The Court has held that, unlike third country nationals, all CARICOM nationals have a right to enter another CARICOM country for an automatic stay of six months “hassle free” or “without harassment or the imposition of impediments”. There are two exceptions to this right, which permits a Member State to refuse entry or a six month stay –
However, immigration officials do not have wide discretion to apply these exceptions. Member States must ensure that they adhere to Community law and standards in relation to the right of entry, even where their national laws may differ. The Court provide guidance for the application of these exceptions.
The Court has stated that to consider a CARICOM national “undesirable” he/she must be a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, such as the protection of public morals, maintenance of public order and safety, protection of life and health.
The Court also suggested that a reasonable test for assessing such a threat is that, as a starting point, it must be shown that the visitor poses a threat to engage in activity prohibited by national law, and that nationals who engage in such activity are also prosecuted or sanctioned.
A CARICOM Member State is entitled to assess on a strict, narrow, case by case basis whether a visiting CARICOM National may become a charge on public funds during his/her stay in the country. An assessment of whether a CARICOM national is likely to become a charge on the public purse may consider whether the national appears to be in a position to support himself during his intended length of stay.
The Court has indicated that in seeking to make such an assessment it is reasonable for authorities to assess whether the Community national has sufficient funds for the period the visitor intends to stay (as evidenced by his return ticket). The relevant factors may include cash, credit cards, access to funds, or being hosted in the receiving country. However, the Court has made it clear that it is not reasonable to require a visiting Community national to show sufficiency of funds for a period of six months if the national does not intend to stay that long. Immigration officials may therefore ask to see the return ticket, as evidence of the intended length of stay. If the national does not have a valid return ticket, the national may be given the opportunity to obtain one.
Other than the above exceptions which are to be interpreted strictly and narrowly, every CARICOM national is entitled to be admitted to enter a CARICOM country and for his passport to be stamped for six months, regardless of his intended length of visit (in-transit, meeting, visa request or otherwise). He is also within his rights to extend the duration of his ticket within the six month period if he so desires.
All CARICOM Nationals are entitled to entry into another CARICOM Member State, with an automatic six month stay. Both entry and stay must be definite and hassle free. The right of entry for six months is to be extended to a visiting CARICOM National. CARICOM Nationals who are granted a six months definite stay cannot automatically –
A CARICOM National who wishes to stay beyond six months or conduct the above activities in another CARICOM country can only do so pursuant to the relevant Community regime, or national laws. A CARICOM National who wishes to change his/her status as a visitor during his stay, must apply to the appropriate authorities and provide the required documentation, as a CARICOM Skilled National or a service provider, or apply for a work permit or permission to reside. A Member State that receives such an application would do so in accordance with national law and Community law. It should be noted, however, that in the general application of the right of definite entry, that the purpose of the visit is irrelevant, once it is not unlawful.
Where a CARICOM National is being refused entry into another CARICOM country, the Court has determined that the following procedures should be applied –
While this case arose from the 2007 Conference decision, the judgment is applicable to the right of entry of all CARICOM nationals, which would include entry pursuant to any of the free movement regimes (i.e. Skilled Nationals, Right of Establishment, Provision of Services). CARICOM Member States are required to ensure that the above procedures are applied, whether through legislation or administrative action.
No. The refusal of entry must be shown to constitute a breach of the right of entry, such as improper grounds for refusal, or a breach of the procedural requirements as set out by the Court. The Court awarded pecuniary and non-pecuniary damages in this particular case, based on the particular facts which were proven to the satisfaction of the Court. The pecuniary damages (BDS$2240) represented certain travel and medical expenses which were proven by the Claimant. The non-pecuniary damages (BDS$75,000) were awarded because of the serious breaches of the right of entry (from arrival to unlawful departure), which the Claimant was able to prove. However, the Court noted the following -
This award is not necessarily a precedent for all breaches of this right. The very serious circumstances of this breach merit compensation, however, the Court may consider in other cases of breach of right of entry that a Declaration of breach is appropriate relief.