobago must show that it means serious business. We are too lax in this regard. Another proactive measure would be to promote a meaningful and effective joint initiative with border agencies at Cedros/Tucupita/the closest Colombian port to Venezuela to monitor with powers to deter and detect transnational crimes.
Next week...National security and organised crime: For better or worse?