NOTE TO STUDENTS Students may use the presentation below as a guide to redo of the summary.

This you will keep for further reference. You may rearrange it your way as you see fit. You may speak to the legal reasoning and identify the ratio of the case. You may also high light any area of the case which is of special interest to you and comment on it. This exercise will lay the foundation for the case analysis which is due on the 10th February.

Shanique Myrie [2013] CCJ 3 (OJ) Facts: !amaican born "" year old lady# Shani$ue %yrie was alleged to ha&e been assaulted#

detain and deported to !amaica by the 'arbadian uthority# after arri&ing the (rantley dams )nternational irport in 'arbados* without being ad&ise why. %s. %yrie claimed that this insult was because of her nationality. The 'arbadian go&ernment deny what %s. %yrie considers to be unlawful body ca&ity search under demeaning and unsanitary conditions# and the presence of discrimination as a result of her nationality. 'arbados claimed that %s. %yrie had in fact lied about the person who would ha&e hosted her in 'arbados and it was for this and no other reasons for her denial of entry. )ssues: +hether there is a right to freedom of mo&ement within the ,aribbean ,ommunity and did it bind 'arbados- )f so# did the treatment meted out to %s.%yrie amount to a &iolation of this right+hether 'arbados had the right to deny %s. %yrie access to the country+hether there was a &iolation of article ./0 of the 1e&ised Treaty of ,haguaramas under the heading of discrimination and most fa&ourable nation by 'arbadosStatues and Treaties cited. 1e&ised Treaty of ,haguaramas

1. ". 2. 3. 4. 5.

rticle .: rticle 0: rticle 34 rticle "30: rticle ""4 rticle ""5

'arbados 6ational 7aw 1. )mmigration ct a. Section 3 b. Section 0 819 c. Section 11 d. Section 12 e. Section "2 ,ase 7aw: 1. :ummingbird 1ice %ills & Suriname and The ,aribbean ,ommunity ;"01"< ,,! 1 8=!9# 8"01"9 .> +)1 330 ". 7uisi and ,arbone & %inistero del Tesoro. 2. 1 & ?ierre 'ouchereau ;22<@;24<. 3. Trinidad ,ement 7imited & The ,aribbean ,ommunity ;"00>< ,,! 3 80!9# 8"00>9 .4 +)1 1>3 ;2><@ ;31< 4. T,7 & (uyana ;"00>< ,,! 4 8=!9# 8"00>9 .4 +)1 2". ;"3< @;"><.

)n assessing the situation of Shani$ue %yrie and 'arbados# the courts first satisfy if they had Aurisdiction into the matter. The court noted to ha&e been granted special lea&es for %s. %yrie to appear and %s. %yrie under rticle """ of the 1e&ised Treaty of ,hagaramas 81T,9 had satisfied the entire element re$uired to grant them Aurisdiction. She claimed an entitlement to a right to free mo&ement within the ,aribbean ,ommunity# specifically a right of entry without any form of harassment# based on the combined effect of rticle 34 of the 1e&ised Treaty of ,haguaramas 8the B1T,C or BTreatyC9 and a Decision of the ,onference of :eads of (o&ernment of the ,aribbean ,ommunity taken at their Twenty@Eighth %eeting 8Bthe "00. ,onference DecisionC9. She also claimed that 'arbados breached her rights under rticles . and 0 of the 1T, to non@discrimination on the ground of nationality only and to treatment that is no less fa&ourable than that accorded to nationals of other , 1),=% States or Third States. The 'arbados go&ernment belie&e that the "00. decision did not create any legal obligation on them to grant %s. %yrie with such right that if it did# that right was not an absolute one and in any e&ent could not be Audicially re&iewed. The ,ourt claimed Aurisdiction some of %s. %yrie situation as it related to the interpretation of the 1e&ised Treaty of ,haguaramas and applying along with determinations made by rele&ant competent authorities in exercising their functions to fulfil or de&elop the aim and obAecti&es of the treaty. :owe&er other matters such as the breach of Fundamental rights and freedom human rights by 'arbados they claimed to not ha&e Aurisdiction to grant such order. The court claimed it stands to reason therefore that# in the resolution of a claim properly brought in its original Aurisdiction# the ,ourt can and must take into account principles of international human rights law when seeking to shape and de&elop rele&ant ,ommunity law 8paragraph 109. )n the reasoning of the court they had place the standard of proof to be lower than criminal law either international or domestic law. The court took into consideration of the flexibility of international tribunals to these issues. E&en thought there was a few inconsistency with some of the e&idence pro&ed by %s. %yrie such as the timing she claiming that the officers had her for 829 hours howe&er in assessing the e&idence it was shown that it was no more than 30 forty minutes# the ,ourt ga&e &ery careful and anxious consideration to all the material before it gi&en the seriousness of the allegations. fter# assessing the court became ultimately satisfied with support by the obAecti&e e&idence# the testimony gi&en and the reasonable inferences that the ,ourt was entitled to make. s the standard of proof that was place on %s. %yrie was satisfied

in relation to the concerning alleged insanitary state of %s. %yrie cell in which was detained# along with the ca&ity search that she claimed to ha&e taken place. The court seek to answer the $uestion as to if there is a right to freedom of mo&ement within the ,aribbean ,ommunity and did it bind 'arbadosThe "00. ,onference decision outline the right of free mo&ement as it made clear that e&ery ,ommunity national is entitled to a Bdefinite entryC of six months upon arri&al in another %ember State. fter addressing issues related to the facts# the court then addressed the issue raised by 'arbados as they claimed to not be bound by the ,onference decision. 'arbados argued that the "00. ,onference Decision is ineffecti&e because it uses the words Bagreed and not decidedC. )n the court &iew on that matter they belie&e it is not unusual for the community to record its decisions while using the word agreed. Therefore the courts &iewed that it is of no conse$uence that the "00. conference Decision uses the word BagreedC instead of BdecidedC. 'arbados in an attempt to show the inefficiency of the "00. ,onference Decision they argued that the reser&ation done by ntigua and 'arbuda rendered the decision ineffecti&e. )n assessing this issue raised the court look at rticle "0 819 and ". 839 of the 1e&ised Treaty of ,haguaramas and reAected the submission. The reAection was based on the that there was no e&idence to indicate that reser&ation was intended to amount to a &eto and there is nothing to suggest that the decision was not duly made1* along with the caricom Secretariat and &arious organs of the community ha&e all regarded and treated the "00. ,onference Decision as &alid and binding. )n addition# 'arbados also &iewed rticle "30 of the 1e&ised Treaty of ,haguaramas re$uires for the states to enact before it becomes binding. +ith this in mind# the presumption of the 'arbados )mmigration ct is that persons who are not citiFens or permanent residents of 'arbados ha&e no legal right whatsoe&er to enter the territory. The court argued that rticle "30 of the 1e&ised Treaty of ,haguaramas is not concern with the creation of rights and obligation at community le&el. :owe&er# it gi&es effect to the decisions of rights and obligation in domestic law. The ,ourt &iewed in paragraph 4" that

Hummingbird Rice Mills Limited v Suriname and the Caribbean Community [2012] CCJ 1 !J"# 2012" $% &'R (() [1$] *

B)f binding regional decisions can be in&alidated at the ,ommunity le&el by the failure on the part of a particular State to incorporate those decisions locally the efficacy of the entire , 1),=% regime is AeopardiFed and effecti&ely the States would not ha&e progressed beyond the pre@"001 &oluntary system that was in force. The original Aurisdiction of the ,ourt has been established to ensure obser&ance by the %ember States of obligations &oluntarily undertaken by them at the ,ommunity le&el.C The court went on to explained why 'arbadosGs position that the court was unable to re&iew the acti&ities of its immigration and customs officerGs maybe misguided. The court took into consideration section 20 of the re&ised Treaty of ,haguaramas in there explanation. Due to the importance of the right of Bdefinite entryC conferred by "00. ,onference Decision# the court seeks to explain certain substanti&e and procedural entitlements associated with the right. The court speaks to this in light of rticle 35 and 25 of the 1e&ised Treaty of ,haguaramas# as it &iewed that the right is a part of the concept of free mo&ement of , 1),=% nationals within the ,ommunity* as it sees "00. conference decision as a step to further ad&ance the community goal of free mo&ement that is not en&isioned by the 1T, but in some &iew already achie&ed by it. :owe&er there are exceptions to this rule to the right of definite entry such as Hndesirability which must read and construed against the background of rticles ""5 819 8a9 and 8b9 of the 1e&ised Treaty of ,haguaramas# as he aim 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* and charge on public funds which does not necessarily mean not ha&ing a&ailable funds at hand would mean you must be a charge on the public funds howe&er it would seem reasonable for the authorities to assess whether the &isitor has funds a&ailable and whether these funds would suffice during the time the ,ommunity national intends to stay in the country. The ,ourt held that in order for a %ember State to limit the right of entry of a national of another %ember State in the interests of public morals# national security and safety# and national health# the &isiting national must present a genuine# present and sufficiently serious threat affecting one of the fundamental interests of society.

'arbados Austified %s. %yrie denial claiming that she had lied to the immigration officials as under their )mmigration ct 8Section "29 persons are re$uired to be honest to these official in accordance with section 12 of the dministrati&e !ustice ct howe&er# the court argued that 'arbados ha&enGt discharge their duty to Austified limitation placed on %s. %yrieGs right to entry. )n addressing the matter of Discrimination posed by %s. %yrie and !amaica# the founded that this sufficiently pro&ed prima facie the situation of discrimination in accordance with rticle . of the 1e&ised Treaty of ,haguaramas to amount to a breach. :ence this matter was dismissed. nother matter that was not sustained by the court is the $uestion of %ost Fa&ourable treatment under rticle 0 which %s. %yrie claimed to ha&e been breach was at dismissed. The $uestion as to the claim for damages# the court considered a few elements such as the claimant must demonstrate that the pro&ision breached was intended to benefit her* the breach should be serious# the damage or loss should be substantial and a connection between the breach by the state and the loss or damage claimed. ccording to the T,7 & (uyana the court claimed to not ha&e pri&ilege to grant exemplary or puniti&e damages in its original Aurisdiction. :owe&er the court claimed to ha&e Aurisdiction to grant pecuniary loss or damage or non@pecuniary loss or damages. The ,ourt held that this treatment constituted a &ery serious breach of %s %yrieGs right to entry and so she was entitled to be awarded damages# though not exemplary damages. ,onclusion The ,ourt made a declaration that 'arbados had breached %s %yrieGs right to enter 'arbados. The ,ourt ordered 'arbados to compensate %s %yrie in pecuniary damages in the sum of I""30 and non@pecuniary damages to the tune of ''I .4000. The ,ourt also ordered 'arbados to pay %s %yrieGs reasonable costs. The ,ourt refused all other declarations and orders sought by %s %yrie and !amaica.