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Lawyer gets okay to challenge immigration laws
A Jamaican lawyer has been given the green light to pursue his legal challenge to local immigration laws, which he contends are homophobic and inconsistent with Caricom policy on free movement of citizens between member states. In a ruling at the Caribbean Court of Justice (CCJ) in Port-of-Spain yesterday, five judges agreed that Maurice Tomlinson had satisfied the requirements to pursue his claim against Section 8 of the T&T Immigration Act, which allows immigration officials to refuse entry to homosexuals, prostitutes and people who might benefit from the proceeds of either.
The Government of Belize is also a defendant, as Tomlinson is challenging a segment of that country’s legislation which is similarly worded. He brought the action under the Revised Treaty of Chaguaramas (RTC) which established both the CCJ and the Caribbean Single Market and Economy (CSME). An executive summary of the decision issued by the CCJ said Tomlinson had fulfilled the requirements for special leave of the court, which were that he was a Caricom citizen who benefited from regional policy and that his country had failed to represent him in his claim. The summary said the main point of contention was whether Tomlinson had proved he had been prejudiced by both countries’ laws since he admitted visiting both several times in the past without any issue.
Tomlinson has claimed that the mere existence of the legislation was enough to cause him prejudice. The court ruled there was still an arguable case to be decided, based on a recent decision by European Human Rights courts. “It also concludes that the interest of justice requires that leave be granted, because the issues raised in the proceedings involve significant aspects of community law, namely, the relationship between domestic law and the obligations under the RTC, which merit further examination, “ the summary said. During a hearing of the application last November, Law Association president Seenath Jairam, who is heading the State’s legal team, admitted the legislation was antiquated and might have been drafted by homophobic people when it was introduced in 1969.
But both countries submitted their laws had not affected Tomlinson during his four visits to Belize and two to T&T in the past. Attorneys Wayne Sturge and Gerald Ramdeen are also appearing for the State. Tomlinson, who lives in Canada and is married to a pastor, said since discovering the “offensive” legislation he has refused invitations to attend conferences in both countries, the most recent being an HIV workshop in T&T in December 2012 and a advocacy conference in Belize City, a month later. The case of openly gay British singer Elton John, who had to be granted special permission to perform at a concert in Tobago in 2007, was cited in the hearing. Tomlinson’s lawyer, British Baron Anthony Guildford, QC, submitted that his requirement for a special permit was an obvious breach of his right to free movement under the CMSE. Tomlinson now has a week in which to file his substantive lawsuit with the CCJ before a date for the hearing is set.