Jesus Alexander Rodriguez Martinez (by his kin and next friend Luisa Del Valle Martinez Hernandez) and another v Chief Immigration Officer
| Jurisdiction | UK Non-devolved |
| Judge | Lord Stephens,LORD STEPHENS |
| Judgment Date | 14 July 2022 |
| Neutral Citation | [2022] UKPC 29 |
| Docket Number | Privy Council Appeal No 0104 of 2021 |
| Court | Privy Council |
[2022] UKPC 29
Lord Reed
Lord Kitchin
Lord Hamblen
Lord Stephens
Lord Lloyd-Jones
Privy Council Appeal No 0104 of 2021
Privy Council
Trinity Term
From the Court of Appeal of the Republic of Trinidad and Tobago
Appellants ( Jesus Alexander Rodriguez Martinez and Luisa Del Valle Martinez Hernandez)
Gerald Ramdeen
Tom Richards (Instructed by Dayadi Harripaul (Trinidad))
Respondent
Peter Knox QC
Fyard Hosein SC
Robert Strang (Instructed by Charles Russell Speechlys LLP (London))
Jesus Alexander Rodriguez Martinez (“Jesus” or “the first appellant”), a 15-year-old boy, and his mother Luisa Del Valle Martinez Hernandez (“Ms Martinez Hernandez” or “the second appellant”) arrived clandestinely to Trinidad and Tobago by boat. They had fled Venezuela and wished to claim asylum. They are currently detained by the Chief Immigration Officer (“the respondent”), at the Chaguaramas Heliport, Port of Spain, purportedly pursuant to the power of detention in section 16 of the Immigration Act Chapter 18:01 (“the Immigration Act”).
The appellants commenced proceedings under section 14 of the Constitution of the Republic of Trinidad and Tobago (Chapter 1:01) (“the Constitutional proceedings”) seeking protection for their right to seek asylum. In those Constitutional proceedings an interim High Court order was made restraining the State from taking any steps to remove the appellants from Trinidad and Tobago until the hearing and determination of those proceedings or any further order. The appellants also commenced Habeas Corpus proceedings (“the Habeas Corpus proceedings”) requiring the respondent to present proof of lawful authority to detain them. In the Habeas Corpus proceedings Madame Justice Mohammed (“the judge”) refused to order the release of either of the appellants because she was satisfied that the respondent's return to the writ had demonstrated a lawful basis for their detention under section 16 of the Immigration Act. The Court of Appeal dismissed the appellants’ appeal. The appellants now appeal to the Judicial Committee of the Privy Council with special leave granted by Lord Kitchin, Lord Sales and Lord Stephens on 1 February 2022 pursuant to section 109(3) of the Constitution.
There are three grounds of appeal. The first ground of appeal concerns Jesus. It is argued that there was no lawful basis to detain him as the power to detain in section 16 of the Immigration Act only arises in respect of any person if a deportation order has been made in respect of that person. It is accepted that until 16 March 2022 (on the eve of the hearing before the Board) no deportation order had been made in respect of Jesus. Accordingly, it is submitted that there was no lawful basis for Jesus's detention between the expiry on 15 December 2020 of his detention under a quarantine order (see para 12 below) and 16 March 2022.
The second ground of appeal concerns both appellants. It is a condition of detention under section 16 of the Immigration Act, in accordance with the principles stated by Woolf J in R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704 (“the Hardial Singh principles”), that if a person is detained then the detention must be “pending … deportation.” The appellants contend that as the interim order of Quinlan-Williams J dated 18 January 2021 (see para 19 below) in the Constitutional proceedings (“the 18 January 2021 Order”) restrained the State from taking any steps to remove the appellants from Trinidad and Tobago, there was no prospect of them being deported so that they could not be said to be detained pending deportation. Accordingly, on this basis they contend that their detention has been unlawful since the date of that order.
The third ground of appeal also concerns both appellants. It is contended that if either of them is being detained pursuant to section 16 of the Immigration Act pending deportation, then the period of detention has exceeded that which is reasonable in all the circumstances so that their continued detention is unlawful.
The appellants are both citizens of the Bolivarian Republic of Venezuela.
On 15 November 2020 the appellants left Venezuela in a pirogue, intending to seek asylum in Trinidad and Tobago. They arrived in Trinidad and Tobago on 17 November 2020 and were apprehended. On 22 November 2020 they were escorted out of Trinidadian waters by the Trinidad and Tobago Coast Guard in the boat on which they had arrived. However, on 24 November 2020 the appellants again returned to Trinidad and Tobago by boat and were arrested by members of the Trinidad and Tobago Police Service and detained. Their initial detention was under quarantine orders in connection with the COVID-19 pandemic. They were detained first at a health facility, then at the Erin Police station and finally at the Chaguaramas Heliport, which is a military facility also used for the purpose of COVID-19 quarantine measures and for the detention of persons under section 16 of the Immigration Act.
On 2 December 2020, the appellants commenced the Constitutional proceedings against the Attorney General (Claim No CV2020-04193 Jesus Alexander Rodriguez Martinez (by his kin and next friend Luisa Del Valle Martinez Hernandez) and Luisa Del Valle Martinez Hernandez v Attorney General of Trinidad and Tobago) seeking relief, including interim relief, under section 14 of the Constitution.
Following an ex parte hearing on the same date, the appellants were granted interim relief by the High Court (Charles J) restraining the State from “from taking any steps to remove the [appellants] from the jurisdiction during the period on quarantine fixed by the Chief Medical Officer.”
On 8 December 2020, the quarantine orders were extended to authorise the detention of the appellants until 15 December 2020.
On 15 December 2020, Ms Martinez Hernandez was interviewed by an Immigration Officer. Following the interview, the respondent determined that the appellants’ entry into Trinidad and Tobago was not in accordance with the Immigration Act. There is no dispute in relation to that determination and there is also no dispute in relation to the respondent's assertion that the appellants’ entry was also in breach of Trinidad and Tobago's COVID-19 regulations under the Public Health Ordinance Chapter 12 No 4.
The quarantine orders expired on 15 December 2020, but the appellants remained in detention at the Chaguaramas Heliport.
Furthermore, on 15 December 2020 upon an inter partes hearing in the Constitutional proceedings, the appellants were granted further interim relief by the High Court (Rahim J) restraining the State from “from taking any steps to remove or from removing the [appellants] from the jurisdiction until the hearing and determination” in the case of Valeria De Los Angeles Leon v Attorney General of Trinidad and Tobago No P326 of 2020 (“ Valeria De Los Angeles Leon”). This case concerned an application for interim relief in respect of a child by her mother as next friend. The child had entered Trinidad and Tobago on the same boat as the appellants and sought identical interim relief to the appellants in the Constitutional proceedings.
On 22 December 2020, the Court of Appeal (Boodoosingh and Aboud JJA) determined the civil appeal Valeria De Los Angeles Leon, allowing it, remitting the matter for substantive hearing before a different judge and restraining the State from removing the child claimant in that case from the jurisdiction in the interim.
On 12 January 2021, the appellants by their Attorney-at-Law sent the respondent pre-action letters stating that there was no lawful justification for their continued detention and that unless they were released by 8.00 am on 14 January 2021, Habeas Corpus proceedings would be issued.
Also on 12 January 2021, the Minister of National Security issued a deportation order against Ms Martinez Hernandez pursuant to section 11 of the Immigration Act. The deportation order was addressed to “Luisa Del Valle Martinez Hernandez” and it ordered her “to be detained and to be deported to the Bolivarian Republic of Venezuela.” It also ordered her to remain out of Trinidad and Tobago while it was in force. There is no mention in that deportation order of Jesus. In fact, no deportation order was issued against Jesus until 16 March 2022, on the eve of the hearing before the Board. That deportation order was addressed to “Jesus Alexander Rodriguez Martinez”, and it ordered him “to be detained and to be deported to the Bolivarian Republic of Venezuela.” It also ordered him to remain out of Trinidad and Tobago while the order was in force.
On 14 January 2021, the respondent replied to the appellants’ Habeas Corpus pre-action letters. In respect of Ms Martinez Hernandez, the respondent stated that as a person against whom a deportation order had been made, she was and continued to be lawfully detained pursuant to section 16 of the Immigration Act. In respect of Jesus the respondent stated that he was detained pursuant to an unwritten policy that in accordance with the United Nations Convention on the Rights of the Child, the Immigration Division operates as far as is reasonable to avoid the separation of parents and children.
The prohibition contained in the order dated 15 December 2020 restraining the State from removing the appellants from the jurisdiction had expired upon the determination of the civil appeal in the case of Valeria De Los Angeles Leon. Accordingly, on 15 January 2021 the appellants made an application in the Constitutional proceedings for the restraint of their deportation pending the...
To continue reading
Request your trial
-
Yohan Jesus Rangel Dominguez v Minister of National Security
...friend Luisa Del Valle Martinez Hernandez) and another (Appellants) v the Chief Immigration Officer (Respondent) (Trinidad and Tobago) [2022] UKPC 29 at paragraph 66, “the power of detention under Section 16 of the Immigration Act is impliedly limited to such period of time as is reasonabl......
-
Samih Tarek Soriti Benitez v The Chief of Defence Staff
...(by his kin and next friend Luisa Del valle Martinez Hernandez) and another v The Chief Immigration Officer (Trinidad and Tobago) [2022] UKPC 29. There is a distinct similarity between the operative factual matrix in this case and the factual matrix which was before the Board in Jesus (sup......
-
Legal Developments In Construction Law
...the contractor's witnesses A & A Mechanical Contractors and Company Ltd v Petroleum Company of Trinidad and Tobago (Trinidad and Tobago [2022] UKPC 29 6. HSE consultation on Building Inspector Competence The HSE is consulting on the Building Inspector Competence Framework (BICoF), which wil......