Tomlinson v Belize & Trinidad and Tobago

The Caribbean Court of Justice is vested with a unique double jurisdiction: appellate to replace the JCPC (for Belize), and original to adjudicate RTC matters (for Belize and Trinidad & Tobago).^[1] Since its 2005 founding, the Court "has incrementally established doctrines of Community law that both resemble and deviate from those enunciated" by the ECJ for Union law.^[2] In Myrie v Barbados,^[ii] the Court found that CARICOM nationals had freedom of movement throughout member states, and could directly apply to the Court (without first exhausting local remedies) for enforcement of CARICOM rights.^[3] The decision attracted LGBTQ activists "to test how far the CCJ would go in that subject area [enforcing the CARICOM rights of LGBTQ nationals]".^[4]

Maurice Tomlinson, a UWI attorney-at-law and Jamaican LGBTQ rights activist,^[5] applied to the Court for special leave to commence proceedings against Belize and Trinidad and Tobago on 31 May 2013,^[6] seeking to strike down provisions in their Immigration Acts which prohibited homosexuals from entering said countries,^[7] arguing these violated his CARICOM right to free movement.^[8] The Court consolidated the claims on 17 July 2013,^[9] and granted leave on 8 May 2014.^[10] CariFLAGS (Jamaican LGBTQ charity) and CARICOM were granted leave to file submissions in 2014.^[11] Oral arguments were heard on 17–18 March 2015.^[9]

Tomlinson regularly travelled throughout the Caribbean for LGBTQ rights activism, including to Belize on two occasions, and Trinidad and Tobago on four.^[12] On those occasions he experienced no hassle entering the countries, and was not asked about his sexual orientation by immigration officers, but nor did he disclose it.^[12] As such, his complaint was not centred on any refusal of entry nor wrongful treatment by the defendants, but rather on the allegation that the explicit text of their Immigration Acts sufficed to prejudice the enjoyment of his CARICOM rights.^[13]

Neither Belize nor Trinidad and Tobago challenged Tomlinson's Myrie-established right to free movement,^[14] and both agreed that homosexuals could not be denied admission as "undesirable persons" per the 2007 Conference Decision,^[15] and further asserted that in practice they had never prohibited CARICOM nationals from entering their jurisdictions on the basis of sexual orientation.^[16] Belize further argued that they interpreted their Act as prohibiting only those profiting from sexual behaviour,^[17] whereas Trinidad and Tobago admitted they read their Act as barring entry to homosexuals (and others, despite non-enforcement).^[18]

The claimant argued he nonetheless faced "genuine legal uncertainty" as to what would happen if he attempted to enter either country, given the current text of the Immigration Acts.^[19]

CariFLAGS supported the claimaint,^[20] whilst CARICOM filed on behalf of the defendants.^[21]

On 10 June 2016, the Court found as follows.^[22]

[T]he claims of Tomlinson against Belize and against Trinidad and Tobago fail. In consequence, the requested remedies must be refused. Both States accept Tomlinson's right of entry into their territories and a requested declaration in those terms hardly advances matters. The Court holds that Tomlinson has no valid reason to assume that his rights will not be respected by the States. The reasons for this conclusion are twofold. First, State practice in relation to section 5(1)(e)^[iii] of the Belize Immigration Act and section 8(1)(e)^[iv] of the Trinidad and Tobago Immigration Act does not suggest any incompatibility with the RTC^[v] or the 2007 Conference Decision^[vi]. Second, the practice or policy of admitting homosexual nationals from other CARICOM States (not falling under the two exceptions mentioned in the 2007 Conference Decision) is not a matter of discretion but is legally required based on Article 9^[vii] of the RTC as this is an appropriate measure within the meaning of that provision. Given the transformation of this Treaty provision into domestic law, this legal requirement equally exists within the domestic legal order of a Member State, notwithstanding a real or apparent contradictory provision in the national Immigration Act.

The Court thus dismissed Tomlinson's claims, and ordered parties to bear their own costs.^[23]

Tomlinson deemed the case "a significant win", as now "member states were clearly prohibited from practising laws that conflict with the fundamental freedoms of CARICOM such as discrimination based on sexual orientation".^[24] The Court "took pains to emphasise" that it was not "condoning the indefinite retention on the statute book of a national law which in appearance seems to conflict with obligations under Community law".^[25]

The Court's decision has been described as "cautious" and an instance of "reluctance", "legal diplomacy", and "judicial restraint" for focussing on the application of law rather than statutory language.^[26] This "restricted focus on actual practices as opposed to the existence of discriminatory laws" has been criticised as "questionable" and "regrettable",^[27] given it seemingly contradicted existing jurisprudence of international human rights bodies (like the UNHRC in Toonen v Australia),^[28] and did little to impart the clarity and certainty required for rule of law.^[29] The strategy has nonetheless been deemed deliberate and necessary,^[30] given "deep cleavages in Caribbean society with regard to [LGBTQ] rights and [the Court's] limited competence in the OJ [original jurisdiction]".^[31] The Court's unusual delay (their lengthiest to 2018^[6]) was also noted,^[6] as was their novel blending of original and appellate jurisdiction in interpreting Belize's Act.^[32]

The case endorsed non-discrimination of the basis of sexual orientation, recognised free movement within CARICOM, and clarified the direct applicability of CARICOM law in the legal systems of member states.^[33] It (along with Myrie) "cemented the autonomy and direct availability of supranational law in the Caribbean".^[34] It was followed by McEwan & Ors v AG of Guyana,^[viii] where the Court struck down anti-vagrancy laws which criminalised cross-dressing in Guyana, despite a constitutional savings clause.^[35] These cases (along with Nervais & Severin v the Queen^[ix]) "clearly improved human rights standards in the region".^[36] They further "clearly influenced" the 2018 decriminalisation of homosexuality in Trinidad & Tobago via judicial review,^[36] and a similar ruling by the IACHR against Jamaica in 2020.^[37]

The case received "significant attention" in popular culture and scholarship, due to its relevance to LGBTQ rights.^[1]

• LGBTQ rights in Belize
• LGBTQ rights in Trinidad & Tobago
• Orozco v AG â€“ 2016 LGBTQ rights case in Belize