Naidike and Others v Attorney General of Trinidad and Tobago

JurisdictionUK Non-devolved
JudgeBaroness Hale of Richmond,Lord Brown of Eaton-under-Heywood
Judgment Date12 October 2004
Neutral Citation[2004] UKPC 49
CourtPrivy Council
Docket NumberAppeal No. 10 of 2003
Date12 October 2004
(1) Robert Perekebena Naidike
(2) Timi Naidike
and
(3) Boloebi Faith Roberta Naidike
Appellants
and
The Attorney General of Trinidad and Tobago
Respondent

[2004] UKPC 49

Present at the hearing:-

Lord Hope of Craighead

Lord Scott of Foscote

Lord Walker of Gestingthorpe

Baroness Hale of Richmond

Lord Brown of Eaton-under-Heywood

Appeal No. 10 of 2003

Privy Council

[Delivered by Lord Brown of Eaton-under-Heywood]

1

The first appellant (Dr Naidike) is a Nigerian citizen who in December 1990 qualified in Nigeria as a medical practitioner and on 17 February 1991, at the age of 28, came to Trinidad to take up an internship at San Fernando General Hospital. In the event he remained in the employment of the Ministry of Health, initially as a medical intern and then, from March 1992, as a temporary house officer, successively at San Fernando General Hospital, Point Fortin General Hospital and Port of Spain General Hospital, until 7 June 1995.

2

Pursuant to Regulations made under section 44 of the Immigration Act 1969 CHAP.18:01 (the Act) Dr Naidike was not permitted to "engage in any profession, trade or occupation whether for gain or not in Trinidad and Tobago or be employed in Trinidad and Tobago unless there is in force in relation to him a valid work permit" (regulation 10 (1)). It was further provided (by regulation 10 (2)) that his employer too would be committing an offence unless a valid work permit was in force. By regulation 10 (3) the application for a work permit has to be made by the employer.

3

Dr Naidike's entitlement to enter Trinidad and thereafter to remain was governed by section 9 of the Act:

"9(1) An immigration officer may allow to enter Trinidad and Tobago on such conditions and for such periods as may be fit and proper in any particular case, the following persons or classes of persons, as the case may be:

(c) tourists or visitors;

(i) persons entering Trinidad and Tobago for the purpose of engaging in a legitimate profession, trade or occupation.

(2) Subject to this Act, an immigration officer shall issue to a person who has been allowed to enter Trinidad and Tobago under sub-section (1) …, a certificate which shall be expressed to be in force for a specified period and subject to such terms and conditions as may be mentioned therein.

(3) Every person who has a certificate under sub-section (2) to enter Trinidad and Tobago and who wishes to remain for a longer period than that previously granted or to have the conditions attaching to his entry varied, shall, notwithstanding that he is already in Trinidad and Tobago, submit to an examination under the provisions of this Act, and the immigration officer may extend or limit the period of his stay, vary the conditions attaching to his entry, or otherwise deal with him as if he were a person seeking entry into Trinidad and Tobago for the first time.

(4) Where a permitted entrant is in the opinion of the Minister a person described in section 8 (1) (k), (l), (m) or (n), or a person who … (f) was admitted or deemed to have been admitted to Trinidad and Tobago under sub-section (1) and remains therein after the expiration of the certificate issued to him under sub-section (2) … the Minister may at any time declare that such person has ceased to be a permitted entrant and such person shall thereupon cease to be a permitted entrant.

(5) The Minister may make a deportation order against any person referred to in sub-section (4) …, and such person shall have no right of appeal and shall be deported as soon as possible."

"The Minister" is defined by the Act as the minister responsible for immigration, namely the Minister for National Security.

4

Dr Naidike was initially admitted to Trinidad for a month under section 9(1)(c) of the Act with a passport stamp stipulating "employment not permitted". On 11 March 1991, however, a one-year work permit was issued by the Ministry of National Security permitting Dr Naidike to remain in employment by the Ministry of Health until 24 February 1992 and it is to be assumed that his section 9(2) certificate was varied accordingly. Thereafter successive annual work permits were applied for by the Ministry of Health and issued by the Ministry of National Security, respectively on 12 March 1992 with retrospective effect from 17 February 1992, 18 February 1993 with effect from 17 February 1993, and 12 April 1994 with effect from 17 February 1994. All four permits specified as a condition that Dr Naidike be "repatriated at the end of the approved period" and the last three required in addition "that a national be trained as an understudy". The fourth and final work permit expired on 16 February 1995 and notwithstanding the Ministry of Health's application on 3 February 1995 for its renewal, no further permit was issued.

5

Dr Naidike's section 9(2) certificate was extended for the last time on 1 July 1994, extending his permitted stay in Trinidad, consistently with his final work permit, until 16 February 1995.

6

The course of events following the expiry of Dr Naidike's final work permit was, in outline, as follows. On 7 June 1995 he was told to stop work by a staff nurse at Port of Spain General Hospital acting on the instructions of the hospital's personnel officer, in turn acting on behalf of the Ministry of Health. On 21 September 1995 the Ministry of Health's application for a further work permit was finally refused. On 27 September 1995 Dr Naidike voluntarily attended the immigration office and was told by Police Corporal Marshall (on the instruction of Chief Immigration Officer Harper) that a work permit had been refused and that he should now make arrangements to leave the country. Thereupon Dr Naidike agreed to return to the office on 4 October 1995 with a valid departure ticket. In late October or early November 1995, following Dr Naidike's failure to attend on 4 October, Mr Harper gave instructions for him to be arrested for remaining in the country illegally. Those instructions were carried out on 28 November 1995 (after a failed earlier attempt on 15 November) when Dr Naidike was seen in his motor car and arrested by a number of police officers including Corporal Marshall and Constable Bartholomew. In the course of his arrest, which Dr Naidike sought to resist, both he and Constable Bartholomew suffered comparatively minor injuries. In the result, following his arrival at the police station, Dr Naidike was rearrested and charged with assaulting Police Constable Bartholomew in the execution of his duty. He was then taken to Port of Spain General Hospital under police guard.

7

On 4 December 1995, Dr Naidike issued a writ of habeas corpus. The return to the writ, made on 7 December, is an important document and must be set out in full:

"We, ARTHUR HARPER, NEIL BARTHOLOMEW and GERARD MARSHALL in obedience to the writ do certify and return that Robert Perekebena Naidike is detained at the Port of Spain General Hospital under police guard and that he is charged with a criminal offence with assaulting a police officer, Police Constable Neil Bartholomew in the execution of his duty.

Mr Naidike was lawfully arrested and detained by Corporal Gerald Marshall pursuant to the provision of section 15 of the Immigration Act Chap. 18:01 which empowers a police officer to arrest and detain for an inquiry any person who upon reasonable grounds is suspected of being a person referred to in section 9(4) or section 22(1)(i).

At the time of his arrest Mr Naidike was suspected to be in breach of the provisions of section 9 (4) of the Immigration Act Chap. 18:01 on the grounds that he has remained in the country beyond the period permitted him by the Immigration Department.

On July 17, 1994 Mr Naidike was permitted to remain in Trinidad and Tobago up to February 16, 1995 and since that date he has been given no further extension.

Upon arrest under section 15 of the Immigration Act Chap. 18:01 a person in respect of whom an inquiry is to be held may be detained pending said inquiry.

However, Mr Naidike is warded at the Port of Spain General Hospital under police guard since Sunday December 2nd, 1995 and has not yet been brought before a Magistrate to answer the criminal charge nor has any inquiry under the Act been held."

8

Their Lordships have already set out section 9 (4) of the Act. The other two sections referred to in the habeas corpus return provide as follows:

"15 Every police officer and every immigration officer may, without the issue of a warrant, order or direction for arrest or detention, arrest and detain for an inquiry or for deportation, any person who upon reasonable grounds is suspected of being a person referred to in section 9(4) or section 22(1)(i), and the Chief Immigration Officer may order the release of any such person.

22(1) Where he has knowledge thereof, any public officer shall send a written report to … the Chief Immigration Officer in respect of paragraphs (d) to (i), with full particulars concerning

(f) any person, who, being a permitted entrant, has been declared by the Minister to have ceased to be such a permitted entrant under section 9(4);

(i) any person other than a citizen of Trinidad and Tobago who either before or after the commencement of this Act came into Trinidad and Tobago at any place other than a port of entry or has eluded examination or inquiry under this Act."

9

On 8 December 1995 Warner J dismissed Dr Naidike's habeas corpus application. Although on 14 December Dr Naidike lodged a notice of appeal against that order, he did not thereafter pursue it.

10

Meantime, on 12 December 1995, Dr Naidike had been released from hospital and brought before the magistrates' court in respect of the assault charge. Although this was a bailable offence and the matter was to be adjourned for a week, the magistrate, on being shown a detention order signed that...

To continue reading

Request your trial
43 cases
  • [1] Siobahn Nicola Gillespie [2] Citco BVI Ltd Claimants v The Minister of Natural Resources and Labour Defendant
    • British Virgin Islands
    • High Court (British Virgin Islands)
    • 19 Abril 2013
    ...reflected in R v Assistant Commissioner of Police of the Metropolis Ex P Howell [1986] R.T.R 52 which was applied in Naidike v Attorney General of Trinidad and Tobago [2004] UKPC 49. In the latter case, the Judicial Committee held that the Claimant who had been granted work permits for a ......
  • HH v Deputy Prosecutor of the Italian Republic, Genoa
    • United Kingdom
    • Supreme Court
    • 20 Junio 2012
    ...AC 115 and EB (Kosovo) v Secretary of State for the Home Department [2009] AC 1159 and the Privy Council decision in Naidike v Attorney General of Trinidad and Tobago [2005] 1 AC 538. The Strasbourg jurisprudence, again in the context of immigration control, was also analysed. Baroness Hal......
  • R (on the Application of MA (Pakistan) and Others) v Upper Tribunal (Immigration and Asylum Chamber) and Another
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 7 Julio 2016
    ...parents has no right to remain in the UK. After having regard to certain observations of Lady Hale in ZH (Tanzania) and Naidike v Attorney General of Trinidad and Tobago [2004] UKPC 49; [2005] 1 AC 538, Lord Justice Lewison summarised his conclusion as follows (para.58): "In my judgment, t......
  • Upper Tribunal (Immigration and asylum chamber), 2017-04-06, DA/00146/2013
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 6 Abril 2017
    ...against the deportation of the foreign parent of a child who is a citizen of the deporting state: Naidike v Attorney General of Trinidad [2005] 1 AC 538, at (e) In EU Law, a similar principle has been articulated by the CJEU, in Case C-63/99 (R (Gloszczuk) v Secretary of State for the Home ......
  • Request a trial to view additional results
4 books & journal articles
  • Constitutional damages, procedural due process and the Maharaj legacy : a comparative review of recent Commonwealth decisions (part 2)
    • South Africa
    • Southern African Public Law No. 27-1, January 2012
    • 1 Enero 2012
    ...was entitled to damages where he was denied ahearing before dismissal in violation of regulation 118 of the Civil Service Regulations.[2005] 1 AC 538 (PC) 549 para 30.14There are two decisions of the High Court of Ireland that were decided differently. Damages were15awarded in Healey v Mini......
  • Bureaucratic bungling, deliberate misconduct and claims for pure economic loss in the tender process
    • South Africa
    • South Africa Mercantile Law Journal No. , September 2019
    • 25 Mayo 2019
    ...DLR (4th) 193 (SCC); Clive LewisJudicial Remedies in Public Law (1992) 379.80Although Naidike v Attorney-General of Trinidad and Tobago [2005] 1 AC 538 (PC) para30 was decided on a constitutional motion, similar principles applied. It was held that theadministrative decision not to grant a ......
  • ‘Australian Exceptionalism’ in Judicial Review
    • United Kingdom
    • Federal Law Review No. 36-1, March 2008
    • 1 Marzo 2008
    ...Council, The Bahamas); Lewis v A-G (Jamaica) [2001] 2 AC 50, 83–5, cf 88–9 (Privy Council, Jamaica); Naidike v A-G (Trinidad and Tobago) [2005] 1 AC 538, 558-60 [72]-[77] (Baroness Hale of Richmond). The Privy Council has not yet applied the Teoh approach as ratio in any case, but it appear......
  • Custody
    • Jamaica
    • Family Law in Jamaica
    • 18 Agosto 2018
    ...Belize, is called the welfare checklist,70 is readily embraced and employed by the Jamaican 65. See below.66. See N and N v AG (2004) 65 WIR 372.67. [1893] 1 Ch. 143.68. But see Lord v Lord (1981) 18 JLR 288; and Simpson v Condappa (1988) 25 JLR 44.69. Not found in the custody legislation, ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT