Monica Arrechea Cuero v The Chief Immigration Officer
| Jurisdiction | Anguilla |
| Judge | Innocent, J. |
| Judgment Date | 02 September 2020 |
| Judgment citation (vLex) | [2020] ECSC J0902-1 |
| Date | 02 September 2020 |
| Docket Number | CLAIM NO. AXAHCV 2020/0038 |
| Court | High Court (Saint Christopher, Nevis And Anguilla) |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
A.D. 2020
CLAIM NO. AXAHCV 2020/0038
Mr. Patrick Thompson with him Ms. Lavan Hoyoung of Counsel for the Applicants
Mr. Ivor Greene, Senior Crown Counsel, Attorney General's Chambers of Counsel for the Respondents
Writ of Habeas Corpus ad subjiciendum — CPR 57 — Sections 11 Immigration and Passport Act — Prohibited immigrant — Removal Order — Illegal Entry — Plea of guilty to illegal entry — no conviction entered by magistrate — Magistrate deeming person prohibited immigrant pursuant to section 13 of Immigration and Passport Act and making removal order instead of entering conviction and sentencing offender — Whether magistrate competent to deem offender prohibited immigrant — Exercise of Chief Immigration Officer's discretion to permit prohibited immigrant to remain conditionally or unconditionally — Whether detention pending removal unreasonable — Whether detention unlawful — Whether prohibited immigrant entitled to release pending removal
The factual basis of the present application does not appear to be in dispute. On 8 th May 2020, the applicants, Cuero, Medina, Curpa, and Navarro were arrested during a joint operation conducted by Immigration and Police authorities in relation to certain alleged offences under the Immigration and Passport Act.
On 23 rd May 2020, the applicants, Torez, Blanco, Centeno and Viveros were arrested in a separate joint operation conducted by Immigration and Police authorities for alleged immigration offences.
It appears that all of the applicants arrived in Anguilla on dates and places not designated a port of entry and without having granted permission to enter and remain in Anguilla by an Immigration Officer.
The applicant Blanco had been granted conditional leave to remain in Anguilla as a prohibited immigrant. She was detained because of alleged breaches of the conditions upon which she was granted leave to remain in Anguilla.
On 12 th May 2020 the applicants, Cuero, Medina, Curpa and Centeno, were taken before the Magistrate's Court and were remanded in custody at Her Majesty's Prison (‘HMP’). The remand warrants were all returnable on 19 th May 2020. It appears that at the time of their remand on 12 th May 2020 none of the applicants had yet been charged with any offence. Also, it is unclear whether any of those applicants were brought before the Magistrate's Court on 19 th May 2020 and further remanded in custody. No remand warrant dated 19 th May 2020 has been presented to the court.
On 5 th June 2020 the applicants, Cuero, Medina, Curpa and Centeno, were each charged with the offence of illegal entry contrary to section 13(1) of the Immigration and Passport Act. 1 On even date, each of the said applicants entered
pleas of guilty to the offences charged. The presiding magistrate deemed the applicants prohibited immigrants and ordered their removal from Anguilla pursuant to section 11(1) of the Immigration and Passport Act. It does not appear that the presiding magistrate entered convictions in relation to the applicants on the substantive offence of illegal entry contrary to section 13(1) of the Immigration and Passport ActThe Removal Order was in Form 8 and made pursuant to section 13 of the Immigration and Passport Act and dated 5 th June 2020 and was signed by the presiding magistrate.
The third applicant, Viveros, was charged on 2 nd June 2020 with the offence of illegal entry contrary to section 11(1) of the Immigration and Passport Act. She too entered a plea of guilty to the substantive offence; and she was ordered to be removed from Anguilla as appears by Removal Order in Form 8 and made pursuant to section 13 of the Immigration and Passport Act and dated 5 th June 2020 and duly signed by the presiding magistrate
The applicants, Torrez and Blanco, were charged on separate complaints dated 27 th May 2020 for the offences of illegal entry contrary to section 11(1) of the Immigration Act.
It appeared that applicants who were arrested on 23 rd May 2020 appeared before the Magistrate's Court for the first time on 27 th June 2020. The reason proffered for the delay in bringing those applicants before the Magistrate's Court earlier was that it was necessary to determine their COVID-19 status prior to bringing them before the court. 2
The aforementioned applicants all entered pleas of guilty to the charge of illegal entry contrary to section 11(1) of the Immigration and Passport Act. Again, the presiding magistrate recorded no convictions for those applicants, but instead
deemed them prohibited immigrants and made a Removal Order with respect to themThe Removal Orders were signed by the Governor on 5 th June 2020. The Removal Orders signed by the Governor were not presented to the court on the present application by either of the parties.
After the application herein was filed, it appeared that the applicants were relocated from HMP to The Valley Police Station where they continued to be detained. The affidavit of Mr. Paul Morrison, the Commissioner of Police, sets out the conditions in which the applicants are presently detained. 3 Inasmuch as the Commissioner's affidavit attempts to point out that the circumstances of the applicants' detention has been significantly ameliorated in light of their relocation, it does not change the fact that the applicants continue to be detained, and for all intents and purposes, involuntarily so. The present proceedings concern the lawfulness of the applicants' detention and not necessarily an inquiry into the conditions of that detention.
All of the applicants contended that the length of their continued detention awaiting removal from Anguilla is unreasonable; and that their continued detention awaiting removal from Anguilla is unlawful. In the premises, they claim that they are entitled to be released forthwith, subject to terms and conditions.
The applicants also alleged that there has been no information forthcoming from the respondents, in particular the first-named respondent, the Chief Immigration Officer, regarding efforts made to have the applicants removed from Anguilla. In the circumstances, the applicants alleged that their continued detention, being of a prolonged and indefinite duration, is unreasonable and therefore unlawful.
By extension, the applicants contended that the Chief Immigration has a discretion pursuant to section 22 of the Immigration and Passport Act, which she had
exercised unreasonably or failed to exercise at all, by refusing to grant the conditional release of the applicantsIn addition, the applicants contend that the duration of their detention pending removal is unreasonable in light of the powers conferred on the Governor by section 9 of the Immigration and Passport Act with respect to their conditional release.
The relevant authorities have proffered the following reasons for the applicants' continued detention. That the Immigration Department has sought to secure flights for the applicants' removal but have been unable to do so. This is particularly the case as air traffic to the regions from which the applicants hail are severely restricted in light of the proliferation of COVID-19 cases in Latin America. The affidavit of Ms. Kim Cutler, Deputy Head of the Governor's Office, Anguilla, speaks to efforts made to effect the applicants' removal from the territory. 4 The Chief Immigration Officer's reasons for the delay in removing the applicants from the territory are contained in her affidavit. 5
As the court sees it, the following issues arise for the purpose of determining whether the continued detention of the applicants is unlawful:
These issues will be resolved within the context of the Immigration and Passport Act. Therefore, much will depend on the interpretation of the relevant provisions of the Immigration and Passport Act.
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(1) Whether the presiding magistrate erred and acted ultra vires the Immigration and Passport Act when she purported to deem the applicants prohibited immigrants pursuant to section 10 of the Immigration and Passport Act.
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(2) Whether the decision of the Chief Immigration Officer to continue to detain the applicants pending their removal from Anguilla an unreasonable exercise of her discretion under sections 9 and 22 of the Immigration and Passport Act.
Section 13 of the Immigration and Passport Act provides:
“(1) No person shall enter Anguilla by sea or by air, except at a port of entry.
(2) A person entering Anguilla by sea shall not disembark without the consent of an immigration officer, and the master of the vessel shall not allow any person to disembark without such consent and may use all reasonable and proper means, including the use of force, if necessary, to secure the detention of any such person on board the vessel until such consent may be given.
(3) A person entering Anguilla by air shall forthwith present himself to an immigration officer.
(4) Every person entering Anguilla shall, if required by an immigration officer—
(a) make and sign the prescribed declaration; and
(b) submit to be examined by a medical officer.
(5) Any person, other than a person to whom section 5 applies, who contravenes or fails or refuses to comply with any of the provisions of this section shall be deemed to be a prohibited immigrant and may be dealt with as such.”
Section 10 of the Immigration and Passport Act confers on the Chief Immigration...
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