(More) habeas corpus, the TCI and COVID-19: the update

Tim Prudhoe reveals how the jailhouse referral in the Turks and Caicos Islands, leading to a ‘remote’ pro bono defence of 16 Sri Lankan detainees caught in the COVID chaos, worked out

Released, finally. The June issue of Counsel gave me the chance to outline events from the time of initial detention off a sloop arriving illegally during the night of 10 October 2019 in the British Overseas Territory of the Turks and Caicos Islands (‘the TCI’). I finished that article asking the reader to watch this space, and I am now back with much to fill that.

First, let me start with well-deserved praise of the effect of Counsel itself: having read my article, fellow-barrister Philip Rule became an invaluable additional team member. There are other lawyers based in England to be thanked, which I do below, but Philip’s help was unsolicited (except via the article), timely and material. A public and human rights specialist at No5 Chambers, London, Philip shared with me the twists and turns of the important habeas appeal listed for two days but which became four, ending on 9 October 2020. Judgment on the appeal remains pending and which I expect to be nothing short of explosive.

That appeal hearing (CLAP 4/2020, Kajeepan Paintamilkavalan) was one of several hearings as spread across multiple proceedings.

My first article left off on threatened deportation of three Sri Lankan clients. Those were (and still are) the three refusing voluntary repatriation to Sri Lanka. To stop deportation, the necessary permission by which to start judicial review proceedings challenging the adequacy of deportation steps was sought and obtained against the ‘ticking clock’ of airports re-opening across the world and along the intended travel route of 10,000 miles from the TCI to Sri Lanka. In those judicial review proceedings (CL 54/2020, R v Minister for Border Control and Labour, Hon. Vanden Williams and others, ex parte Kajeepan Paintamilkavalan and others) an injunction was sought and obtained by which to put the deportation on hold.

That provided breathing space for the involvement of representatives of the United Nations High Commissioner for Refugees (‘the UNHCR’) to undertake refugee status designation (‘RSD’) interviews of these same three. That outcome is obviously not itself determinative one way or the other in respect of any subsequent asylum. But it is an important step along the way.

The outcome of the RSD process in respect of those three clients has been that refugee status designation was granted in late July. The judicial review proceedings were aimed at halting deportation steps based on the absence of belief as to any reasons not to repatriate. The effect of the UNHCR refugee designations was that the writing was firmly on the wall for the challenged deportation steps subject to the judicial review. In late August, and in return for copies of the UNHCR advisory opinions (explaining to the TCI government the refugee status designation decisions) so that they could be used for the making of formal asylum application, the judicial review proceedings ended by consent.

So far, so simple. While still pending, and to give them meaning, the judicial review proceedings needed the benefit of translation services (Tamil to English and vice versa). Except the TCI government declined to fund those. Remember, there is currently no legal aid system for this type of assistance, so the question of reasonable translation costs being covered by a legal aid certificate never arose. So proceedings under Part 1 of the TCI Constitution were started in early July (CL 91/2020, Kajeepan Paintamilkavalan and others v Minister for Border Control and Labour, Hon. Vanden Williams and others). The aim of those proceedings being, of course, simply to allow us to deliver adequate representation in the judicial review proceedings CL54/2020.

As the months of detention continued to pass, the courts in TCI remained ‘remote only’ and the listed appeal in CLAP 04/2020 of late September was to take place ‘remotely’ too. As it turns out, the Court of Appeal sat in TCI from Barbados, Trinidad and Tobago and The Bahamas respectively, and the advocates before it were beamed in from the TCI, London and St Lucia, but more of that later. As no convincing proposals were given on repatriation (still the basis relied on for the detention), further habeas corpus proceedings were started. The first proceeding (by now, including those in February-April, actually the third overall) were started in early August (CL91/2020, Ariyaputhiran, Ravikkumar and others v Derek Been, Director of Immigration and another) was for five Sri Lankan clients separate to those in CL54/2020 (the judicial review). Because of the prior challenges to legal standing by which to bring the proceedings and the continued language barrier, the process of documenting necessary instructions remained a painfully slow process.

As soon as those (third) habeas corpus proceedings were up and running, we applied to amend the constitutional claim to add those litigants. The impacting language barrier and lack of government funding issues were precisely the same. By mid-August we acted for eight Sri Lankans in the constitutional claim on translation costs.

But, by now, we had not eight clients but as many as 16. All of whom were declining voluntary repatriation (assuming, for present purposes, that the documents 13 of those had signed early while kept incommunicado truly had ever been voluntary). So, as the reader likely will have guessed already, yet further habeas corpus proceedings were needed. On 12 August 2020 the necessary Notice of Motion for three more Sri Lanka clients was issued (CL 100/2020 Kengatharan Kokulan others v Derek Been, Director of Immigration and another). That was listed for a hearing on 25 August 2020. That left the remaining five of our Sri Lankan clients. For those, on 21 August 2020 the equivalent Notice of Motion was issued (CL 102/2020 Gouthaman Sivaloganathan and others v Derek Been, Director of Immigration and another). Those proceedings were also listed for 25 August.

So, five habeas corpus proceedings since late February. Three ongoing as at 21 August. Sixteen clients, eight of which now have a pending constitutional claim and a sub-set of those, three, have a judicial review claim that is about to settle and – those same three – an appeal listed for late September. I know, phew.

The hearing on the writ of habeas corpus CL92/2020 (the third such proceeding in the overall chronology) took place on 20 August 2020 and in which release subject to conditions was offered via the Minister of Immigration. That offer came via emailed letter during the hearing. It seemed at the time a somewhat surreal way in which to learn of imminent release. That conditional offer was refused by me on behalf of the applicants and from whom I had no scope to obtain instructions. Unconditional release was ordered, on the basis that accommodation in TCI would still have to be provided by the TCI government.

Cabinet met the following day. An interesting aspect of the overall case that never needed to be litigated is the status of a 2013 policy of confidentiality in respect of discussions at Cabinet. That issue of asserted privilege will be for another day. Anyway, whatever was discussed in respect of the Sri Lankans at that meeting, on 24 August 2020 (and without bothering to inform us first, as their lawyers of record), the Immigration Department released all the remaining Sri Lankan (and one Indian) detainees. Those released included all of our remaining eight clients as well as the three clients in the judicial review. At the hearing the next day on 25 August 2020 (CL100 and CL102/2020 – eight clients), on the basis of that conditions had been attached to the release, I sought writs of habeas corpus for an argument on those conditions. By then the court had apparently had its fill of habeas corpus proceedings. It refused the writs on the basis of the prior release (the day before the listed hearing). Any attempt to re-detain on the basis of those conditions (of residence, reporting and not to take employment in the TCI) would generate further interesting issues. Everyone involved hopes that it will not come to that.

By the end of that same week, settlement of the judicial review proceedings on specific terms was approved by the court.

So, where are we now? The constitutional case remains pending but – with the judicial review proceedings over – has been ‘re-purposed’ for translation costs in the context of asylum claims. Sadly those remain opposed by the Turks and Caicos Islands Government. Those proceedings now have all 16 of our clients in and we are preparing for a long slog on that and expect it to go up on appeal whatever the outcome. Material for a possible third article, one day, perhaps. Meantime, three asylum applications have so far been submitted; on the basis that they are necessarily ‘holding’ submissions without the benefit of funds for translation. For our other 13 clients, the RSD interviews process remains ongoing with the UNHCR. Subsequent to that, asylum applications (similarly caveated) are expected. If and when any of these asylum applications are allowed, there may well then be the issue of candidate resettlement countries. The small size of TCI relative to the scale of its ongoing problem with illegal immigration creates a huge strain on its operating capacity. A strain that likely caused many of the issues that came to light only as a result of the five habeas corpus proceedings that were necessary for me to bring.

For now, that just leaves a decision on the appeal against refusal of ‘habeas 2’ (CL44/2020 Balasundram Kabiraj and others v Derek Been, Director of Immigration and another). Originally listed for two days, it took substantially longer than that and was so large in its range of issues that Philip Rule and I shared the advocacy, allowing us to play to his professional strengths on the public law aspects. The appeal raises issues of original versus appellate jurisdiction, around the fact that a challenge to the refusal of release on a writ of habeas corpus inevitably loses some of its lustre when release of the subject appellants are released by the time of the appeal. The TCI constitutional provisions are very similar to many across the Caribbean region and there is at least the risk that specific allegations of constitutional breach may be remitted back to the Supreme Court (the TCI trial court) for determination. Either way, it is to be hoped that the Court of Appeal’s written reasons are such that they send a strong message in support of fundamental rights of fairness and access to justice. In many respects, the eventual releases on the successor habeas corpus proceedings to the one appealed speak for themselves in this whole saga.

Finally, and in praise of those many from England who are ready to offer their expertise for free, in addition to Philip, special thanks to the team at Duncan Lewis Solicitors, Harrow on issues of legal aid and translation costs. Also to Amjad Salfiti at John Street Solicitors, on similar issues and my determined and unshakeable colleagues on the ground in the Turks and Caicos Islands. The levels of hostility to the work on which we eventually succeeded was plainly intended to intimidate us and I am proud to have proved that has failed and, instead, spurred us all on. It is likely that the obligation to fund translation costs will continue to be litigated in TCI for some time to come.

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Pictured above: TCI Immigration Detention Centre, Providenciales. Legal visits to the IDC had to be booked 24 hours in advance and were then suspended altogether.
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Tim Prudhoe

Tim Prudhoe is a member of Outer Temple Chambers, London. He also runs his own law firm (Prudhoe Caribbean) in respect of work across the Caribbean region out of the Turks & Caicos Islands. He appears in court in the many jurisdictions in which he is admitted.