The destructive effect of the COVID-19 virus pandemic is all too well known. No single example is ever a sufficient illustration of such a wide-ranging problem. That said, recent litigation in the British Overseas Territory of the Turks and Caicos Islands (‘the TCI’) has seen a small jurisdiction already struggling with influx of illegal immigration having to grapple with COVID-19. Both in TCI itself and in – of all places – Sri Lanka (almost 10,000 miles from its shores). As a direct result, important issues of detention and habeas corpus had to be decided on paper without a hearing and airport closures threw repatriation efforts into chaos.

IT systems held up to the test on 24 April in a four-hour hearing on a writ of habeas corpus in respect of 15 applicants. A ruling was given on 1 May that the continued detention is not yet unlawful. Production of the applicants was via video link from a detention centre, interpreter from a separate location and the advocates also via video. At one point the Director of Immigration even gave live evidence (and was cross-examined) via video link. Difficult enough in larger jurisdictions with access to significant resources; all completely unprecedented in the TCI. Emergency legislation to allow this type of ‘remote’ production on such a writ was four days old when deployed in the face of my (unsuccessful) opposition.

Illegal immigration to TCI

During the early hours of 10 October 2019 a badly equipped Haitian sloop overloaded with illegal immigrants was stopped by immigration officials as it made landfall on the shores of the island of Providenciales, TCI. Not an especially unusual event. TCI is to the immediate north of Haiti. Anyone who knows anything in respect of Haiti understands that there are many reasons to want to leave. Unusual about that night’s arrivals was that amongst the illegal immigrants were nearly 30 Sri Lankans and signs of alleged ‘people smuggling’ (or worse, actual trafficking). That number included the individual suspected of masterminding the incredibly circuitous journey from Sri Lanka to an intended destination of Canada in search of a better and more free life.

The Sri Lankans were then detained as crimes were investigated (slowly). Very little happened to the detainees for the next month, due to problems sourcing Tamil language translators. It took almost three months from the time of arrest for police interviews to finish and decisions to be communicated from local police to immigration officials as to who was needed for the intended criminal prosecution of the alleged people-smuggler.

Illegal immigration inbound to TCI was, sadly, barely newsworthy. In early February I remained oblivious to the fact that so many Sri Lankan detainees remained in TCI. Until, that is, an existing client was in transit in the prison system back from an appeal hearing. He met the alleged criminal mastermind of the people-smuggling process in a police cell. So I was contacted. What I could establish as known facts at that point intrigued me and I agreed to dig deeper. Right from that initial stage it was clear by the involvement of seconded Irish and English police officers, as well as the presence of Canadian police at the (many) video recorded interviews, that there was a great deal more to this investigation than illegal immigration.

The sheer scale of the smuggling operation was apparently unprecedented in TCI. So too the involvement of those who had started their journey from so far away. That TCI was considered a safe ‘trans-shipment’ point and sufficiently porous for that seemed to speak to possible systemic problems of corruption. The journey for many of the Sri Lankans seems to have been Sri Lanka to Dubai, Dubai to Istanbul, Istanbul to Havana, Havana to Kingston Jamaica, Kingston on to Port-au-Prince in Haiti and then north to Port-de-Paix. From there, departure from Haiti via boat for TCI. With the prosecution of the alleged smuggler still pending, it remains to be seen what onward journey to Canada is alleged, but there is no doubt that TCI was not a final destination.

Challenge to legal standing and other obstacles

A couple of years before I had still been a barrister partner and trial lawyer in a global disputes firm headquartered in New York; but I missed varied advocacy (and cases that didn’t last years and involve a dozen or more lawyers) too much and so returned to TCI where I had commenced my overseas practice many years before. Caribbean offshore jurisdictions outside of the ‘Big Three’ (Bermuda, the British Virgin Islands and Cayman) do not demand a work specialty from a litigation lawyer as a pre-condition to success and are hidden gems for that reason alone. Besides, being old enough to have started at the English Bar with a common law practice, criminal work is very familiar from those early days and criminal appeals have always remained part of my practice.

It was during the disclosure process in the smuggling prosecution that it first became apparent to me that the Sri Lankans remained detained in TCI in a facility not designed for long-term incarceration. There was no discernible ‘plan’ as to that status quo changing any time soon. At a preliminary hearing I raised the issue of ongoing detention of the so-called ‘smuggled’ Sri Lankans and their rights of access to legal advice (guaranteed under the TCI Constitution). It was because I expected a certain response in open court from the prosecutor – to the effect that it was of no concern to her whether such rights were being flouted – that I had a colleague at that hearing to ‘harvest’ content for an affidavit from him in support of the (by then) intended necessary initial step for the grant of a writ of habeas corpus in respect of one or more of the detainees.

Like most of those reading this, by the time of it becoming clear that I was on a collision course with several parts of the TCI government over the plight of these detainees, it would be fair to say that habeas corpus work was not exactly my core practice area. Together with those helping me from the law firm I run out of TCI, I faced a steep learning curve in this fascinating area of work. I was especially worried about my legal standing by which even to start such an application. I wasn’t allowed to visit any of the candidate applicants even to establish their wish to be represented. But the more barriers placed in my way to access those who clearly needed help, the more obvious it was to me that I had to act. With the sole and notable exception of the alleged smuggler’s prior lawyer, nobody else in the profession seemed prepared to do anything.

Sure enough, it turned out that there is a long line of cases on the ability of third parties to bring applications for the writ of habeas corpus. Unlike the process now in place in England and Wales (CPR Part 87), the TCI still operates a Notice of Motion initial stage on the route to a writ of habeas corpus. In that context (and because the need for the issuance of the writ was so clear by then) I short-served the relevant government lawyers and asked for a writ right away. Which I got. On the return date I was met with an unconvincing explanation as to the reasons for delay in repatriation, a challenge to my standing by which to bring the application, the threat of costs being sought against me and the allegation that the proceedings reflected the merely one individual’s view (mine, of course) as to the protections given under the Constitution.

Most of that I had expected, but not the TCI government parading the applicant (whom I chose simply on the basis of his family name being alphabetically first of the detainees) at the hearing with a witnessed disclaimer of legal advice and a stated preference to remain a detainee pending repatriation. It felt like watching a hostage exclaim admiration for his captors into a television camera. I was denied the right by immigration officials to speak with the applicant myself.

This was a low point in the exercise of government power in the TCI in the 20 years I have practised there; even in comparison to the abuses of executive power that led to a Commission of Inquiry in 2009 and the suspension of local government in 2010 for several years.

Those first proceedings (involving a single applicant) were defended in part by producing written proof of having asked the applicant and many of his fellow detainees if they wished to see a lawyer. Of the many remarkable coincidences in the case, those offers of access to lawyers occurred soon after I had started the proceedings seeking a writ of habeas corpus. But even those requests left 15 of the Sri Lankans unaccounted for. So I had a colleague formally ask to see them (which I knew would be ignored) and then issued a second application for a writ of habeas corpus: this time for as many as 15 applicants.

In these second proceedings a better job was done of opposing my legal standing so to do. By then, somehow, word had reached Sri Lanka and the relatives of several of the detainees that I was trying to help. Heart-wrenching emails arrived through the night TCI-time from fathers, mothers, wives and siblings asking that I help. By then three of the detainees had asked to see a lawyer and relatives of each of those three had contacted me. A writ already existed in the first proceedings, but my position on the issue of legal standing across both cases to me was very simple (and accepted by the hearing judge in due course): the circumstances of the detention was the same for all of the Sri Lankan detainees. Sufficient legal standing even for one is enough for the writ to run (ie issue in order to be determined) for all and an attempt to try and avoid examination of the issue for any sub-set of the detainees was (at least) a sterile exercise.

Repatriation efforts frustrated by COVID-19

What saved the TCI government on the first proceedings (CL33/2020 Ariyaputharan, Ravikkumar) in a judgment of 31 March was not the embarrassing attempt at documenting last minute repatriation efforts but instead the airport closures as a result of COVID-19 and the lack of alternative accommodation within TCI. The somewhat circular argument of there being no practical alternative to detention somehow justifying further detention only survived my attack in the context of the COVID-19 impact on outbound travel from TCI. They couldn’t leave. There was no adverse costs order made and, instead, heartening judicial praise for the impact that pro bono representation by then had had.

In a judgment on the same date (CL44/2020 Balasundram, Kabilraj) the writ of habeas corpus was ordered to issue from 17 April. This delay, at my suggestion, would give time after the (then) expected re-opening of both the Sri Lankan and TCI airports for the writ even to be avoided entirely if repatriation had taken place by then. Even with a further (voluntary) delay until 20 April in having the writ issued, no repatriations had been made by then and the return of the writ took place as scheduled.

With the closure of airports at both ends of the journey (and, presumably, also those in between) expected well into May, continued detention was presented as a fait accompli by the respondents to the writ at the 24 April hearing. All this in the midst of (by now) substantial levels of empty tourist accommodation in the TCI. The 1 May decision by incoming Chief Justice Mabel Agyemang is an interesting read, but came down on the side that the continuing detention could continue for now on the basis of ongoing efforts to repatriate.

The detention is at least continuing to receive the adverse publicity it deserves as the pressure to end it increases. Of the three detainees refusing (on the stated basis of stated fears for their physical safety back in Sri Lanka) to sign consent forms for voluntary repatriation: notices of intention to deport were served on the eve of the decision with only a three-day ‘window’ for representations. So these issues may yet continue to be litigated, just in a different form. Watch that space. Either way, it seems inevitable that both sides to these issues will be better prepared for if (mostly likely when) similar issues arise. Meanwhile, jailhouse referrals are a roll of the dice that I will remain unable to resist.