Barbados Government should obey previous Supreme Court judgment and free Raul Garcia

“The applicant has been held in detention at H.M.P Dodds pending deportation for in excess of 17 months. Counsel for the Respondents conceded that as the applicant is a ‘stateless person’, his deportation and expulsion from Barbados could not now be achieved having regard to Barbados’ obligations under the 1954 Convention Relating to the Status of Stateless Persons.”

“In the circumstances, as the Minister Responsible for Immigration is unable to say when the applicant is likely to be deported from Barbados and as no evidence has been provided that his continued detention is necessary on ground of national security or public order, the Court holds that the applicant’s continued detention under the Immigration Act, is no longer reasonable or lawful and the applicant should be released from detention at HMP Dodds.”

Honourable Madam Justice Maureen Crane-Scott, Q.C., August 31, 2009

Barbados High Court decided the law on cases like Mr. Garcia two years ago!

Barbados Free Press has received a copy of an unreported Barbados court decision that is exactly on point in the Raul Garcia case.

Bajans can now state with certainty that Mr. Garcia is being illegally held at Dodds Prison by the Barbados Government – and that is according to the Barbados Supreme Court. Mr. Garcia’s sentence ended almost two years ago but he is still being held in a maximum security prison because he is stateless. (Main Raul Garcia article here)

Please read this previous court decision (below or at the link above) and you’ll understand that it is Prime Minister Stuart and his government who are the lawbreakers now, not Raul Garcia. Laws and court orders: do they mean anything to our Barbados government? DLP or BLP doesn’t seem to matter – our governments do what they want regardless of court orders.

BARBADOS

[Unreported]

IN THE SUPREME COURT OF JUDICATURE

HIGH COURT

Civil Division

Suit No: 117 of 2009

Consolidated with Suit No: 14 of 2009

BETWEEN

“ORSC”                                                                               APPLICANT

AND

THE SUPERINTENDENT OF PRISONS                               1st RESPONDENT

THE MINISTER RESPONSIBLE

FOR IMMIGRATION                                                             2nd RESPONDENT

ATTORNEY GENERAL OF BARBADOS                            3rd RESPONDENT

Before The Honourable Madam Justice Maureen Crane-Scott, Q.C. Judge of the High Court

(In Chambers)

2009: August 31

Mr. Douglas Trotman in association with Miss. Veronica McFarlane for the Applicant

Ms. Irene Stephney, instructed by the Solicitor General for the Respondents

DECISION

[1]        This is an urgent application to secure the applicant’s release from Her Majesty’s Prison at Dodds (HMP Dodds) where he is detained pursuant to orders made by the Minister Responsible for Immigration under the Immigration Act, Cap. 190 of the Laws of Barbados.

[2]        The applicant was born in Cuba on the 29th day of August, 1974. He entered Barbados as a visitor on August 24th, 2006 for a period of 1 month. On expiration of his 1 month entry permit, he applied for and was granted an extension of 15 days. Thereafter he illegally resided and worked in Barbados until January 22, 2008 when he was arrested by police and handed over to the immigration authorities.

[3]            Following his arrest, the applicant was detained at the Grantley Adams International Airport for an initial period of 2 months. On March 18th, 2008 the Minister Responsible for Immigration signed orders for his deportation and detention pending deportation from Barbados. He was served with the Deportation Order on March 18, 2008 and thereafter transported from the airport to HMP Dodds where he still remains under detention pending his deportation.

[4]            Counsel for the applicant argued that while the applicant was admittedly not a Barbadian citizen or permanent resident, he was nevertheless entitled to the protection guaranteed by section 13 of the Constitution of Barbados against deprivation of his personal liberty save as authorized by law. He referred to sections 13(6) and 22(2) of the Immigration Act and contended that while the Minister Responsible for Immigration admittedly had the power to detain the applicant pending deportation, the power to detain was not without limit.

[5]        He contended that the applicant had been under detention pending deportation for in excess of 17 months and that his continued detention was now unreasonable since all efforts by the Immigration Department to remove the applicant from Barbados had failed and the immigration authorities could not say with any certainty when he would be removed from Barbados.

[6]        It was generally agreed that although he was a Cuban national, the applicant was now a ‘stateless person’ since he would not be accepted back into Cuba by Cuban authorities by reason of his having remained out of Cuba without the prior permission of the Cuban authorities.

[7]        He contended that Barbados was a party to the 1954 Convention Relating to the Status of Stateless Persons and that as a ‘stateless person’, the applicant could not now lawfully be expelled from Barbados save on grounds of national security or public order. Furthermore, although the applicant had no statutory right of appeal under the Immigration Act against the deportation order, the applicant could not lawfully be denied access to the Courts, having regard to Article 16 of the Convention. The applicant, he submitted, was therefore entitled to apply for a writ of habeas corpus and/or for judicial review of the detention order and was properly before the Court seeking redress.

[8]            Counsel for the Applicant cited the Privy Council case of Tan TE Lam and others v. Superintendent of Tai A Chau Detention Centre et al [1996] 2 WLR 863 and urged the Court to order the release the applicant from Prison on the basis that as there was no immediate prospect of the applicant’s lawful deportation or removal from Barbados, his continued detention was accordingly unreasonable and unlawful.

[9]        While conceding that the applicant was in fact a ‘stateless person’, Counsel for the Respondents nonetheless opposed the application for his release. She argued, inter alia, that the applicant’s detention at HMP Dodds had been effected through the lawful exercise of a discretionary power conferred on the Minister Responsible for Immigration under section 13(6) of the Immigration Act, Cap 190.

[10]      The Minister, she said, had followed all procedures laid out in the Act. Furthermore, the place of detention was not unlawful and the detention itself was both reasonable and appropriate. Finally, she contended, section 23 of the Act operated to oust the Court’s jurisdiction to review the detention order.

[11]      She urged the Court to pay deference to the decision of the Minister of Immigration as the primary decision maker. The Court, she argued, should also avoid the temptation to evaluate the evidence before the immigration authorities so as to avoid usurping the role of the immigration authorities. In support of this submission, she cited Regina (Farrakhan) v. Secretary of State for the Home Department [2002] 3 WLR 481 and Secretary of State for the Home Department v. Rehman [2003] 1 A.C. 153.

Discussion

[12]      The Court has considered the evidence filed by the applicant together with the legal submissions of Counsel for both parties for and against the application together with the applicable law. It was also noted that no affidavit had been filed on behalf of the 2nd Respondent justifying the continued detention at HMP Dodds or explaining why the applicant’s deportation had not yet been achieved.

[13]      Having examined relevant legal authorities, the Court is satisfied that the power of detention conferred by section 13(6) of the Immigration Act, Cap. 190 is not at large but is subject to limits. The power of detention is limited to only such period of time as is reasonable necessary to enable the Minister Responsible for Immigration to carry out the process of the applicant’s deportation and removal from Barbados.

[14]      It is implicit in the power to detain that the Minister should exercise all reasonable expedition to ensure that following the detention, the individual is deported or removed from Barbados within a reasonable time.  If it is apparent to the Minister Responsible for Immigration that the deportation or removal of a person who is intended to be deported will not be achieved within a reasonable period, it would be wrong for the Minister to seek to exercise the power of detention under the Act.

[15]            Furthermore, if having exercised the discretion to detain a person, it becomes apparent to the Minister that that person’s deportation or removal from Barbados can no longer be achieved within a reasonable period, the person’s continued detention would no longer be reasonable or lawful unless the Minister is able to establish by evidence that continued detention is necessary on grounds of national security or public order. The foregoing principles have been applied in a variety of factual situations. See R v. Durham Prison ex parte Hardial Singh [[1984] 1 WLR 704; Tan TE Lam et al v. Superintendent of Tai A Chau Detention Centre et al (cited above); The Queen on the application of A, MA, B, ME v. Secretary of State for the Home Department [2007] QBD (Admin Ct.) 142; Also see Hawkesworth [et al] v Attorney General and Commissioner of Police (Unreported) H.C. B’dos. Suit No. 1025, 1028 and 1029 of 2004, 2004-07-27; and Atain Takitota v. The Attorney General, Director of Immigration and Minister of National Security Bahamas Privy Council Appeal No. 71 of 2007.

[14]      The applicant has been held in detention at H.M.P Dodds pending deportation for in excess of 17 months. Counsel for the Respondents conceded that as the applicant is a ‘stateless person’, his deportation and expulsion from Barbados could not now be achieved having regard to Barbados’ obligations under the 1954 Convention Relating to the Status of Stateless Persons.

[15]      In the circumstances, as the Minister Responsible for Immigration is unable to say when the applicant is likely to be deported from Barbados and as no evidence has been provided that his continued detention is necessary on ground of national security or public order, the Court holds that the applicant’s continued detention under the Immigration Act, is no longer reasonable or lawful and the applicant should be released from detention at HMP Dodds.

Disposal:

[16]      Against the foregoing decision of the Court, Counsel for both parties then consented to the following terms and conditions for the applicant’s release from detention which were duly approved by the Court as follows:

(1)   The Superintendent of Prisons shall release the applicant “ORSC”, with immediate effect;

(2)   The Applicant shall be released into the care of Mr. Harry Collymore of Dunlow Lane, Bay Street, St. Michael pending the execution of the Deportation order dated March 18, 2008 subject to the following terms and conditions:-

a)      The applicant shall report to Mr. Clarence Harewood, at the Immigration Department, Careenage House, Wharf Road, Bridgetown on Mondays and Fridays by 10:30 am;

b)     The applicant shall not engage in employment (paid or unpaid) during this period.

(3)    Liberty to apply.

Maureen Crane-Scott

Judge of the High Court

28 Comments

Filed under Barbados, Crime & Law, Cuba, Human Rights

28 responses to “Barbados Government should obey previous Supreme Court judgment and free Raul Garcia

  1. Pingback: Barbados prisoner Raúl García vows hunger strike until death | Barbados Free Press

  2. robert ross

    EXACTLY. WELL DONE SOMEBODY FOR DIGGING THIS UP. It was self-evident all along that the Government was in breach of that convention if Barbados was a party to it; and executive discretion is not unlimited – as the Judge pointed out.
    BUT the question now is whether it is necessary to find someone who will assume responsibility for Raul or whether given governmental compliance there are other strategies which might be employed.
    What is horrifying, however, is that this government, despite their legal advisers and, indeed, their own access to this material as lawyers themselves, have not ‘come clean’ and openly acknowledged their legal responsibilities. I hope the case was not appealed and a contrary decision reached. But I’m sure if it had been Government would have been quick to rely on it THEN. What a bunch!
    But it also leads me to ask what Raul’s lawyer thought she was doing all this time. Or did she supply the unreported judgment?

  3. just want to know

    Let Crane-Scott take him into her home then.

  4. robert ross

    Gee fella – what a pissy prick you are. Get a life.

  5. The Devil

    Hi there ‘just want to know’ I just want to know you, come join me at MY home, we’ll have lots of fun, I like how you think and how you talk…..I cant wait until you die,muhuhahahaha

  6. mason

    i say ship him back to cuba. when he get there let dem decide what to do wid he.

  7. what will they think of next

    wen wunna gine stop wid dis garcia foolishness?
    is it because he is white?

  8. robert ross

    @ MASON, JUST WANT TO KNOW, WHAT WILL THEY THINK OF

    You have so many personae I have concluded you don’t exist. You are conjuring tricks. Illusions.
    I mean…..how can a total idiot, wid all de wen’s an wunna’s an gine’s an dem’s, know about COSCAP and copyright – and be able to spell the word?
    No, you are fictional characters, Rag, Tag and Bobtail, in a series of novels never to make the best seller list and written by……

  9. why hasn’t the man been released into the care of mr harry collymore as ordered by the court? that is the question in need of answering.

  10. Marvin Bareback

    The truth of the matter is that if he is released into the public sphere of Barbados, then the government is obliged to issue him an identity card and passport….he becomes a Barbadian….it’s an international convention if no other country is willing to take him. He came here on faked Colombian papers….he should just get those back and put on a plane to Bogota.

  11. robert ross

    @ balance

    I got confused at first too. The case mentioned in the blog is a different case but the idea is that it is a statement of the law in matters of this kind – and the effect is that Raul is being unlawfully detained.

  12. robert ross

    @ Marvin……

    Since the papers were fake the Colombian government would send him back here if they didn’t choose to give him leave to land.

  13. An Observer..

    @ robert ross
    Sad to say Mr Ross but you are not the most perceptive reader. The man in the case posted was a visitor to Barbados who was given permission to stay in Barbados; he then overstayed his leave and deportation was sought. Garcia on the other hand is a convicted criminal who has no status granted to him. There is no great similarity between the two cases.

  14. robert ross

    @ Observer

    I did not say at any point that the cases are ‘on all fours’ – as you know very well.. At the critical time, P in the case posted was here illegally but his unreasonable detention was accounted unlawful. Raul entered on a false passport. That was illegal. For the drugs offence he was punished and THAT case is now CLOSED. It is a moot point whether Raul now has the same status as when he entered, ie that his presence is illegal or, possibly, that he is an illegal resident to use the jargon of the Stateless Persons’ Convention. But, in any event, his continued detention 20 months and more on is clearly unlawful, if the case cited above were to be followed – which I would argue it should be. We are not speaking of his crime. We are speaking of his continued detention…..and THAT is the critical similarity. Is a man to rot in jail indefinately BECAUSE for whatever reason he is stateless? THAT is a breach of the Convention.

    .
    You talk of ‘perception’. I do assure you that I am not totally myopic – but from the
    Government’s perspective my perception is that you could not have put it better It’s not much and misses the point – rather like failing to distinguish common design from joint enterprise as the DPP’s office is wont to do. But I guess it’s the best you can do..

  15. In the Case of Raoul Garcia,(1) He Had False Papers
    (2) he was caught with Drugs (Trafficker)
    (3)He is Cuban By Birth
    (4) He is American by Naturalization
    (Documented)
    he Lived in the United States of America from the Age of 5 , and cultivated all his bad habits there,nowhere in this Bio. do i see anything related to Barbados.so tell me!!! where is our responsibility towards him—NONE as far as i can see.
    The SOLUTION:::Put him on an American Airways or Jet Blue airline along with his File and send him back where he came from, and let them know that if they send him back to Barbados the Plane will not be allowed to land at GIA.
    IF YOU DON’T STAND FOR SOMETHING,YOU WILL FALL FOR EVERYTHING.
    THEY NEED US AS MUCH AS WE NEED THEM,WE ARE THEIR FIRST DEFENCE FOR THE DRUGS BEING SHIPPED TO THEIR COUNTRY TO SATISFY THEIR HUNGER FIR THEM.
    SOMEBODY HAS TO STAND UP TO THE BULLY AT SOMETIME

  16. robert ross

    @ Mr T

    No-one, certainly not me, is suggesting that Raul should remain here permanently or indefinately. Get that clear please. It is not his wish anyway.
    No-one, certainly not me, is suggesting that the over-all legal position is not tangled.
    BUT the evidence (thus far) suggests that Raul is NOT a US citizen by naturalization. Permanent residence is not the same as naturalisation. IF he IS a citizen, then I agree that US should take him. But I assume that he would not have needed to acquire fake Colombian papers if he were. Since the evidence is that he has lost his Cuban nationality, the result is that he is stateless, and so is entitled to the protection of the Convention on Stateless Persons to which Barbados became a signatory in 1972 or thereabouts.
    You ask what his link, biographically, is with Barbados. To quote a nice exchange in the film ZULU: “Why US serjeant?” “Because we’re HERE lad.” – and in Raul’s case he has been here for the best part of 20 years. That is not a virtue but it is a fact – and, at root, the question is about how serious our Government is in honouring its international and domestic legal obligations, its human rights undertakings and so the rule of law in good faith. Without that element of seriousness and good faith, as a nation we don’t amount to very much.

  17. robert ross

    Is someone able to enlighten me on something? I read somewhere on the internet today that Raul appealed his sentence some time around 1999. The basis of the appeal seems to have been that in the circumstances of the arrest there was no evidence that he was a drug trafficker and so the ‘life imprisonment’ sentence was excessive/wrong in law. The Appeal Court agreed. As a consequence Raul’s term was reduced to 20 years, presumably for possession. Is that right? If it is, technically I suppose the ‘slur’ that Raul was a ‘drug trafficker’ is misconceived.

  18. Ghetto Yute

    All the hype about this Raul matter is just ridiculous. I figure that if B’dos as a nation allows this man to remain her and we treat him as a citizen the key question is when another Cuban gets involved in a criminal matter and is arrested and incarcerated do we set a precedent where we automatically make them citizens?
    What is Colombians bring drugs or get involved in crime and Colombia syas that they don’t want them back do we start populating B’dos with ex-cons.
    So a few years down the road B’dos will become the ex-con Captial of the Caribbean?
    Peoples, stop the bunch of shit talk and legal jargon and international legal conventions and understand the reality, if we start naturalizing ex-cons from these countries others will look on and believe that B’dos is a soft destination, hence they can come, do crime and be naturalize citizen. probably then get a passport and what ever little reputation B’dos has as an international destination is simply eroded.
    My humble opinion is to stay firm and refuse Mr. Garcia entry into Barbadian society. he American are doing it, Cuba is doing, why not B’dos?

  19. chris mchale

    apparently the Government of Barbados is acting in contempt of the Court Order of Justice Crane Scott;
    putting the Govt and People of Barbados liable for an action in damages;
    and contrary to our hallowed Constitution.

  20. Mark Fenty

    Ghetto Yute, I see it quite differently sir. I believe as well as some of us with a conscience, that this case centers much more on the issue of morality, rather than some legal precedent which you seem to think its going to set.

    Now, are you in essence saying that because the United States of America and other countries are doing it, as you have indicated, that Barbados should do likewise? Sir I vehemently disagree with your unfounded perspective. Because I believe that the Garcia case is one of the happenstance, which calls for an unconventional kind of political intervention, on the part of the Barbados government. In this case, I believe that we have elbow aside the laws which govern human society, in an effort to bring some clarity to its moral implications.

  21. Mark Fenty

    It has been said that: “When the notion of right of duty, and justice are ignored, the moral law makes it self heard.” I’ve argued from my initial encounter with this case; that it calls for those with some kind of a conscience to exercise their moral imperative. Clearly, this case imprints my conscience, the feeling that our individual liberty is in jeopardy. When the power at be, lack the suitable solutions to address the unprecedented legal happenstances.
    Moreover, the lackadaisical approach by the Barbados government with respect to resolving Mr. Garcia case. Could in essence, result in deplorable consequences for the island of Barbados, If Mr. Garcia dies on their watch.
    Worse, yet, this case also convey an important message, which those persons of good moral conscience, can’t afford to ignore any longer. It heightens our awareness, and broadens understanding to the moral directionality of those influential forces which possess the means to bring an instantaneous resolution to this crisis, but has failed to do so thus far.
    Nonetheless, I absolutely understand the government unwillingness reinstating the residency of someone who has contravened the sound laws of a sovereign state. Because of course, in the United States for example, those who commit such crimes are locked away in prison for the rest of they lives. But it is important to note, that Barbados is not the United States of America.
    But, perhaps the single most important question which looms largely in my mind is this. Does the government position hold any legitimacy when human life hangs in the balance? I’ve always believed that when human life is at stake, that the government has a moral responsibility to act in the interest of preserve human life. Rather than creating an atmosphere which encourages the contrary.
    All in all, the restoration of Mr. Garcia’s personal autonomy is the right direction the Barbados government can take; if it wants to maintain its credibility in the international community. I also believe that if justice for my Garcia does come through the appropriate channels of government. Then perhaps in the court of public opinion, and the collective conscience of the masses, he will be vindicated.

  22. Mark Fenty

    I’ve written quite extensively I believe on the topic regarding Mr. Raul Garcia confinement. And I’ve done so because I believe this case transcends the jurisprudence, with governs human society, and penetrates profoundly within our human conscience.
    Many if not most have argued the pros, and cons of this very unusual case. And sadly enough some have used Mr. Garcia’s shortcomings as a convenient punching bag, to marginalize the effort made by others to win personal autonomy.
    But, whether rightfully interpreted, or wrongfully conceived by some. What is important in this case, I believe is the fact that a human life hangs in the balance. Now, don’t misinterpret my intentions, because I don’t profess to be an authority on what government should or should not do with respect to happenstances of this nature. But I’m merely voicing my unqualified opinion, because the inner voice of my conscience tells me that there is something seriously wrong, with the way in which Mr. Garcia has been treated thus far.
    From an outside observer’s vantage point, it seems like the actions of the Barbados government is rather precipitous. I could understand if Mr. Garcia was given a second opportunity to redeem himself, and he had made a similar mistake. Then the actions of the Barbados government in my opinion would have warranted such response.
    But we are dealing here with a man who has served his time, and just because the land country of his birth refused to accept him back. Somehow the government of Barbados thinks that it has the moral authority, to confine Mr. Garcia definitely, that’s just not right.

    Listen! The choice the Barbados government ought to make seem quite clear to me. Restore Mr. Raul Garcia individual autonomy, and allow him to resume his life as a productive member of the human family.

  23. Mark Fenty

    It seems rather likely that all indications direct our attention to the fact that Mr. Garcia case is going to be resolved in the court of public opinion. Rather, than in a court of law, as a direct consequence of the immovability, and inflexibility of the Barbados government to genuflect at the court’s decision.

    But of course, one can conspicuously conclude, that the actions on the part of the Barbados government with respect to Mr. Garcia’s case; demonstrates categorically, and unequivocally the audacious impudicity, of a government that refuses to adhere to the prescriptive mandate of the court.

    In any instance, I’m one who is unambiguously convinced beyond the circumference of a fact, that from time to time, it is becomes necessary for one to adhere to the law of human conscience, as I believe this case calls for; rather than the unsounded laws of civil society which dictate our human demeanor.

    Now, there are those who are of the conviction that by granting Mr. Garcia the prerogative to reside in Barbados somehow undermines the jurisprudence of Barbadian system of government. And this they conclude would in the process set a precedent of irretrievable consequences.

    But, I see it quite differently; now irrespective of the undesirable precedent some hypothetically perceived this case to bring to fruition, providing that Mr. Garcia succeed with his hunger strike. The fact still remains nonetheless, that if the criminal elements believe that the island Barbados is the kind of society which is a magnet for illegal drug activity.
    Then sadly enough, there’re going to be many more individuals of Mr. Garcia’s caliber jostling for the kind of opportunity to do likewise in our country. So then, the question which looms largely in my mind is this. What are some of the solutions to this unprecedented political happenstance?
    Should the immigration authorities be more proactive, rather reactive when screening individuals entering the island of Barbados? Or is it feasible for the government of Barbados to implement stricter laws on the book; which some believe would convey that kind message to the criminal element who believe that they can find solace in Barbados after contravening its sovereign laws, given that fact that Mr. Garcia succeeds in his endeavor.

    Nonetheless, in the final analysis however, I think that it is sufficiently plain to say, that when human life hangs in the balance. The government, whose principles are founded upon the democratic persuasion, must act in a manner which protects and guards sanctity human life; irrespective of the circumstances which have given raise an unprecedented political happenstance.

  24. Pingback: Barbados continues to illegally imprison Raul Garcia | Barbados Free Press

  25. Pingback: Barbados shame – Prisoner Raúl García to starve himself to death | Barbados Free Press

  26. Posh

    The only problem in that case is that perhaps National Security issues did not apply as the person may have been in jail for different reasons. Raul Garcia is a convicted drug trafficker and the method by which he did it was extreme.

    So the Government could successfully argue he is a threat to national security. 🙂

    So just because you have one case saying something doesn’t mean precedent automatically applies, there is something known as distinguishing based on facts.