Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

Lawyers rep­re­sent­ing the fam­i­lies of two women with eight chil­dren and two or­phans of a for­mer Trinida­di­an Is­lam­ic State (IS) fight­er strand­ed in a Syr­i­an refugee camp have been en­cour­aged to con­tin­ue talks with the State over its of­fi­cial po­si­tion on whether the group can re­turn to Trinidad and To­ba­go.

Chief Jus­tice Ron­nie Boodoos­ingh and Ap­pel­late Judges Mi­ra Dean-Ar­mor­er and Car­la Brown-An­toine gave the ad­vice on Thurs­day as they heard sub­mis­sions in an ap­peal chal­leng­ing a judge’s de­ci­sion to re­ject the group’s case over the State’s fail­ure to as­sist them in re­turn­ing to Trinidad and To­ba­go. 

The ap­peal pan­el sug­gest­ed that the dis­cus­sions could help in re­solv­ing the dis­pute while they con­sid­er the ap­peal. 

“The Court is about res­o­lu­tion of dis­putes. If there is a way the ap­pel­lants can get some clo­sure, we would en­cour­age some dis­cus­sions be­tween the par­ties,” CJ Boodoos­ingh said.  

Pre­sent­ing sub­mis­sions on Thurs­day, the group’s lawyer El­ton Prescott, SC, not­ed that the State had not stat­ed a po­si­tion on the group’s pro­posed re­turn since an of­fi­cial re­quest was first made in 2019. 

“All we want is for the State to ac­cept them and fa­cil­i­tate where it can. It must say whether it is will­ing to ac­cept these peo­ple as cit­i­zens,” Prescott said. 

Prescott sug­gest­ed that cur­rent act­ing Ap­peal Court Judge Joan Charles was wrong to have cit­ed the group’s fail­ure to ap­ply for trav­el ex­emp­tions dur­ing the Covid-19 pan­dem­ic when she dis­missed the case in 2021. 

Deal­ing with the State’s po­si­tion that there is no right to repa­tri­a­tion, Prescott re­ferred to a Cab­i­net Minute from 1969 in which the con­di­tions for repa­tri­at­ing a cit­i­zen at that time was dis­cussed. 

The doc­u­ment was on­ly dis­closed by the State based on a Free­dom of In­for­ma­tion Act (FOIA) re­quest from the group af­ter the case was dis­missed. 

How­ev­er, CJ Boodoos­ingh ques­tioned its ap­plic­a­bil­i­ty as he point­ed out that the repa­tri­a­tion dis­cussed in the minute in­volved a des­ti­tute man strand­ed in a for­eign coun­try and sim­ply ac­knowl­edged that he (the man) would have to even­tu­al­ly re­fund the State for what it ex­pend­ed in help­ing him re­turn home. 

Re­spond­ing to the sub­mis­sions, at­tor­ney Kiel Tak­lals­ingh, who led the State’s le­gal team, stat­ed that the group could not seek to in­voke a right to ad­mis­sion as cit­i­zens with­out at­tempt­ing to be ad­mit­ted by an im­mi­gra­tion of­fi­cer at a port of en­try. 

“You have to ap­pear be­fore an im­mi­gra­tion of­fi­cer to be as­sessed. It is for an im­mi­gra­tion of­fi­cer to de­cide, not the Min­is­ter of Na­tion­al Se­cu­ri­ty,” Tak­lals­ingh said.

Tak­lals­ingh dis­missed claims that the Cab­i­net Minute gave the group a le­git­i­mate claim for repa­tri­a­tion. 

“The right of a cit­i­zen for the State to fa­cil­i­tate repa­tri­a­tion is un­known in in­ter­na­tion­al law,” Tak­lals­ingh said. 

He sug­gest­ed that Jus­tice Charles was cor­rect to have ruled that the court could not seek to di­rect the State to en­gage in com­plex ne­go­ti­a­tions with for­eign gov­ern­ments and agen­cies to fa­cil­i­tate their re­lease from the camp and their re­turn. 

He said DNA test­ing will al­so have to be used to de­ter­mine if the or­phans are in fact the chil­dren of de­ceased T&T cit­i­zens. 

“The Court ought not to in­ter­fere in diplo­mat­ic re­la­tions, for­eign pol­i­cy or na­tion­al se­cu­ri­ty,” he said. 

“We are not deny­ing the right of cit­i­zens to en­try, but you can­not re­quire the state to fa­cil­i­tate diplo­mat­ic steps to as­sist with repa­tri­a­tions,” he added. 

Tak­lals­ingh al­so ref­er­enced an al­most iden­ti­cal case pur­sued on be­half of chil­dren from France, which was re­ject­ed on sim­i­lar grounds by the Eu­ro­pean Court of Hu­man Rights. 

Tak­lals­ingh not­ed that even though the State was re­sist­ing the ap­peal, the group was still un­der con­sid­er­a­tion. 

He re­vealed that an in­ter-min­is­te­r­i­al com­mit­tee had been ap­point­ed by the cur­rent gov­ern­ment to re­place “The Nightin­gale Com­mit­tee,” which was es­tab­lished by for­mer prime min­is­ter Stu­art Young while serv­ing as na­tion­al se­cu­ri­ty min­is­ter in 2018. 

Tak­lals­ingh stat­ed that the new com­mit­tee held three meet­ings with the group’s rep­re­sen­ta­tives, which were me­di­at­ed by a for­mer Ap­pel­late Judge, but no con­sen­sus was found be­fore the ap­peal hear­ing. 

Af­ter hear­ing the sub­mis­sions, the ap­peal pan­el said it need­ed time to ren­der its judg­ment as the case dealt with im­por­tant points of law. 

The group, a 33-year-old woman, her chil­dren ages six and 11; a 35-year-old woman and her chil­dren ages three, five, ten, 12, and 14 (youngest two born in Syr­ia); and two or­phans ages three and four, were left dis­placed fol­low­ing the col­lapse of the Is­lam­ic State in 2017. 

They were placed in the Al-Hol camp in North­ern Syr­ia. 

The camp, con­trolled by Kur­dish forces, hous­es over 14,000 refugees from over 60 coun­tries, who came to the re­gion to join the caliphate. 

The group is al­so rep­re­sent­ed by Blaine So­bri­an and Se­leena Mo­hammed. Kent Sam­lal and Lau­ra Per­sad ap­peared along­side Tak­lals­ingh for the State.