Can a deportation order be challenged or lifted in Trinidad and Tobago?

Appeal to the Minister

A deportation order made by a Special Inquiry Officer can usually be appealed to the Minister by serving a notice of appeal in the prescribed form on an immigration officer, or on the person who served the order, within 24 hours of service of the order (Immigration Act (Chapter 18:01), ss 13(3), 27(2); Immigration Regulations, reg 30(1)–(2)). The appeal stops the order being carried out until it is decided (s 29(3)). There is no appeal against:

• an order the Minister makes himself against a permitted entrant he has declared to have lost that status (s 9(5)), a person whose Minister’s permit has expired or been cancelled (s 10(6)), or a person who entered unlawfully (s 11);
• an order made on the examining medical officer’s certificate that the person is in one of the prohibited classes for mental or physical illness or disability, or an order on drug addiction or drug trafficking grounds (s 27(1)).

Where no appeal lies, nothing stays the order, and the routes are court proceedings and a request to the Minister to cancel it (s 27(6)). The Minister’s decision on an appeal is “final and conclusive”, subject to sections 30 and 31 (s 27(3)).

What if the 24 hours have passed?

The Act gives a right of appeal only where the notice is served within 24 hours (s 27(2)), and neither the Act nor the Regulations gives the Minister or an officer power to extend that time. Once it has passed, the routes that may remain include court proceedings, a request to the Minister to cancel the order (s 27(6)), and the re-opening of the inquiry to hear further evidence (s 26), all described below.

What the courts can and cannot do

Section 30 says that no court may “review, quash, reverse, restrain or otherwise interfere with” a decision or order “had, made or given under the authority of and in accordance with this Act relating to the detention or deportation of any person ... unless such person is a citizen of Trinidad and Tobago or is a resident”.

Two points follow:

1. Citizens and residents are outside the bar. A person who claims to be a citizen or resident may appeal to a judge of the High Court, and then to the Court of Appeal, against a rejection or deportation order, or against a declaration that they have lost resident status (s 31(1)). Some people cannot appeal against that declaration, including those suspected of subversive or treasonable activity and those the Minister considers, on information he regards as reliable, likely to be undesirable (s 31(2)).
2. The bar protects only decisions made “under the authority of and in accordance with” the Act. In both cases below the Privy Council gave relief against action the Act did not authorise. In Naidike v Attorney General it held that an arrest and detention without the ministerial declaration the Act requires were unlawful, that the deportation order was not properly made, and that damages were payable, to be assessed by the High Court. In Rodriguez Martinez v Chief Immigration Officer it declared unlawful a boy’s immigration detention before any deportation order was made against him.

Court proceedings

• Judicial review. Leave of the High Court is needed (Judicial Review Act (Chapter 7:08), s 6; Civil Proceedings Rules, Part 56). The application must be made promptly and in any event within 3 months from the date when the grounds first arose, unless the court finds good reason to extend the time (s 11(1)). Leave will not be granted where another written law provides an alternative procedure, save in exceptional circumstances (s 9). An order the Minister made himself, with no appeal, can be reviewed: in Rangel Dominguez v Minister of National Security (HC, 4 July 2023) the High Court examined a section 11 order for illegality, unreasonableness and unfairness.
• Constitutional motion. A person who alleges that their fundamental rights have been, are being or are likely to be contravened may apply to the High Court for redress (Constitution of the Republic of Trinidad and Tobago, s 14(1)). Where a parallel remedy exists, this route is proper only exceptionally; in Naidike it was allowed because the claim turned entirely on the meaning of the Act and because the State raised its objection too late.
• Habeas corpus. Parliament may not deprive a detained person of the remedy of habeas corpus, which tests whether the detention is lawful (Constitution, s 5(2)(c)(iv)). It challenges the detention, not the deportation order itself.
• Interim orders. The High Court can make interim orders restraining removal while a claim is decided (Judicial Review Act, s 10(1); Constitution, s 14(2)). Such an order does not by itself make continued detention unlawful (Rodriguez Martinez).

How the courts have treated refugee and asylum claims is explained on the page on refugee protection.

Having an order stayed, cancelled or lifted

• Cancellation. The Minister may cancel any deportation order, whether or not he made it (s 27(6)).
• Stay or quashing after a failed appeal. Where the Minister dismisses an appeal against the order, he may stay or quash it, including where there are reasonable grounds for believing the person would be punished for political activities or suffer unusual hardship, or on compassionate or humanitarian grounds (reg 28(1)).
• Re-opening the inquiry. An inquiry may be re-opened, including by order of the Minister, to hear further evidence, and the decision confirmed, amended or reversed (s 26).
• Minister’s permit. A permit issued by the Minister under section 10 lasts no more than 12 months and, while in force, stays the execution of any deportation order (s 10(2)).

An order that is not cancelled stays in force after removal, and a removed person who returns without the Minister’s written permission commits an offence and can be removed again (s 29(2), (6), (8)).