Chief Justice (ag) Roxane George, SC, on Wednesday quashed the orders for the deportation of 26 Haitian nationals who came to Guyana last November, agreeing that it was a breach of natural justice and the fundamental rights provided under the Constitution of Guyana.
“Based on the application before this court, there was a breach of natural justice regarding the issuance of the deportation orders,” Justice George held.
According to the Chief Justice, from her understanding of Sections 16 and 28 of the Immigration Act, “the subjects [Haitian nationals] should have been taken to court so that they could be heard,” before any further action was taken against them.
Justice George found that Article 139 of the Constitution which provides for the protection of liberty and Article 148 which guarantees protection of freedom of movement were breached, having considered how the Haitian nationals were detained and subsequently ordered deported.
Based on the other fundamental rights provisions, namely Articles 141, 142, 143, 144, and 149, the acting Chief Justice said that insufficient evidence was led to support a finding of a breach.
All the other orders sought by Allandres Archer, who filed the application on behalf of the Haitians challenging the constitutionality of the deportation orders, including one seeking a referral to the Caribbean Court of Justice (CCJ) to ventilate issues regarding the Revised Treaty of Chaguaramas and another seeking damages were refused.
Given that the foreign nationals have been released from State custody, the acting Chief Justice made no orders for court costs. Earlier this month, Attorney General and Legal Affairs Minister Anil Nandlall, SC, filed an application on behalf of Archer and the State asking the court to dismiss the challenge mounted by Archer.
In his grounds in support of the application, Nandlall submitted that a video was circulating in which Archer stated that he did not authorise Attorney-at-Law Darren Wade to file legal proceedings on behalf of himself against the State challenging the deportation of 26 Haitian nationals.
Nandlall had argued that since evidence has surfaced indicating that Wade filed the action without Archer’s consent, it is fundamentally flawed as it breached certain sections of the Civil Procedure Rules 2016 and amounts to a nullity, and ought to be dismissed.
However, having considered the evidence disclosed by Nandlall, including the video of Archer, Justice George pointed out that if the applicant [Archer] was disputing the authenticity of the application, he could have done so himself, since “he clearly understands that he could have sought legal advice to withdraw the application”.
“He [Archer] was on one of the Zoom calls, so it is not like he is not aware of what was going on…” In this regard, the acting Chief Justice expressed that it was “passing strange” that Archer said one thing in the video and did to the contrary.
For his part, Wade told the court that he has never been instructed by his ‘client’ to withdraw the matter. “If the applicant wanted to withdraw the application, then he should have done so himself,” Justice George said to the Attorney General.
Having regards to the foregoing, Justice George told Nandlall that his application to strike out Archer’s action was unmeritorious and dismissed it.
On November 7, 2020, the 26 Haitians arrived in Guyana and were arrested. Those arrested were 10 males, nine females, and seven children (two boys and five girls). They were detained by Police, who, at the time, said it was discovered that they had entered the country illegally via Suriname. Police said that the foreign nationals were en route to neighbouring Brazil at the time of interception.
They were escorted to the Criminal Investigations Department (CID) headquarters, Eve Leary, Georgetown, where they were questioned and later taken into custody at the State-owned Hugo Chávez Centre for Rehabilitation and Reintegration after officials suspected they were victims of people smuggling.
On December 1, 2020, they were taken before a City Magistrate who granted orders to the Guyana Police Force (GPF) for their deportation. It was reported that the Haitians were deported for lying to immigration officers about where they would be staying while in Guyana which violates the Immigration Act.
The next day, the Chief Justice granted a conservatory order halting their deportation until she heard and pronounced on the challenge brought by Archer. One week later, the Government released the foreign nationals from custody with their passports at a city hotel of their choice pending the hearing and determination of the case.
The Haitians later vanished from the hotel while the court proceedings were still ongoing, leading officials to suspect they had fled the country. The Government had initially said that they were clearly victims of people smuggling, since the children were without their parents, the immigration laws were breached, and they all gave an address that did not exist.