EASTERN CARIBBEAN SUPREME COURT
TERRITORY OF THE VIRGIN ISLANDS
IN THE HIGH COURT OF JUSTICE
(CIVIL)
CLAIM NO. BVIHCV 2013/0324
IN THE MATTER OF SECTION 40(1) (B) OF THE IMMIGRATION AND PASSPORT
ORDINANCE CAP 130
AND
IN THE MATTER OF ARTICLE 9 AND 19 OF THE CONSTITUTION OF THE VIRGIN
ISLANDS [2007]
AND
IN THE MATTER OF STATUTORY INSTRUMENT NO. 72 OF 2013- DEPORTATION
ORDER DATED THE 1″ NOVEMBER, 2013 AND GA2ZETTED ON 7′” NOVEMBER,
2013
AND
IN THE MATTER OF AN APPLICATION BY TOVA NAKOTA KING FOR REDRESS
PURSUANT TO ARTICLE 31 OF THE SAID CONSTITUTION, FOR THE LIKELY
CONTRAVENTION OF ARTICLE 9 AND 19 THEREOF, IN RELATION TO HIM
BETWEEN:
[1] TOVA KING
[2] NATASHA O’NEAL KING
(as next friend for Nakita Toveisha King and
Tova Nakota King Jr.)
[3] NAKITA TOVEISHA KING
[4] TOVA NAKOTA KING JR.
And
THE ATTORNEY GENERAL
1
Claimants
Defendants
Appearances:
Mr. Patrick Thompson for the Claimants
Mrs. Kaidia Edwards-Alister with her Mrs. Sarah Potter for the Defendants
2014. May 20:
July 2
JUDGMENT
[1[ BYER J.:- This claim was commenced by way of an Originating Motion filed on the
8th day of November 2013, the motton was re-amended on 28th day of February
2014; and again re-re-Amended on the 15• April2014.
[2[ The parties relied on the re-re-Amended Molton which sought the follow1ng reliefs
pursuant to Part 56 of the Civil Procedure Rules (2000):
(1) An order that Statutory Instrument No. 72 of 2013 dated the 1″ of November
2013, is a disproportionate interterence with the claimants’ fundamental nght
to private and family life as enshrined in Article 9 and 19 of the Virgin
Islands Constitution Order (2007)
{2) An order for a writ of certiorari, quashing the Governor’s decision to proceed
with the order for the First Clarmant’s deportation as set out in his letter of
13th February 2014.
(3) A declaration that the First Claimant’s deportation is a disproportionate
interterence with the claimants’ fundamental right to pnvate and family life
as enshrined tn Article 9 and 19 of the Virg1n Islands Constitution Order
(2007).
(4) An order for certiorari quashing Statutory Instrument No. 72 of 2013 dated
the 1 ;t of November 2013, ordenng the first claimant’s deportation from the
Territory.
(5) Damages for the humiliation and distress occasioned by the attempted
removal of the First Clatmant from the Territory by the servants and/or
agents of the Chief Immigration Officer on or about 21″ February 2014, and,
for the first claimant’s unlawful detention at the Virgin Gorda Police Station
between 5:00p.m and 11:00 p.m on 21″ February 2014
(6) Costs.
2
[3[ Prior to the matter coming on for heanng of the substantive matters under the
Originating Motion, an attempt was made by the servants or agents of the
Immigration Department to remove the First Claimant on the 21” February 2014.
Thus, by order of lhts court dated the 21” day of February 2014. Her Ladyship
Madam Justice Vicki Ann Ellis upon hearing an application for interim injunctive
relief, restrained the Chief Immigration Officer, his agents or assigns from
removing the first claimant from the Territory of the Virgin Islands pending the full
hearing of the said application for injunctive relief. This injunction was extended on
the 71h March 2014 until the final hearing and determination of the substantive
matter.
[4] The original Originating Motion having been amended, the sole issues for
determination for this Court were therefore as identified in the re- re-amended
originating motion in relation to which the hearing was held on the 2Qth day of May
2014.
[5] In an attempt to follow the events that led to the order of His Excellency the
Governor sanctioning the deportation of the First Claimant, 11 is indeed helpful to
establish a chronology as follows:
(a) 21″ April 2011 · the First Claimant moves to the Territory of the Virgin
Islands from the Federation of St. Chnstopher and Nevis.
(b) 11′” June 2011 – The First Claimant pleads guilty to possession of 21
grams of cannabis seeds, contrary to section 7(1) of the Drugs (Prevention
of Mtsuse) Act, Cap 178. He was sentenced to pay a fine of $500 00, or 3
months imprisonment. The fine was duly paid.
(c) 21″ June 2011 ·The Ftrsl Claimant marries the Second Claimant at the
Valley, Virgin Gorda. At the time of the marrrage, the Second Claimant, the
mother of 2 chtldren, Lasean Allen and Michael Woodley became step
children of the First Claimant. Subsequently, the Third Cla1mant is born on
the 22″‘ of January 2012; and, the Fourth Claimant on the 11 lh of December
2013.
(d) 28′” November 2012 – The First Cla1mant is served with a Notice of
lntentton to Deport, pursuant to Section 40(1)(b) of the Immigration and
Passport Act. Thts Notice of Intention to Deport appeared to be premised
on the First Claimant’s conviction for possession of the cannabis seeds as
aforesaid.
3
(e) 11th December 2012- by a letter of this date, the First Claimant through his
legal practitioners writes to the Governor indicating the reasons why he
should not be deported from the Territory. This letter was four days past the
limit given by the Governor, and sets out the reasons why the deportation
should not proceed
(f) 28th October 2013- the Governor indicates to the Frrst Claimant that he
proposes to proceed to make an order for the First Claimant’s deportation
from the Territory.
(g) 7′” November 2013 – the First Claimant rs served with a copy of the
Governor’s letter of 28• October 2013, and he is deported from the Temtory
on 7′” November 2013 inside the proscribed time frame set for the appeal
against the deportation order which resulted in this purported deportation
being unlawful.
(h) 7′” November 2013- The First Cla’tmant by his legal pract’ttioners wrtte to
the Governor indicating, that the deportation effected on the 7th November
2013 was unlawful and an intentron that an appeal would be lodged agarnst
the said deportation order, and, requesting copies of the Police Records
referred to by the Governor in his letter of 281″ October 2013.
(i) 81″ November 2013- the First Claimant filed the original Originating Motion.
OJ 181″ November 2013 – the Governor writes to the First Claimant’s legal
practitioners indicating that permission will be granted to the First Claimant
to return to the Territory for the purpose of pursuing his appeal against the
order for his deportatton. The Governor extended the period for filing the
said appeal to 7 days from the date of the Frrst Claimant’s return to the
Territory which was affected on the 21″ November 2013
(k) 26th November 2013 – The Ortginating Motion that was filed on 8′”
November 2013 came on for hearing. At this hearing before this Court
judgment was entered in favour of the First Claimant for damages for his
unlawful removal from the Territory. The First Claimant applied to have the
damages assessed and the hearing date of the 19• February 2014 is set.
(I) December 2013 • February 2014 – there is an exchange of
correspondence between the First Claimant’s legal practitioners and the
Governor. On 7′” February 2014, a hearing was convened by the Governor,
the Frrst Clarmant and his legal practitioner attend the hearing and
4
representations are made to the Governor to set aside the deportation
order.
(m) 13th February 2014- the Governor indicates that the deportation order w1ll
stand.
(n) 19′” February 2014- the F1rst Claimant is given leave to file an amended
Originatmg Motion, before the 26~’ of February 2014, and, the hearing of the
Originating Motion is set down for case management on 15″ April2014.
(o) 21″ February 2014- Officers Stevens and Hillhouse, from the Immigration
Department, attend upon the home of the First Cla1mant in Virg·m Gorda and
take him into custody. They mdicate that the deportation order is to take
effect on the Saturday, 22″‘ February, 2014, and, keep the First Claimant in
custody at the Virgin Gorda Police Station for this purpose.
(p) 21″ February 2014- an urgent applicat1on for injunctive relief IS filed by the
First Claimant’s legal practitioners seeking to restrain the Immigration
Department from removing the First Claimant from the Territory, pending the
hearing and determination of the filed Originating Motion. Madam Justice
Ell1s hears the application and orders that the First Claimant is not to be
removed until March 7’h 2014.
(q) 7’h March 2014 – Madam Justice Ellis orders the continuation of the
injunction, restraining the immigration Department from removing the First
Cla1mant from the Terntory, pending the hearing and determmation of the
Originating Motion in this matter. Case management directions are given on
March 7th 2014, and the Originating Motion is set down for hearing on 151h
Aprll2014.
(r) 15th April 2014- the First Claimant is granted leave to add the Second to
Fourth Claimants to the proceedings and the matter is set down for hearing
on the 21″ May 2014, but brought forward for heanng to the 20• May 2014
The Claimants’ Submissions
[6] The Claimants in their Skeleton Argument for the hearing of the re- re-amended
Originating Motion, filed on the 15lh April 2014, bolstered by the oral submissions
made by Counsel Mr. Patrick Thompson, sought to structure their arguments
around the claims as staled in the aforementioned motion. Thus, the two main
issues which encapsulated the prayers as sought which were advanced by the
Claimants were: (i) whether the removal of the First Claimant pursuant to the order
5
of deportation was a disproportionate interference with his and his family’s
constitutional right to private and family lrfe: and (ri) whether the First Claimant is
entitled to damages for h1s detention at the Virgin Gorda Police Station on 21″
February 2014 for 6 Y, hours.
Disproportionate Interference with the Constitutional Right to Private and Family
Life
[7] Counsel for the Claimants in advancrng thrs issue submitted to this Court that he
was not purporting to suggest that the Governor of the Territory could not or was
not empowered to make a deportation order but that specifically, in makrng that
order in the instant case, it was a disproportionate interference (being excessive)
with the constitutional right of the First Claimant to a prrvate and family life.
[8[ Counsel submitted that in assessrng whether the actron of the Governor was
disproportionate, he invited this Court to consider the right being sought to be
protected was not abstract but one which engaged the rights of his family – his
wife, his children and step children, and therefore the action must be taken in the
context of their rrghts as well
[9] Counsel further submitted to this Court that the 1ssue of proportionality must be
assessed based on the effect that the order would have on the Claimants as a
fam1ly unit Counsel Mr Thompson submitted that there being no allegation that
the familial unit, of which the First Claimant is a part, was not a genuine and
subsisting unit meant that in these circumstances it was unconscionable to
proceed to sever that unit by issuance of the deportation order.
[10] Counsel Mr Thompson strenuously argued that the separation of the Third and
Fourth Claimants, the children of the F11st and Second Claimant from the First
Claimant was not warranted in the present circumstances and he sought to
1m press upon the Court that the interference in that family life resulted in the entire
family being disrupted and they all should be regarded as “victims.”‘
[11] Counsel Mr Thompson asked this Court to perform the necessary balancing act
between the right and the basis for the interference wrth the right By dorng so, he
has invited this Court to assess the reason given for the deportation against the
impact that the making of the order would have on the family members. Counsel
was clear to state that there can be no preservation of those fam’1ly rights with the
First Claimant being required to reside elsewhere.
1 Bekou-Betts v Secretary of State for the Home Department [2009] AC 115
6
[12] Further, Counsel Mr. Thompson submitted to this Court the process by which the
deportation order was made by the Governor was flawed for the following reasons:
a) the police reports upon which the Governor purportedly relied on to corne to the
conclusion that the First Claimant was an undesirable individual to remain in the
Territory were never presented to the First Claimant and his legal practitioners to
enable them to respond to the same; b) that in any event, the nature of the
complaints that formed the basis for those reports once presented showed that no
criminal charges were ever brought against the First Claimant; c) the offence that
led to the issue of the deportation order originally, although was serious in its
general nature was in the context of the First Claimant so minimal as was reflected
1n the f1ne imposed for the same, d) that there was nothing to suggest that the
removal of the First Claimant from the Territory was necessary to prevent crime
and disorder in the Territory and that if the proper test had been applied to find
whether the F1rst Claimant posed such a threat to soc1ety (the test of whether the
First Claimant would have caused disorder or engage in criminal activity) the
find1ngs would have led to one conclusion -that he was not such a threat
[13] Finally, Counsel Mr. Thompson submitted that the Claimants have satisfied all the
criteria that were identified by the Court in the authorities that he relied on against
the making of a deportation order and that the disadvantages far outweighed the
necessity of making the order, and as such, the Court should make the orders
prayed for in the cia 1m
Damages for Detention
[14] Under the issue of damages, the First Claimant made a claim for damages for the
humiliation and distress suffered to him and h1s family by the attempted removal
from the Territory on the 21>1 February 2014, and the tirne spent on detention.
[15] Counsel Mr. Thompson asks this Court, once it finds that the deportation order
was not properly made or should not have been made, that the First Claimant is
entitled to damages for the unlawfulness of the actions taken pursuant to that
order.
[16] The First Claimant has therefore invited this Court to approach the assessment of
the same along the lines of that adopted in the case of Thompson & Hsu v
Commissioner of Police of the Metropolis2 and award the First Claimant the
sum of $3,900.00.
2 [1998]1QB 498
7
The Respondent’s Submissions
[17] The Respondent’s summary of the facts did not dispute the Clarmant’s versron,
however, on the Respondent’s behalf slightly different issues were raised. The
Respondent saw the issues for the Court as being the following (i) whether
Section 40(1) of the Immigration and Passport Ordinance Cap 130 (the Act)
violates the Applicants rights under Articles 9 and 19 of the Virgin Islands
Constitution order; and (ii) whether it was proportronale to deport the Applicant.
[18] Desprte being framed in slightly different ways, this Court is of the view that the
parties raised the same issues for the Court although the approach differed. Thus,
the Respondent in making their address to the Court sought to rely on certain
questions which they said the Court had to ask itself in coming to a decision in
relation to the actrons of His Excellency.
[19] These questions were as follows:
1. Wrll the proposed removal be an interterence that suggests that the right to
private and family life would be possibly contravened?
2. If there is such interference is it in keeping with the law?
3. Is such interference necessary in the interests of national security, public
safety and other such considerations;
4. If so, is that interterence proportionate to the legitrmate public end sought to
be achreved.
[20] The Respondent submrtted to this Court that they accepted that the Claimant like
any other member of this Territory is entitled to the fundamental rights and
freedoms in respect to private and family life as enshrined in the Constitution.
They however make it clear that these rights are not absolute and can be
interfered with where it can be so justified.
[21] The Respondents defended the action of His Excellency in making the deportation
order on the basis that the conviction of the First Claimant for the offence of
possession of Cannabis seeds brought him within the very clear tenets of Section
40 of the Act whrch taken together with the “undesirable behaviour’ of the First
Claimant meant that he fell wrthin the exception to the protection of the right to a
private and family life and that interference was in all ways in the interests of public
safety.
8
[22] The Respondent also sought to argue that the First Claimant in fact had no settled
family life in that he was not employed nor was he or his wife in the process of
building a home. It was a short marriage w1th young children who could easily and
rightfully migrate with him As such, there was therefore no unjustified interterence
in his rights.
[23[ The Respondent also sought to submit to th1s Court that the gravity of a
deportation order and whether its consequences resulted in the deprivation of
some rights of the individual had to be balanced against the rights of a state to
expel undesirable aliens.
[24] Counsel for the Respondent, Ms. Sarah Potter and Mrs. Kaidia Edwards-Aiister
sought to impress upon the Court that the right of the state to expel undesirable
aliens is part and parcel of the State’s entitlement to protect its borders and to
ensure that they retain as part of their ultimate sovereignty the decision making
process as to who can and cannot remain within its domain
[25] The Respondent argued that this must be necessary in order for a State to protect
itself and that even if it was an 1nterterence with those fundamental rights, that it
can only be seen as being a necessary evil.
[26] In assessing the criteria for deportation the Respondent made it clear that they
considered that the Claimants and the First Claimant in particular had fulfilled the
criteria in favour of his deportation. They submit that: (i) the seriousness of the
offence of which he was convicted; (ii) the police reports made against him since
the ccnviction although no charges were brought; (iii) that he had only been in the
Territory for three (3) years; (iv) that he is K1t11an and that his wife and children
could also obtain that citizenship; (v) that although he is married with children that
he has no other family life; (v1) that the birth of the second child was after he was
already convicted; (vii) that the children are young and could therefore adapt to the
new environment of St Kitts; (vi1i), and that the legal entitlement of the Second
Claimant to her property in Virgin Gorda would not be affected as any migration
would not intertere w1th those nghts, all amounted to factors which allowed the
order to be made.
[27] In assessing these factors, the Respondent submitted therefore that the act of
deportation could not be seen as a disproportionate exercise of His Excellency’s
discretion.
[28] The Respondent also argued that the interterence has been in keeping with the
Act and Section 40 thereof with the requisite safeguards to allow for the affected
9
person a right to be heard, and he being in fact heard, meant that His Excellency
was entitled to make a determination to issue the deportation order as he did.
[291 The Respondent further submitted to this Court that in an attempt to protect the
safety and well being of society at large it was necessary to wield this power to
ensure that public order is maintained.
[301 In order to do, so they submit that unfortunately at times the rights of ind1v1duals
may be compromised, but in that compromise, once it is done in keeping with the
law that allows such action, then 1t cannot be argued that it is disproportionate.
[31] In their words, “as a non citizen under immigration control the most
reasonable way to accomplish the goal of prevention of crime and further
disorderly conduct is to deport the Applicant,'”
[321 Thus, they submit that the interference ‘” the rights of the Claimant was
proportionate and should stand.
1331 In relation to the issue of damages on the bas’1s that there was a valid deportat1on
order, the Respondent submitted that the Claimant would not be entitled to
damages.
Court’s Analysis and Finding
[341 I do not think that it is in any doubt that this Court 1s entitled to review the decision
made by the Governor of this Territory in issuing the Deportation order by way of
Virgin Islands Statutory Instrument 72 of 2013 dated 1″ November 2013, made
pursuant to Section 40(1) (b) and (c) of the lmm1grat1on and Passport Ordinance
Cap. 130 (the Act)
[351 The question for th1s Court however, must be the nature of the rev1ew and what is
required by this court in making that assessment.
[361 In the case of R (on the application of Razgarl v The Secretary of State for
Home Department 4 the House of Lords recognized that this role must be
supervisory and done with careful scrutiny given the nature of the complaint. It
had this to say at paragraph 16therein, ….. on an application for judicial review
of the Secretary of State’s decision (herein the Governor’s decision) to
3 Paragraph 47 of the Respondent’s submissions filed 13 May 2014
4 [2004]UKHL 27
10
certify the court is exerctsmg a supervisory jurisdiction, although one
involving such careful scrutiny as is called for where an irrevocable step,
potentially involving a breach of fundamental human rights, is in
contemplation.”
[37] Thus by paragraph 17 of R (on the Application of Razgar)5 case, certain
questions were posed that had to be borne in mind by the reVIewing Court in
matters of lh1s nature and which I am also prepared to accept wholesale to the
matter at hand with them in mind:
1. “Will the proposed removal be an interference by a public authority with
the exercise of the applicant’s right to respect for his private or (as the
case may be) family life?
2. If so, will such interlerence have consequences of such gravity as
potentially to engage the operation of Article 8?
3. If so, is such interlerence in accordance with the law?
4. If so, is such interference necessary in a democratic society in the
interests of national security, public safety or the economic wellbeing of
the country, for the prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and freedom of
others?
5. If so, is such interference proportionate to the legitimate public end
sought to be achieved?”
[38] The Court notes that the reference to Article 8 of the European Convention on
Human Rights is in very similar terms to Section 19 of the Constitution of the Virgin
Islands upon which, together w1th Section 9, have been relied upon by the
Claimants.
[39[ I set out in their entirely Sections 9 and 19 of the Constitution as follows.-
5 Op cit
“9. Whereas every person in the Virgin Islands is entitled to the
fundamental rights and freedoms of the individual;
Whereas those fundamental rights and freedoms are enjoyed
without distinction of any kind, such as sex, race, color, language,
religion, political or other opinion, national, ethnic or social origin,
association with a national minority, property, family relations,
11
economic status, disability, age, birth, sexual orientation, marital
or other status, subject only to prescribed limitations;
Whereas it is recognized that those fundamental rights and
freedoms apply, subject to respect for the rights and freedoms of
others and for the public interest, to each and all of the following,
namely:-
(a) Life, equality, liberty, security of the person and the
protection of the law;
(b) Freedom of conscience, expression, movement, assembly
and association; and
(c) Protection for private and family life, the privacy of the home
and other property and from deprivation of property save in
the public interest and on payment of fair compensation;
Now, therefore, it is declared that the subsequent provisions of
this Chapter shall have effect for the purpose of affording
protection to the aforesaid rights and freedoms, and to related
rights and freedoms, subject to such limitations of that protection
as are contained in those provisions, being limitations designed to
ensure that the enjoyment of the protected rights and freedoms by
any individual does not prejudice the rights and freedoms of
others or the public interest.”
Protection of private and family life and privacy of home and other property
19.- (1) Every person has the right to respect for his or her private
and family life, his or her home and his or her
correspondence, including business and professional
communications.
(2) Except with his or her own consent, no person shall be
subjected to the search of his or her person or properly or
the entry by others on his or her premises.
(3) Nothing in any law or done under its authority shall be held
to contravene this section to the extent that it is reasonably
justifiable in a democratic societya)
in the interests of defence, public safety, public
order, public morality, public health, town and
12
country planning, the development of mineral
resources, of the development of utilisation of any
other property in such manner as to promote the
public benefit;
b) for the purpose of protecting the rights and freedoms
of other persons;
c) to enable an officer or agent of the Government of the
Virgin Islands, a local government authority or a body
corporate established by law for public purposes to
enter on the premises of any person in order to
inspect those premises or anything on them for the
purpose of any tax, rate or due or in order to carry
out work connected with any property that is lawfully
on those premises and that belongs to the
Government of the Virgin Islands or that authority or
body corporate, as the case may be;
d) to authorise, for the purpose of enforcing the
judgment or order of a court in any proceedings, the
search of any person or property by order of a court
or the entry upon any premises by such order; or
e) for the prevention or detection of offences against
the crimina/law or the customs Jaw.”
[40] As can be seen, Section 9 enshrines the nghts and freedoms of individuals of thiS
Territory while Section 19 speaks specifically to the enshrined right of private and
family life.
[41] It 1s therefore pellucid that the Constitution of the Virgin Islands (the Constitution)
protects those rights to private life and family l1fe, but it is also very clear and
generally accepted that they are not absolute nghts and as stated 1n Section 9 are
subject to such limitations as are necessary to not prejudice the rights and
freedoms of others or the public interest.
[42] It is therefore very clear that only if an action can be sanclioned as be1ng w1thin the
public interest will it be considered a legitimate interference with those
fundamental rights and freedoms.
[43] I do not think therefore, on the words contained 1n the Constitution itself, that it can
be diSputed by the Respondent that the Claimants in thiS case are entitled to such
13
rights and freedoms. This Court is now therefore charged with reviewing whether
the Act of His Excellency intertered with those nghts and freedoms and if it did,
whether it was justified in the public interest.
[441 In address1ng my mind to this fundamental issue, the questions itemized by the B
(on the application of RazgarJ case6 are indeed instrumental and I propose to
adopt and adapt those quest1ons to undertake this exercise.
Will the proposed removal be an interlerence by a public authority
with the applicant’s right of respect for the private or family life?
1451 I do not think that it can be questioned that the Claimants have established a
family life.
[461 The F~rst and Second Claimants are married and have added to their family unit
with the birth of the Third and Fourth named Claimants.
[471 It is indeed therefore an odd submission to hear Counsel for the Respondent stale
to this Court and repeat it several times that these persons do not represent family
life as would be protected by the Constitution. This Court is struck by the
incongruity of this assertion, where there is no committant submission as to what
more could be required to establish a family life.
[481 Neither IS this Court aware of any other act on the part of the Claimants that could
have been undertaken to amount to be considered a family life. In that regard, this
Court completely rejects this submission on the part of the Respondent The unit
that has been created by the Claimants must be and without more be considered
as having established a family life.
[491 Having so established that, without more, this Court is also of the opinion that the
proposed removal of the First Claimant would therefore effectively break up this
established family unit. There would therefore be, without the requirement to
prove more at this stage, an interference with the Claimant’s right to private and
family life Having so determined, the Court must now move onto the next
question
6 Op cit
If so, will such interference have consequences of such gravity as to
potentially engage the operation of Article 8 or Article 19 of the
Constitution?
14
[50[ Article 8 of the European Convention on Human Rights states as follows:-
“Right to respect for private and family life
1. Everyone has the right to respect for his private and family life,
his home and his correspondence.
2. There shall be no interference by a public authority with the
exercise of this right except such as in accordance with the law
and is necessary in a democratic society in the interests of
national security, public safety or the economic well being of the
country for the prevention of disorder or crime for the protection
of health or morals or for the protection of the rights and
freedoms of others”
[51[ In large measure, Article 8 of the European Convention on Human Rights (Article
8) speaks to the same fundamental rights and freedoms of the individual
encapsulated in Section 19 of the Constitution.
[52[ Thus, when this Court looks at the end result the removal of the First Claimant
would have on the Claimants, it is clear it would amount to an interference of the
rights to private and family life. It would effectively not remove a nonessential
member of the family unit, but the de facto and in some minds the de jure head of
the unit itself, the husband and father.
[53] It is therefore clear in this Court’s mind that such interterence would engage the
rights protected by the Constitution Those rights being engaged 11 is for the
person who has sought to intertere with the right to justify the same.
[54] Thus for the Court, the next question that must be addressed to the decision
maker is:
Is such interference in accordance with Jaw?
[55[ By Section 40 of the Immigration and Passport Act Cap 130 of the British Virgin
Islands (the Act) provision is made for the deportation of persons from the
Territory.
[561 Section 40 states as follows:
“(1) Subject to the provisions of sections 41 to 44 inclusive, if at any
time after a person, other than a person deemed to belong to the
Te”itory, has landed in the Territory, it shall come to the knowledge
of the Governor that such person:-
15
(a) has landed or remained in the Territory contrary to any
provisions of this Ordinance;
(b) has been convicted of any offence against this ordinance,
or of any other offence within the Territory punishable
with imprisonment for three months or more;
(c) is a person whose presence in the Territory would in the
opinion of the Governor, acting after consultation with the
Chief Immigration Officer, be undesirable and not
conducive to the public good;
the Governor may make an order (hereinafter referred to as the
“deportation order)” requiring such person to leave the Territory
within the time fixed by the deportation order and thereafter to
remain out the Territory.
(2) In the exercise of the powers conferred upon him by subsection
(1), the Governor may act in his discretion in any matter where
he deems it necessary to do so.
(3) Where a deportation order is made in respect of a person who
immediately before the making thereof was lawfully within the
Territory under this Ordinance, a copy of the order shall be
served upon him by an immigration officer or by any police
officer and he shall be entitled within the period of seven days
next following the date of such service to appeal in writing to
the Governor against the making of the order.” (my emphasis
added)
[57] II is therefore clear and 11 is common ground as between the parties that the
interterence by deportat1on is provided by the law.
[58) Once the person aga1nst whom the deportation order has been 1ssued fulfills one
or more of the criteria in Sect1on 40 (t) then 11 is not disputed that the order can be
made. It is however a discretionary act on the part of the Governor who has the
lawful authority.
[59) This ability to act must be seen as part and parcel of the State’s ability to protect
their sovereignty and regulate persons who may or may not remain within their
borders.
16
[60] This having answered that the interference is provided for by the legislative
framework, the next question must therefore be whether the same was in fact
necessary.
Was it reasonably justifiable in a democratic society in the interests
of public order and prevention of crime?
[61] The act1on of the decision maker must be looked at as to whether the same is
“reasonably justifiable7” in a democratic society. Thus, the decision must be
assessed as to whether it was 1n the mterests of defence, public safety, public
order or for the prevention or detection of crime. In order to so answer, the basis
for the decision must therefore be examined.
[62] By letter dated the 28th November 2012, the First Claimant was notified that he
could be deported due to his conviction on the 11th day of June 2011 for
possession of cannabis contrary to Section 7 of Drug (Prevention of Misuse)
Ordinance Cap. 178 upon which he was fined the sum of $500.00 in default of
which payment he would have had to spend three (3) months in prison.
[63] It 1s clear from the decision of His Excellency that he considered as a result of this
convicf1on the F1rst Claimant had met the criteria for deportation pursuant to
Section 40 of the Act.
[64] His Excellency in making his decision after considerat1on of the appeal by the First
Claimant made it clear in his letter of the 13th February 2014 that he had found the
First Claimant remaining in the Territory was contrary to the public good and that
upon the basis of the conviction and his “pattern of undesirable behavior’ that the
First Claimant was a proper candidate for deportation.
[65] His Excellency found that the marriage was of short duration and the fact that he
was unemployed with the inference of being an unproductive member of this
Territory’s society made h1m “deportable”.
[66] There is no argument as I noted earlier, that His Excellency had the power under
statute to make the order and he did so well within the scope of the law having
found as he did that the criteria of Section 40 was satisfied However, the
concomitant question following immediately upon the heels of that finding must be
whether the order in any event should have been made.
7 Section 19 of the Constitution
17
[67] Thus, the next question must be as an amalgamation of quesllons 4 and 5 of the
R (on the application of RazgarJ case: 8
Is such interference necessary in a democratic society in the
interests of national security, public safety, or the economic
wellbeing of the country for the prevention of disorder or crime for
the protection of health or morals or for the protection of the rights
and freedoms of others and if so, is such interference proportionate?
[68] In the words of Lord Justice Tyson in the case of Allan Samaroo v The Secretary
of State for the Home Department 9, the issue that must be at the forefront of the
reviewing Court’s mind is that “given that this is a legitimate aim (the
prevention of crime etc) how should the decision maker decide whether
deportation in a particular case is justified knowing that it will involve
interference with an Article 8 (1) right? It is common ground that what is
required is a proportionate response.” (my emphasis added)
[69] It is therefore required by the decision maker to undertake a balancing exercise
before it can be considered whether the act1on although legal in every sense of the
word was in fact necessary.
[70] The circumstances leading to the deportation order in the Samaroo case10 were
somewhat similar to those in the case at bar. Samaroo like the First Claimant was
slated after conviction of a drug offence for deportation. In the Samaroo case
however, the facts of the case that led to conviction were quite divergent.
[71] Sarmaroo, who has a Guyanese National, arrived 10 the United Kingdom 1n June
1988, In September 1988, he married a British Citizen who had children of her
own previous to the relationship with Samaroo, who also owned her own home
and worked. In 1990, Samaroo was given indefinite leave to remain in the United
Kingdom and in 1991 a child was born to the union. In 1994, Samaroo was
convicted of being knowingly concerned with the importation of 4kgs of cocaine
worth £450,000,00 and sentenced to 13 years imprisonment
[72] Unlike the present case, Samaroo was in fact incarcerated and the offence for
which he was charged had the value of almost half a million pounds sterling and at
sentence, he was characterized as “the London end of the smuggling entity.”
8 Op cit
9 [2011) EWCA Civ 1139 at paragraph 13
10 Op Cit.
18
[73] Mr. Samaroo sought to question the deportation order on the basis of it being an
interterence of his right to a fam1ty life; and further, that the effect of the order
would have been to return him to Guyana, a place he had not resided since 1983,
some 18 years previous to the application. The Court in coming to its decision
which did not favour Mr. Samaroo’s appeal, however made it clear what was
required of the decision maker when they were undertaking the balancing
exercise.
[74] The Court in Samaroo, citing R (Daly) v Secretary of State for the Home
Department” said that the dec1sion to enforce the legitimate aims of protecting
society must be assessed as to whether the interference was “to an extent much
greater than necessity requires.”
[75] In the instant case, the First Cla1mant was conv1cted of a crime that1n all fora
would be considered serious. His punishment however matched the seriousness
of h1s individual act A small fine with a default provision for a brief period of
imprisonment, which never occurred as the fine was paid in total.
[76] There was no evidence that there was any resistance to the punishment as meted
out and there was no evidence that his payment was not forthcoming. What there
is evidence of is that smce that 2011 incident, the First Claimant has had no other
charge of any nature laid against him
[77] However, what His Excellency seemed to rely on to substantiate the
characterization of this Claimant as “undesirable” were reports, not charges made
to the police on Virgin Gorda which all seemed when analyzed, to surround an
ongoing family dispute between the Second Cla’1mant and her family into which the
First Claimant is now a party. This Court is of the considered opinion that these
could not have amounted to make this First claimant an “undesirable alien”.
[78] Thus, it is this Court’s considered opinion that His Excellency’s decis1on must be
assessed as to whether “the aim relied on [was} the maintenance of effective
immigration contro/”.12
[79] However, as Richards LJ in UE (Nigeral” case stated of this aim 1!, ” … goes into
the balance as weighing in favour of removal. On the other side of the
1: [2001]2 WLR 1622 at page 1633G
12 UE (Nigeria) and ors v Secretary of State for the Home Department [2010] EWCA Civ 97S at
para 39 per Richards U
BOp Cit
19
balance weighing against removal is the individual’s right to respect for
private life.”
[80] He went on to say at paragraph 40:
“Factors are relevant to the assessment of proportionality under
Article 8 in such a case only in so far as they impact either on the
weight to be given to the maintenance of effective immigration
control or on the weight to be given to the individual’s private life. It
is not a question of dropping in the scales all aspects of the public
interest for or against removal or anything that might be relevant to
the exercise of discretion under the statute or Immigration Rules. It
is a more specific and targeted exercise. “14
[81] It being a specifiC targeted exercise ” … it calls for a careful assessment of the
factors at play in the individual case both those favouring the interests of
the appellant and any others who rights may be affected and those favouring
the interests of the public. “15
[82] The situation of the Individual under threat of deportation must be considered and
a fair balance struck. In Sparring v Sweden16 the Court said of the European
Convention on Human R1ghts which is just as applicable to the Constitution,
” … the Court must determine whether a fair balance was struck between the
demands of the general interest of the community and the requirements of
the protection of the individual’s fundamental rights … the search for this
balance is inherent in the whole of the convention … ” and dare I say the
Constitution.
[83] The test therefore that must be applied is proportionality.
[84] Can it be said that the action of deporting the individual in question to protect the
public order is proportionate and justifiable in the breaking up of the family unit.
Thus not only must we look at the impact on the ~ndividual but as in the case of
Beoku · Betts IFC/ v Secretary of State for the Home Department” the
indiv.ldual’s spouse and children must be considered. In so doing, the quest’1on
whether it is reasonable to expect the spouse to also relocate must be an
14 Op Cit
15 AS{Pakistan) v Secretary of State for the Homp Department [2008] EWCA Civ 1118 at para 24
10 [1982] SEHRR 35 at paragraph 69
17 [2008] UKHL 39
20
important consideration during that balancing exercise to determine
proportionality.”
[85[ This Court must therefore review whether the Governor “has struck the balance
fairly between the conflicting interests of [the Claimant’s] right to respect for
his family life on the one hand and the prevention of crime and disorder on
the other.”19
[86) In thrs case, the evidence of the Second Claimant whose rights have also been
engaged rs that she is a crtrzen of the Territory; she has had her entrre life here
and not only does she have two (2) young children with the First Claimant, she
also has two (2) older children, one 19 and one 13, who together with the First
Claimant is their primary caretaker. The 19 year old suffers from encephalitis and
suffers seizures which require constant monitoring and medication which together
with the First Claimant she is tasked with providing.
[87) Taken together with the nature of the unsubstantrated reports that were made
against the First Claimant subsequent to his one conviction in 2011, this Court is
of the considered v·1ew that there was insufficient consideration given to these
factors in the balancmg exercrse undertaken by His Excellency. Instead, it appears
that the legitimate aims of statehood were given preeminence without a proper
assessment of the same as against all the relevant considerations. This Court is
therefore of the opinion that no proper or in fact no consideration was given to the
personal interests of the First Claimant and the Claimants as required, in order to
satisfy the test of proportionality.
[88) This Court is therefore hard pressed to find that the deportation of the First
Claimant was warranted in these circumstances.
[89] This does not however, by any stretch of the imagination, mean there can never
be times when the aim of protecting the society from undesirables would not be
warranted. It srmply means that in this case, the act of deporting the Frrst Claimant
in the present circumstances was disproportionate.
[90) This Court has not found any evidence of the First Claimant being a career
criminal or of him embarking on a life of crime to warrant his being sent from these
shores.
18 AF(jamaica) v Secretary of State for the Home Department [2009] EWCA Civ 240
19 Samaroo case op cit para 3S
21
[91] I am therefore of the opin1on that in making the deportation order, Insufficient
consideration was given to the effect the order would have had on the infringement
of the nghts to private and fam1ly life conferred upon the Claimants by the
Constitution. When there is an intention to so infringe those rights, there must be
sufficient justification for so doing. The Claimants were “entitled to something
better than the cavalier treatment lthevl received. “20
[92] Th1s Court is not convinced that the justifications g1ven by His Excellency in the
letter of the 13th February 2014 upon hearing the appeal were sufficient to show
that the discretion to issue the deportation order in these present circumstances
was properly exercised.
[93] A fam1ly should only be broken up in exceptional cases. As stated by the House of
Lords in the case of Huang v Secretary of State for the Home Departmenr1
~~ … human beings are social animals. They depend on others. Their family,
or extended family, is the group on which many people most heavily depend,
socially, emotionally and often financially. There comes a point at which, for
some, prolonged and unavoidable separation from this group seriously
inhibits their ability to live full and fulfilling lives.”
[94] Thus, thts court is of the opinion that in order for a balanced and true picture to
emerge which warrants interference of these rights enshrined in the Constitution, a
less mechanistic or narrow view must be taken of all the circumstances. His
Excellency having failed to do so, I set aside the deportation order dated 151
November 2013.
Damages and Costs
[95] Having found the deportation order should be set aside, I am prepared to order
payment of damages to the Claimants in the sum as submitted of $3,900.00.
[96] I have found there were no circumstances which aggravated the normal procedure
of taking the First Claimant into custody upon the service of an order for
deportation and accordingly do not order any further sum in damages.
[97] I further find that the Claimants having been entitled to bring the action are entitled
to their costs.
28 AB {Jamaica) v Secretary of State for the Home Department [2008] HRLR 465 per Sedley LJ
21 [2007] 2 AC 167 at 186
22
[98) I therefore order that costs are to be assessed if not agreed between the parties
within 21 days of th1s order
[99) Th1s Court will encourage both sides in that regard to be reasonable and senSible.
[1 00) The order of the court is therefore as follows
1 It is declared that the F~rst Claimant’s deportation pursuant to Statutory
Instrument 7212013 dated the 1″ November 2013 is a disproportionate
interference w1th the Claimants fundamental right to a private and family l1fe as
enshrined 1n Article 9 and 19 of the Virgin Islands Constitution Order 2007.
2. That the Statutory Instrument No. 72 of 2013 dated 1″ November 2013 is
quashed and declared null and void.
3. That the Governor’s decision to proceed with the order of the First Claimant’s
deportation as set out in letter 13′” February 2014 is quashed, having failed to
act proportionally in a lithe circumstances.
4 Damages to the First Claimant for h1s detention at the V~rgin Gorda Police
Station on the 21″ February 2014 in the sum of $3,900.00.
5 Cost to the Claimants to be assessed of not agreed within 21 days of this
order.
23
Nicola Byer
High Court Judge