Are Jamaicans the Gypsies of CARICOM?
Stephen C. Johnson, Guest Columnist
Trinidad and Tobago's national security minister charged recently that illegal Jamaicans have placed an economic burden on the government of the twin-island republic amounting to some TT$1 billion. Indeed, it would certainly seem that the minister stopped short of labelling Jamaica the Romania of CARICOM.
I have chosen Romania as a point of reference as in the European Union (EU), Gypsies are treated with scorn; they remain poverty-stricken, with a high propensity to migrate across the EU. In fact, of all the other EU member states, they have the highest rate of emigration. Perhaps the forefathers of the Treaty of Rome envisioned this would be so.
Consequently, free movement of people was never an automatic right under this treaty. Instead, a separate agreement was established to facilitate free movement of people. Of the 28 EU member states, only 22 are part of the Schengen Agreement. Noticeably absent are the United Kingdom (UK), Ireland, Bulgaria, Cyprus and Romania. The latter three are noted for their lowly developed economies, as well as their nationals, who have a tendency to migrate as opposed to the UK (including the Republic of Ireland), which has indicated a preference to man its own borders.
As a result of the Romanian exclusion from the Schengen Agreement, France (a member of the Schengen Agreement), in 2010, offered €300 to Roma adults and €100 to each Roma child who accepted and agreed to voluntarily leave the French border. When this offer was not taken up by most of the Romanian emigrants, France engaged in forced migration, citing an evasive increase in illegal migration and an immense burden on their economy.
If the recent claims that 19,000 illegal Jamaicans are true, then Trinidad and Tobago, like France, may start offering these illegal Jamaicans money to leave. In the event that the offer is not accepted, they may force them to leave.
NO SEPARATE AGREEMENT
However, in contrast to France and Romania, both Jamaica and Trinidad and Tobago are signatory to the Revised Treaty of Chaguaramas. There is no separate agreement in place for free movement. This would suggest that Jamaicans, by virtue of being CARICOM nationals, have the definite right to free movement. But in reality, is this so? Or moreover, was this ever the intention of our forefathers?
The vision of an integrated Caribbean Community was never founded with the intention of including free movement of people. Article 38 of the Treaty of Chaguaramas explicitly outlined: "Nothing in this treaty shall be construed as requiring, or imposing, any obligation on, a member state to grant freedom of movement to persons into its territory, whether or not such persons are nationals of other member states of the common market." In essence, free movement of goods and capital was embraced but not free movement of people.
Fast-track 28 years later in 2001 to the Revised Treaty of Chaguaramas, which facilitated free movement of people but restricted to select categories of persons. Even then, signatories of the Revised Treaty of Chaguaramas were not compelled to provide free movement to member states nationals. Instead, Article 45 urges member states to "commit themselves to the goal of free movement of their nationals within the Community".
Consequently, between 2001 and 2007, Caribbean nationals did not have an established right of entry into CARICOM member states. Nationals only had entry subject to Article 46(1), which granted the right of free movement to five categories of persons: university graduates, media workers, sportspersons, artistes, and musicians. This remained so up to 2007.
In 2007, at a high-level Heads of Government Meeting, it was "agreed that all CARICOM nationals should be entitled to an automatic stay of six months upon arrival in order to enhance their sense that they belong to, and can move in the Caribbean Community, subject to the rights of member states to refuse undesirable persons entry and to prevent persons from becoming a charge on public funds". Despite this, the proclamation of heads of state did not change much after, as it would appear that some states were either enforcing the original Treaty of Chaguaramas or the revised version, which granted no access or restricted access to five categories of persons.
The right of free movement, as established by the heads of government in 2007, was subjected to interpretation in 2013, in the Shanique Myrie case.
In her defence, Myrie's legal team argued that the heads of government's declaration on free movement in 2007 gives CARICOM nationals the right to free movement. Barbados objected to this, claiming that the heads of government's decision was not legally binding. Moreover, Ms Myrie did not fall into any of the five categories of persons entitled to free movement under Article 46 of the Revised Treaty of Chaguaramas.
The court ruled that the 2007 affirmation of the heads of government was legally binding. Furthermore, the right to free movement is accorded to all CARICOM nationals. The Caribbean Court of Justice also clarified the meaning of "undesirable persons", and clarified the meaning of charge on public funds:
"Undesirability is meant to be concerned with such matters as the protection of public morals, the maintenance of public order and safety and the protection of life and health ... . The court holds that no restrictions in the interests of public morals, national security and safety, and national health should be placed on the right of free entry of a national of any member state unless that national presents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society."
Charge on public funds:
"It appears that this is often understood as requiring the national seeking entry to have sufficient cash at hand. The court notes that not having sufficient funds available does not necessarily mean that the individual concerned will become a charge on public funds. Generally speaking, however, it would seem reasonable for the authorities to assess whether the visitor has funds available and whether these funds would suffice during the time the Community national intends to stay in the country, taking into account factors such as the availability of a credit card and whether or not the visitor is staying with a private person or at an establishment as a paying guest."
In spite of the CCJ ruling, there still remains a cloud over the right to free movement, which is clearly identifiable in Trinidad and Tobago's security minister's statement, who supported the deportation of 13 Jamaican nationals recently. The minister also emphasised that "this ultimately means that the immigration authorities of any member state may deny the entry of a CARICOM national where it has been determined on reasonable grounds that the entry of the person would be detrimental to the interests of its citizens".
Trinidad's National Security Minister Gary Griffith's statements serve to highlight continuing controversy linked to the right to free movement in CARICOM. As it stands, Trinidad and Tobago, like every other CARICOM member, has to carefully balance the preservation of its security and or economic interest with its obligation to free movement under the revised Treaty of Chaguaramas.
In this case, I can understand Trinidad and Tobago's stance. Whereas they owe a duty of care to all CARICOM nationals, this duty must be dispensed to their nationals first - and understandably so as it is the nationals who elect the government.
It is an open secret that some Jamaicans infiltrate their borders for economic gains. Trinidad and Tobago has the power to negate this, and they are merely doing such. Perhaps the Government of Jamaica could implement a number of policy reforms to revive its economy so its nationals will be inclined to stay and exploit subsequent opportunities.
From another vantage point, whereas Trinidad and Tobago reserves the absolute right to determine who enters its borders, the possibility exists for the immigration officials to exercise their duty with respect and treat deportees with dignity. While the meaning of free movement remains controversial within CARICOM, maybe a separate agreement for free movement is the solution to the current impasse associated with immigration.