How long can someone be held in immigration detention in Trinidad and Tobago?

The power to arrest and detain

Under the Immigration Act (Chapter 18:01):

• the Minister may issue a warrant to arrest a person who is to be examined or inquired into, or who is under a deportation order, and the Minister, the Chief Immigration Officer or a Special Inquiry Officer may order that person’s detention (s 14);
• a police or immigration officer may arrest and detain without a warrant, for an inquiry or for deportation, a person reasonably suspected of being a non-citizen who entered other than at a port of entry or eluded examination or inquiry, or a permitted entrant whom the Minister has declared to have lost that status (s 15);
• a person about whom an inquiry is to be held, whose examination has been deferred, or against whom a deportation or rejection order has been made, “may be detained pending inquiry, examination, appeal or deportation at an immigration station or other place satisfactory to the Minister” (s 16);
• a person ordered to be removed may be held in a prison, police station, immigration depot or other appointed place while removal is arranged (s 29(10), (12)).

The Privy Council has held that a section 15 arrest of a permitted entrant needs a ministerial declaration that has actually been made (Naidike v Attorney General), and that detention pending deportation under section 16 is lawful only if a deportation order has been made against the person detained (Rodriguez Martinez v Chief Immigration Officer). In that case the order against the boy’s mother had been made by the Minister under section 11, and the Board declared unlawful the boy’s own detention from 15 December 2020 to 16 March 2022, about 15 months, because no deportation order had been made against him. The position of children is explained on the page on migrant children.

The reasonable-time limit

In Rodriguez Martinez the Privy Council held that the power to detain under section 16 “is impliedly limited to such period of time as is reasonably necessary to carry out the process of deportation”. The court decides for itself what is reasonable. The Board applied the principles in R v Governor of Durham Prison, ex p Hardial Singh, as restated by the UK Supreme Court:

1. the authorities must intend to deport the person and may detain only for that purpose;
2. detention may last only for a period that is reasonable in all the circumstances;
3. if it becomes apparent that deportation cannot happen within a reasonable period, the power should not be used;
4. the authorities must act with reasonable diligence and speed to remove the person.

The circumstances include the length of detention, the obstacles to removal, the authorities’ diligence, the conditions of detention, the effect on the person and their family, and the risks of absconding and offending. Time taken by the person’s own court challenge counts, with little weight if the challenge is hopeless and more if it has merit. There is no presumption that the detention is reasonable, and a court order temporarily stopping removal does not by itself end the power to detain.

In an appeal on Hong Kong legislation, the Privy Council treated the limits on the power to detain pending removal as facts the court decides for itself, which the detaining authority must be able to prove (Tan Te Lam v Superintendent of Tai A Chau Detention Centre).

Release on conditions

A detained person may be granted conditional release or an order of supervision, on reporting and other conditions satisfactory to the Chief Immigration Officer, including a security deposit, unless the Minister directs otherwise (s 17(1)). Breaking a condition allows re-arrest without a warrant and forfeiture of the deposit (s 17(2)). A person detained pending an appeal may apply to the Chief Immigration Officer for release on a recognisance or deposit (Immigration Regulations, reg 29). Regulation 29, and the similar power in section 29(10), apply only while an appeal is pending. Where the Minister made the deportation order himself and no appeal lies (ss 9(5), 10(6), 11), there is no appeal to stay removal, and release on conditions is under section 17(1). The Minister may also order the release of a person held on his warrant (s 14(1)), and the Chief Immigration Officer the release of a person arrested without a warrant (s 15). The risk of absconding, often decisive, may be met by such conditions (Rodriguez Martinez). The Court of Appeal has held that orders of supervision depend on a lawful power to detain, and cannot be used to make a permitted entrant who has not lost that status leave without a formal deportation or rejection order (Abdool v Chief Immigration Officer).

Habeas corpus and other rights

Parliament may not authorise arbitrary detention, or deprive a detained person of the right to be told promptly why they are held, to retain and instruct a legal adviser without delay, or to the remedy of habeas corpus (Constitution of the Republic of Trinidad and Tobago, s 5(2)(a), (c)). On a habeas corpus application the High Court may issue the writ, and the person holding the detainee must make a return to it showing the lawful authority for the detention. In Rodriguez Martinez the return exhibited the deportation order made against the mother and relied on section 16 ([21]–[22]). Unlawful detention may also ground a claim for damages, as in Naidike.