Tomlinson v. Belize and Trinidad & Tobago

Tomlinson v. Belize and Trindad & Tobago, CCJ (2013); CCJ Application No. OA 2 of 2013
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The petitioner was a homosexual man and an LGBT activist who had traveled to Belize and Trinidad and Tobago; he had never been denied entry into either state. When he learned that section 5 of the Belize Immigration Act and section 8 of the Trinidad and Tobago prohibited homosexuals, prostitutes, or any person who living off the proceeds of being a homosexual or prostitute to be immigrants he refused further travel to these two states in order to avoid violating the law and claimed to have suffered prejudice thereby. The petitioner filed suit against both states.

The Court considered the admissibility of the petition.  As the petitioner had never been denied entry into either state nor could show that he had good reasons to fear refusal of entry, the Court determined that the issue was whether the petitioner had been nonetheless prejudiced in respect of the enjoyment of his Caribbean Community rights. The petitioner argued that “the very existence of the impugned Immigration Acts constitutes prejudice, whether or not the governments of these States have in the past applied or intend in the future to apply the prohibition by refusing entry to homosexuals.”

The Court found that such a legal basis existed in other jurisprudence, including the European Court of Human Rights and the UN Human Rights Committee, and that those courts had determined that in certain circumstances, the mere existence of legislation could constitute a violation of a person’s right, even if the legislation was not enforced and the person did not have a particularized injury.  Thus, without making any determination as to whether the petitioner’s rights had been prejudiced, the Court granted the petitioner special leave to commence proceedings against Belize and Trinidad and Tobago.

 

“The main issue in this particular case and at this particular stage is therefore whether it is arguable that the mere existence of the respective Immigration Acts of Belize and Trinidad and Tobago has resulted in  Tomlinson’s having been prejudiced within the meaning of Article 222(b) RTC.” Para. 4

“In relation to homosexuals, there is indeed international case law, in particular jurisprudence of the European Court of Human Rights3 and the UN Human Rights Committee,4 which suggests that under certain circumstances the mere existence of legislation, even if not enforced, may justify a natural or legal person to be considered a victim of a violation of his or her rights under an international human rights instrument. Whether this provides a sufficient basis for ultimately accepting prejudice in the context of Community law in general and in this case in particular, bearing in mind the text of Article 222, is, of course, far from certain.” Para 6.

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