Emmanual Johnson Chijioke v The Commissioner of Police et al and Benjamin Fiifi Danquah v The Commissioner of Police et al

r .. THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE SAINT VINCENT AND THE GRENADINES HIGH COURT CIVIL CLAIM NO. 232 of 2010 BETWEEN: EMMANUAL JOHNSON CHIJIOKE First Applicant AND THE COMMISSIONER OF POLICE OF SAINT VINCENT AND THE GRENADINES First Respondent THE SUPERINTENDENT OF HER MAJESTY'S PRISONS Second Respondent THE HONOURABLE ATTORNEY GENERAL OF SAINT VINCENT AND THE GRENADINES Fourth Respondent HIGH COURT CIVIL CLAIM NO. 233 of 2010 BETWEEN: BENJAMIN FIIFI DANQUAH Second AppliCalt AND THE COMMISSIONER OF POLICE OF SAINT VINCENT AND THE GRENADINES .first Respondent THE SUPERINTENDENT OF HER MAJESTY'S PRISONS Second Respondent THE HONOURABLE ATTORNEY GENERAL OF SAINT VINCENT AND THE GRENADINES * Fourth Respondent Appearances: Mr. J. Thomas for the Applicants Han. Judith Jones-Morgan, Attomey General for the Respondents · 2010: July 7 August 12 October 21 BACKGROUND

[1]JOSEPH, MONICA J: This is the hearing on two WritsdHabeas Corpus ad subjiciendum filed on 2nd July 2010, upon application by first applil31tEmmanual Johnson-Chijioke and second applicant Benjamin Fiifi Danquah. The a~s daim that they have been unlawfully detained in prison: the first applicant fcJ'''' years six months (from 18th February 2006) and the second applicant for four yellS meijit months (from December 2005).

[2]The applicants seek these reliefs: (1) a declaration IIathir ilcarceration was an illegal act of false imprisonment (2) an order that the appi:al1s be immediately .released from custody (3) an award of: (i) punitive and exemplary dnl!Jes; (ii) damages and costs; (4) any further remedy that the court may deem necessaIJ, ,-q>erand just.

[3]At the hearing of the motions the third respondent, the Ile:torof Public Prosecutions, was "' struck out from the prOCeedings. It was agreed that h ~,*ants be released from the prison into the care of the Red Cross from 1st Septermal1o. and that counsel would file submissions. WRITIEN SUBMISSIONS: 27TH AUGUST 2010 and 21st SEPBlBER 2010 WITNESSES;

[4]Affidavits were filed by the applicants. For the resp<l!~, affidavits were filed by Chief Immigration Officer Stanford Hamilton, CommisliHwr of Police Keith· Miller and Superintendent of Prisons McLauren Rodriguez, woo \1eIe aoss examined; Director of • Family Affairs Division, Carnie Matthews; Senior hHgrciion Officer Kurt Noel, Chief Prison Officer Brenton Charles.

ISSUES

[5]Issues stated by the Attorney General: A. Whether the applicants' detention a Her Mc¥i:(s Prison was unlawful. .B. The impact, if any, which a prohilited ifl1lT9anrs marriage may have on his status as aprohibited immigrant C. Whether the right of the First and Second ~t to be free from torture, or inhuman or degrading punishment (J" other IreitEnt was violated; D. Whether the first and second applicants are eIIiUed tl damages; and E. How should costs be allocated.

BACKGROUND· THE FIRST APPLICANT

[6]The first applicant Emmanual Johnson-Chfi>ke arrivsj i'I St. Vincent in 2001 landing in Bequia by boat - not at aport of entry and Mlhout thel)lSent of an immigration officer.

[7]He lived in Bequia for sometime until he was taken irt> DJsk>dy by members of the Royal Saint Vincent and the Grenadines Police Force (the pcjce). He was released into the care of a citizen of the Saint Vincent and the Grenadill$, Kermeth Joff, a Nigerian by birth who stood as SUf:gty. Information reached lie poli<~ doliies that Mr. Joff was involved in drug trafficking in the State. Information also reeded the police that·the first applicant had become involved in an illegal drug tratiing ring.rating out of Bequia, through the Southem Grenadines and Grenada. The police tried to plJ'Sue him-but he eluded them and travelled to Grenada by speedboat.

[8]In Grenada he married a Vincentian Latoya Williams. He retumed to S1. Vincent and on 20th April 2004 registered in North WindwCld Consti1Bcyand was issued a Vincentian National Identification Card No. 009604. The first aps*:a1t 1ravelled to Saint Lucia by boat where he remained for two years. •

[9]About 14th May, 2006, the Saint Lucian Immigration authories arrested the first applicant. He was deported from Saint Lucia to Saint Vincent (lid l1e Grenadines.

[10]On his return to the State .he had no valid travel doaunents. He had a partially burnt Vincentian identification card. The first applicant was matged with a breach of Section 7 of the Immigration (Restriction) Act (Cap 78) of the ReVised Laws of Saint Vincent and the Grenadines (The Immigration Act). On 9th June 2006, the applicant answered the charge in the Kingstown Magistrate's Court. On 16th June, 2006, the Senior Magistrate made a deportation order and ordered that the first applicant be remanded in custody pending deportation.

[11]While detained in Her Majesty's Prison (the prison) the first applicant, by a letter dated 1st .;; November 2007, from Attorney at Law A. Williams to the Secretary to the Cabinet applied, unsuccessfully, to the Government of the State for resilency and citizenship. The ground of his application was that, because of the civil war in Uberia, he could not return to that country.

[12]That letter stated that he was born in the Republic of Uberia on 16th January, 1969. Attached was a copy of birth certificate - original of which is in the possession of the Immigration Department. BACKGROUND· THE SECOND APPLICANT [13} The second applicant Benjamin Fiifi Danquah arrived in the State from Trinidad and Tobago on Caribbean Star Airlines on 5th August, 2QC!i. He indicated to an immigration officer that he was Simon Patuka. He presented a Sooth African passport in that name, containing his photograph which bore the number 4153298407. issued on 30th July 2001.

[14]He also presented a valid return ticket to South Africa through Trinidad and Tobago and London. The immigration officer permitted him to enter on a two weeks visitor's visa as authorized by Section 18 of the Immigration Act. He vSited the Ministry of Foreign Affairs where he unsuccessfully applied for refugee status. ..

[15]On 9th August 2005 the second applicant, utilizing the Sooth African passport, left the State for the British Virgin Islands via Antigua. He was dmied entry into the British Virgin Islands and was deported! returning to the State witOOut any travel documents. The immigration authorities charged him, in the name of Simoo Patuka, with a breach of Section 7 of the Immigration Act, which was heard at the Kingstown Magistrate's Court on 19th August, 2005. On afinding of guilty it was ordered that he be deported to South Africa and that he be detained at the prison pending deportatioo. [161 The Immigration Department prepared an emergency flayel document for Simon Patuka, and, on 13th October 2005, deported him. The second ~pli::ant returned to the State on the same day having been denied entry by the immigraion authorities in Barbados. He was detained in custody.

[17]The second applicant (as Simon Patuka) was charged with a breach of Section 7 of the Immigration Act, which charge was heard at the Kingsto\WI Magistrate's Court on 14th December 2005. Following a finding of guilty the se<md applicant was ordered to be deported from the State and to be detained at the prison pending deportation. SUBMISSIONS by the Attorney General [18J Where the State mounts a response to awrit of habeas oorptlS which, on its face, demonstrates that .the detention of the individual is lawful, an -applicant for a writ of habeas corpus bears the burden of proving that his de_ioo in the State is unlawful. The Attorney General cited Re Wajid Hassan (1976) 2AER 123. [191 Further, the Attorney General submitted, the legality of an individual's detention should be evaluated with respect to these reference points: the inial ClTest of the individual and the procedure observed: the period for which the individual is detained and the necessity and reasonableness of that period. {201 An individual who enters the state is entitled to the protection of the laws of the State and is subject to its requirements and penalties, thus sUl'Orting the legal truism that one cannot have the benefits without the burdens. The Constitution of the State makes provision for the protection of one's liberty but there are exceptions, one such exception is the deplivation of liberty for the purpose of effecting an irdvidual's expulsion, extradition or lawful removal from the jurisdiction.

[21]The Attorney General submitted that the law that provides for the detention of an individual prior to his lawful removal from the State is the Immigratioo Act which law gives adefinition of prohibited immigrant.

[22]That definition includes an individual who did not enter the State at a port of entry, or without the consent of an immigration officer, in the case of the first applicant, or without a passport, in the case of the second applicant. The I*r presented a -South African passport in the name of Simon Patuka that had not IEen issued by the South African authorities. Presenting apassport that is not genuine, submitted the Attorney General, is equivalent to being without a passport.

SUBMISSIONS by Mr. Thomas

[23]The State authorities have a legal right to detain someooe ordered deported by the court . but legal authorities make the following points: (a) The power to detain exists only when removal is pending. (b) Removal cannot be said to be pending unless itis possible to effect it within a reasonable time. (c) If removal cannot be effected in a reasonable time then the deportee has to be released (d) Where removal was not pending detention is unlawful and the detainee must be released and compensated. •

[24]The State did little or nothing to effect the removal and rep*iation of the applicants but warehoused the applicants for more than four years and six roooths, in the case of the first applicant, and four years and eight months in the case of the second app~nt. He cited B VGovernor of Durham Prison, ex p Hardial Singh (1984) 1AER 984.

[25]The State never sought to test the veracity of the infonnatim in the possession of the Immigration Department or prison authorities. The respondents now rome to the court claiming that the applicants continue to be detained, as they did not cooperate with the State in supplying correct information. The legal authoritEs make it clear that non­ cooperation on the part of a detainee is not a sufficient gRlJnd to detain an individual indefinitely.

[26]Counsel cited a number of authorities including the International Convention on Civil and Political Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms.

THE LAW APPLIED

[27]In Hassan case the applicant had been taken in for questioniJJ by immigration authorities during which he claimed that he had lost his passport and had applied for another. The immigration authorities were suspicious and detained him. The Court refused habeas corpus application as the return, being valid on its face, 1I1e mus was on the applicant to establish prima facie case to show that his detention was ilegal and he had failed so to do. Mr. Thomas sought to discharge that burden by citing' from authorities: The International Convention on Civil and Political Rights reads: "Article 9 - (1) Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be dElJfived of his liberty except on such ground and in accordance with such procedure as are established by law. (4) Anyone who is deprived of his liberty by arrest or detention shall be entitled 0 take proceedings before a court, in order that that court may ~cide without delay on the ilawfulness of his detention and order his release if the detenti:rJ is not lawful." .. And The European Convention for the Protection of HUllan Rights and Fundamental Freedoms which states: "(4) Everyone has the right to liberty and seanity of person. No one shall be deprived of his liberty save in the fdlowilg cases and in accordance with aprocedure prescribed by law."

CONSTITUTION AND IMMIGRATION ACT

[28]The parallel provision to the provisions of those \Almentions is Section 3 of the Constitution that enacts provision for the protection of lie right to personal liberty. Subsection (I) enacts: "No person shall be deprived of his pel'Dlal liberty save as may be authorized by law in any of the following cases, that is to say:­ (i) For the purpose of preventing the unlawful entry of that person into Saint Vincent, or for the Jlirpose of effecting the expulsion, extradition or other lawful remova of that person from Saint Vincent or for the purpose of IestJi;ting that person while he is being a conveyed through Sailt Vincent in the course of his extradition or removal asa conwicted prisoner from one country to . -" . ~ another."

[29]I agree with the Attorney General's submission that, by not entering at a port of entry and not presenting himself to an immigration officer, the first apjicant falls under the definition of prohibited immigrant in the Immigration Act

[30]Section 10 of the Immigration Act enacts in subsectioo (1): "No person shall enter Saint Vincent alii tile Grenadines except at a port of entry." In subsection (2): n "A person entering Saint Vincent CIld the Grenadines by sea shall not disembark without the consent of an IrTllligJalion Officer. ... In subsection (6): "Any person who contravenes, or tals, or refuses to comply with any of the provisions of subsections (1) to (4) wte1 entering Saint Vincent and the Grenadines shall be deemed to be aprlilibited immigrant and may be dealt with as such."

[31]In the case of the second applicant, who entered the State on presentation of a South African passport in the name of Simon Patuka, the Clief Immigration OffICer's affidavit discloses: that, from his enqui!ies, the South African autmrities never issued a passport to a Simon Patuka, that the number on the passport was IICOrded to have been issued to a Johannes Machedi and that the address on the passport does not exist in South Africa.

[32]Section 5of the Immigration Act enacts: n( 1) A person entering St. Vincent and tOO Grenadines without a passport shall be deemed to be a prohibited immigrant unless and until he establishes his identity and nationality t01l1e satisfaction of an Immigration Officer. (2) In this section, "passport" means a passport furnished with a photograph and duly issued, or renewed, ....or some other document establishing the identity and nationality ~ the immigrant to the satisfaction of an immigration officer:"

[33]The Court considers that 'passport' could only mean a valid passport produced by the presenter of that document on entry into the State. To present to an immigration officer, a document that is not genuine or, tells afalsehood abclli the presenter, is equivalent to a person entering the State without a passport. The secom applicant presented a passport that (a) purports to have been issued by an issuing auttoity which, in fact did not issue it to him, (b) which does not establish his identity, falls within the definition of prohibited immigrant.

[34]Both applicants, having failed to comply with the provisions ·of the Immigration Act are prohibited immigrants. They were charged; which charges were heard in a Magistrate's Court and deportation orders were made. Their detentilJ'l was lawful.

[35]Mr. Thomas, while acknowledging that there was a power to detain, submitted that the power to detain an individual pending deportation cann(i be without limit. The applicants, he said, have been incarcerated for many years with no effort being made to expedite their removal from the State. •

[36]On the other hand, the Attorney General maintained" Ills were made for the removal of the applicants from the State.

CIRCUMSTANCES AND WHAT IS-REASONABLE

[37]In deciding whether detention is unlawful, the 19 Jliliple to be applied is that the applicants' detention must not be unreasonable. Ape. of four years and more in prison pending deportation is extraordinary and wool. extraordinary circumstances to be regarded as reasonable. I consider the CirCIlI....of the applicants' detention to determine whether the detention in those circums..s reasonable. I refer to two cases. Woolf, J. in R V Governor of Durham Prison, ex p..... Singh. Para dstated: "Although the power which is given ••Secretary of State...to detain individuals is not subject to any e)fJ!SStmitation of time, I am qune satisfied that it is subject to limitailtt 1st of all, it can only authorize detention if the individual is beilYJ~...pending his removal. It cannot be used for any other pUrpoll. Slmndly, as the power is given in ,"order'i'o"enable the machinery'of detDfi*R to be carried out, Iregard'the' power of detention as being irnJIaIrinited to a period which is reasonably necessary for that PIJfPR 1r!E period which is reasonable will depend upon the circumstanoos....rticular case. What is more, if there is a situation where it is apJRla the Secretary of State that he is not going to be able to operai! Ie llIiIinery provided in the Act for removing persons who are intendela. deported within a reasonable period, it seems to me that it wol*ite~ for the Secretary of State to seek to exercise his power of detenilt • In addition, I would regard it as i~Ulithe Secretary of State should exercise all reasonable expeditioo. Ere that the steps are taken which will be necessary to ensure te Eval of the individual within a reasonable time.

[38]R v Secretary of State for the Home Departme.....WHC 1678 (Admin): "Once the administrative detenilll., an individual pending his deportation had reached a period. hE years and eight months, his continued detention was unlawlii. fi tailure to cooperate with the authorities in acquiring emergenty t:lMtiJcumentation and the risk of him absconding if released did notjllif;is continuing detention, given that the timescale within which his IInDIi 'Nas likely to be achieved was • wholly uncertain, and where conditions on release which provided a proportionate measure of security against the risk of him absconding were available".

[39]The Chief Immigration Officer detailed the deportation machinery: the making of the necessary enquiries in ascertaining the identity of an indivi.tual and the attendant travel arrangements. The Chief Immigration Officer deposed thai the immigration department must communicate with consulates or embassies, liaise with the Ministry of Foreign Affairs and the Police Force. There are unavoidable delays, not ooIy locaHy within the respective ministries and departments, but embassies, consulates CIld other organizations where protocols are to be observed. [401 The Chief Immigration Office deposed that a valid ticket to the homeland would be required. The authorities had also to ensure that the applicant is in possession of documentation that would ensure passage through transitioo ports of the United Kingdom or the United States of America.

[41]The Court comments that that point was vividly demonstriEd in the case of the second applicant who was returned to the State twice, from the British Virgin Islands and from Barbados. I acknowledge the difficulties experienced by the State in making the necessary arrangements. I do not think I can accept those teasons and hold the detention was lawful, but I will take this into consideration when Iam amsidering a longer timeframe for investigation during detention and acompensatory award. \'" THE FIRST APPLICANT· CIRCUMSTANCES

[42]The first applicant was detained in prison under a deportmion order made on 19th June 2006. While detained in prison the first applicant by a letter dated 1st November 2007 from Attorney at law A. Williams to the Secretary to the Cabinet, applied unsuccessfully, to the Government of the State for residency and citizenship.

[43]The ground of his application was that, because of the cilil war in Liberia, he could not return to that country where he was bam ,

[44]So, from late 2007, the State was aware that the first applicant's claim was that he was from Liberia. It is therefore.necessary to look at the activity undertaken by immigration authorities to verify that claim between 2007 and 2010. From the Commissioner of Police's affidavit came the information that, although the ciw war in Liberia came to an official end in 2005, the after effects continue to affect the governance and infrastructure of that country. A BBC update, he deposed, provided information as to Liberia's unstable condition. That condition, deposed the Commissioner of Police, presented achallenge to the State with respect to verifying the first applicant's identity.

[45]I have already mentioned that I acknowledge the challenges faced by the State. From decided cases, it must be shown that the authorities mooe serious efforts to obtain the requisite information by the action they have taken. Was there any attempt to ascertain whether there was a functioning consulate or was it assumed that there was no functioning consulate? I expected to be referred to specific instances of enquiri~s to a Liberian consulate, or for example, of enquiries to the embassies of neighbouring African countries, that might be in a position to supply an answer as to IIAlether Liberian consulates were functioning.

[46]If there is an absence of sufficient activity on the part of immigration authorities in the deportation machinery, then the action falls short of what is required of a State and the detention is unlawful. I find that the action falls short of what is required of the State. , first

[47]The Superintendent of. , Prisons' affidavit evidence was that, while in prison, the. applicant was visited by a Sonia Joseph of Paul's Avenue. who claimed to be agent for the first applicant's sister, who was in the United Kingdool. That information was not transmitted to the police and immigration officers. The fist applicant received telephone calls from someone who claimed to be the first applicant's sister. That information was not conveyed to police and immigration authorities.

[48]The bits of information gathered by various departments were not connected, which connection might have moved the deportation machinety forward. Between 2007 and • 2010, the first applicant fell through acrack in the depcrtation machinery. I find that it was not reasonable for the first applicant to be detained ilr some three plus years. Later, I shall deal with whether becalise of his conduct, aperiod oftime should be discounted.

THE SECOND APPLICANT· CIRCUMSTANCES

[49]When, on the 19th August 2005, the second appli:ant was ordered to be deported, enquiries were made of the British High Commission in Barbatos as to whether avisa was required for travel. Advice was received that it might be wise to alert the consulate for St. Vincent and the Grenadines in the United Kingdom of travel anangements.

[50]Concerned individuals produced an airline ticket to South Africa via Barbados and London. The Immigration Department prepared an emergency passport for the second applicant and he was deported from the State on 13th October, 3)05. . [51]" .. On"anival·-in Barbados, the immigration authoritiesthem...itdicated thatJf the second applicant was being deported he should have been acrompanied by an authorized person from the State and he was returned to the State.

[52]On 24th October, 2005, the Ministry of Foreign Affairs ilfooned the immigration authorities that the information from the South African ConsulaE in Jamaica was that the South African passport was fraudulent. The South African Consulate expressed doubt that the second applicant is aSouth African.

[53]On 14th December 2005 following the hearing of achaye of breach of Immigration laws, a deportation order was made. On 16th December 2005 the second applicant, stating that his name is Simon Patuka (which is incorrect) from Acxra, Ghana, wrote the Commissioner of Police. He stated that he had not been taken bet>re amagistrate in this jurisdiction; that when he travelled he was taken to st. Vincent and not Trinidad where there is an embassy, which would ensure his return to his couniy. He asked for a full investigation into his matter.

On 31ll

[54]March, 2006 Constable Lett recorded a statement from the second applicant According to the affidavit evidence of the Commissimer of Police, information was received that the second applicant was willing to speak mimmigration authorities. [551 On 2151 March 2006, Kirk Noel recorded another statement from him. The Chief Immigration Officer deposed that, on this occasion, the second applicant stated that his name is Benjamin Fiifi Danquah and not Simon Patuka, that a friend in South Africa had supplied him with a South African passport in that name.

[56]The immigration department (now a department separcied from the police department ), made enquiries through the Ministry of Foreign Affairs. as to the location of the nearest Ghanaian Embassy, in pursuit of information as to the second applicant's true identity.

[57]In June 2010, following a request for a social enquiry report, from the Attorney General, . Camt~ .Matthews•. pirector of Family Affairs Divisior:J. Mi~!ty qL1ta,Jiqt;lal <.Moblli~atjQnf Social Development, Youth and Sports, had an interview V4ith the second applicant on 9111 June 2010.

[58]According to Mr. Matthews' affidavit, the second appli<31t told him that he operated under the name of Simon Patuka and that he was from Kasoa. Ghana. He travelled to Sf. Vincent as he desired to experience adifferent culture in a forei~ hl1d.

[59]His claim was that he has two siblings, Isaac Dakoa living in Italy and Dinah D. Dakoa whose mailing address is Ghana, with whom he hCli ooan in written and telephonic communication.

[60]The second applicant informed Mr. Matthews that the Tortolan authorities had confiscated his passport and sent him back to the State without it. (Another explanation from him in a recorded statement was that it had been stolen from him vAlile he was asleep in transit in Antigua). •

[61]He also stated that the immigration authorities had hi ller's licence. Two prison officials confirmed to Mr. Matthews that the immigration ldDties hold a document that the second applicant claims to be a valid driver's license.l'ither the police nor immigration authorities can find any such document).

[62]The authorities do hold a copy of a birth certifi:Himm Ghana bearing the second applicant's name, which was received around April 211. That is a piece of information that could have been checked to ascertain whetheri _ ayalid birth certificate. I have no evidence on this. The second applicant's prolOlldEtention was unlawful, but I find he contributed to it.

DEGRADING TREATMENT

[63]The first applicant's affidavit: "I have been detained at Her M.-Prison for 1594 without charge, trial or conviction. This detenb amounts to false arrest and imprisonment and denial of my ~ in violation of the Vincentian Constitution, international human Jill and international law. In the circumstances, I pray for an end to Iti!ItIg dark night....n

[64]The second applicant's affidavit: "For more than 1460 I have been denilmy liberty and human rights and has been falsely and inhumanely• ...,ned by the state authorities of SVG." In the circumstances, I pray.'end to this long dark night... ..

[65]The applicants do not recount any treatment recEiEclf them or any circumstance that can be regarded as inhuman or degrading treatmelt 'ltd 1IIat there was no inhuman or degrading treatment of the applicants while they weeained.

MARRIAGE OF FIRST APPLICANT

[66]The Attorney General invited the Court to consider whelEr or not the first applicant marrying a Vincentian impacts on the first applicant's case, CIld cited the case of Nielsen v / Barker and Another (1982) 32 WIR 254

[67]The first applicant married a Vincentian which union, he deposed, produced a girl now six years of age. He stated that, using his marriage cel1ificate, he obtained a local Identification card.

[68]The Constitution provides the route of registration as acitizoo for an individual who marries acitizen in Section 93(1): "The following persons shall be entitled, lJIKln making application, to be registered as citizens (a) Any man who is married to a citizen m who has been married to a person who, at any time during the period ....ring which they were married to each other, was acitizen. An application under this section shall be naje in such manner as may be prescribed, as respects that application, by or under a law enacted by Parliament."

[69]In outlining criteria for citizenship two expressions are used in the Constitution: ·shall become" and 'shall be entitled'. An individual satisfying crEria in sections 90, 91 and 92 ·shall become" a citizen. Under those sections there is an absolute right. There is therefore an automatic transition to citizenship, with no dis;retion given to any entity to cause or bring about that transition.

[70]By Section 93(1) of the Constitution an individual within a slated category of persons 'shall be entitled' to be registered as a citizen upon the making of an application. Under that section there is no absolute right. There is not an automatic transition to citizenship but an entitlement to citizenship, to be obtained by applying to an entity (who, by the Immigration Act is a Minister). The fact that an application is to be mCJ:te, strongly suggests that the decision making entity may exercise adiscretion and decide on whether that entitlement is to be translated into the grant of citizenship. The entitlement can be, but may not be (discretion), translated into agrant of citizenship.

[71]Section 93(3) of the Constitution refers to the passing of a law by Parliament that prescribes the manner in which that application may be made. Inherent in that authority is the authority to prescribe conditions. The law enacted by Parliament is the Saint Vincent and the Grenadines Citizenship Act (Cap.BO), which gives discretion to the Minister to grant citizenship with directions as to how that discretion is to be exercised. Section 7 enacts: "A person claiming to be entiHed to be registered as a citizen of Saint Vincent and the Grenadines under the r-ovisions of section 93 of the Constitution may make application to the Minister in the prescribed manner and, in any such case if it appears to the Minister that the applicant is entitled to such registration and that all relevant provisions of the constitution have been complied with, he shall cause the applicant to be registered as acitizen of Saint Vincent iIld the Grenadines."

[72]Here I find that marrying a Vincentian impacts the first arflicant's case by bestowing on him, not an absolute right to citizenship, but rather an en~ment to apply for the grant of citizenship. It does no more than entitle the first applicant., be considered for citizenship. That entitlement is similar to a job situation. The quali'fications that an individual holds entitle him to be considered for a particular job, not to be appointed to that job. I have approached this matter a little differently from the Nielsen case but the result is the same. In that case the Court of Appeal at p284 para. G: said: "In my understanding, the true position is l1at any person who marries a Guyanese citizen is entitled to be registered as a Guyanese citizen under the provisions of article 45 of the Conslitu1i>n, provided, however, that the executive branch of the Government, through adesignated Minister, offers no objection. It is important to understilld that a person does not on marriage automatically take on his wife's Cl'husband's citizenship."

COMPENSATION

[73]Mr. Thomas submitted that false imprisonment is a strict lability wrong and that when it occurs damages are always awarded. He cited R v Govemor of Her Majesty's Prisons Brockhnill ex parte Evans. 27 July 2000, where .. "it was accepted that false imprisonment is atort of strict labily equally clearly deprivation of liberty may be shown to be lawful or justified.» [741 The Attorney General urged that the applicants' detentioo was not contrary to the Constitution and any other law and that they are not entitled to damages.

[75]Section 3 (6) of the Constitution authorizes compensatioo where there is unlawful detention: "Any person who is unlawfully arrested or detained by any other person shall be entitled to compensation therefore from that other person or from any other person or authority on whose OOhalf that other person was acting."

[76]The detention of the applicants was ab initio lawful. The ~plicants' detention became unlawful when the implementation of the deportation order did not take place within a reasonable time. In considering compensation, I consider the reasons why the State did not act within a reasonable time, in addition to the conduct ofl1e applicants.

[77]Did the applicants contribute to the delay by any tactics they employed? In their desire to be granted citizenship did they embark on acourse of condud that brought about delay or contributed to delay and, consequently, brought the demtion within the sphere of unreasonable delay?

[78]The first applicant's intention was quite clear. He married aVincentian so that he would be entitled to apply for a grant of citizenship. The authorities became aware that Liberia is his country of origin when he submitted acitizenship applicatiJn in November 2007.

[79]I find that he contributed to the delay in investigation into his iientity. At that date the first applicant informed the state that he was from Liberia.

[80]There was no activity by the immigration authorities from Nrnember 2007 to 2010 to verify whether that was in fact so. Liberia had been in an unstcj)le situation for many years. It Verifying the information received and obtaining the requisE travel documents might take a longer time than it might take in normal times. I am required to allow a reasonable extended detention timeframe to allow for investigation by the State. Allowing one year for investigation, detention time runs from late 2008 to July 2010. In doing so, I take into consideration that the Commissioner of Police deposed that there were paliicular challenges related to Liberia, of non functioning govemmentdepartments.

[81]In The Queen on the application of HY v Secretary of State for the Home Department (2010) EWHC 1678 (Admin) King, J at para. 88: "Although as I have made clear in my jud(Jl1ent non-cooperation cannot always be a decisive factor so as always to justify a continuing detention no matter how long, I do consider that such non-cooperation may allow as reasonable asubstantially longer period of detention than might otherwise be the case.......Once the claimant began to co-operate. a reasonable period of further time had to be allowed the defendant to investigate whether removal within areasonable time fiane was achievable." [82J The Court has a discretion to make a compensatory award. How do I arrive at a figure? I start by looking at what is claimed. In his submission, fit. Thomas stated that where, there has been false imprisonment. damages are awarded. and cited Tamara Merson v Drexel Cartwright and the Attorney General Privy Co.ell Appeal No. 61 of 2003 where damages were awarded under several heads.

[83]The Court of Appeal of Bahamas in that case commented that the Ieamed trial judge 'irresistibly found that the police had behaved in acallous, unfeeling, high handed, insulting and malicious and oppressive manner both with resrECt to the arrest and false imprisonment as well as the malicious prosecution, the latEr on the basis that the police falsely alleged that she had abetted the commission of the alleged offences of illegally operating a bank. The charges were clearly a ruse to ju~ the arrest. All the charges were subsequently withdrawn."

[84]In the instant case, the arrest was lawful and the charges were heard before a Magistrate. There were no oppressive or related oppressive or malicious factors attaching to his arrest and false imprisonment. The first applicant made no sucll allegation in his affidavit. To • attempt to consider something that is not there wolJdbe .,sercise in futility. What is left is false imprisonment from 2000 to 2010. I award cotIJl8fEIifl of $18,000.00.

[85]I consider the circumstances of the second ~ to determine whether a compensatory award should be made to him. The 8\!1:0111 ""Iieant was using the name of Simon Patuka and he had given wrong leads thii:he _gration authorities followed up. The authorities made enquiries as to the countJy of tri;1 of a Simon Patuka not of Benjamin Oanquah. The second applicant was d~ on two occasions by the State and he was returned to S1. Vincent by the authorifies in hados and the British Virgin. Islands.

[86]In October 2005 the South African Consulate adviSlll the tlnistry of Foreign Affairs that the South African passport held by the second applicat istaa:iulent.

[87]The second applicant continued to claim that he was Snmn Patuka by letter of 1611 Der.ember 2005. and by polir.e recorded statp.ments nf)li "arch 2006 and 15th March 2006.

[88]It was on 21 st March 2006, when Kurt Noel recorded}eta'dler statement that he stated that his name is Benjamin Oanquah from Ghana, 1m in lie Eastem Region Akim Esiem of the Fante Tribe in the Area Care Coste.

[89]Had he given the correct information earlier, the irmiJrafIlfI authorities would most likely have acted more promptly. It is to be remembeled that f1eir fairly prompt action in deporting him on two occasions resulted in the seam ~ant being sent back to the State. The immigration authorities were trying to etsm! tla any action taken would be correct and so avoid the second applicant going ba<i81di:lfll between countries.

[90]The second applicant contributed significanHy m~is uriawful detention. In the circumstances of this case, I do not make any award.

EXEMPLARY DAMAGES

[91]Mr. Thomas submitted that exemplary damages should be awarded because of the oppressive, arbitrary or unconstitutional actions by lIle servants of the State and the prolonged detention of the applicants. Counsel sutrnitted that their case cries out for exemplary damages and cited Attorney General of Trinidad and Tobago v Ramanoop (2005) UKPC 15: (2005) 2W.l.R. 1324 The facts of that case: a police officer went to Ramanoop's home handcuffed him, and while he was in his underwear, beat him repeatedly for about ten minutes. He was shoved into a car by the officer and, while being driven, the obr cuffed and slapped him. At the police station, the officer rammed Ramanoop's head against a wall causing a wound from which blood gushed. He was handcuffed to an iron bar. .The. officer taunted him, then poured rum over his head causing the wound to bum and blood and rum to run into his eyes. He was taken to a bathroom and soaked in the shower while the officer spun him around by the shoulders until he became dizzy. When he refused to do what the officer desired him to do he received more slaps from the officer. [92) The Attorney General submitted that, in determining whether exemplary damages should be awarded, the Court should consider mitigating circumstances such as where the applicantbrings the conduct on the respondent by virile of his behaviour. Additionally, if the Court decides on acompensatory award then that is sufficient and there should not be an award of exemplary damages.

[93]The Attorney General distinguished this case from Atain Takitota v The Attorney General, Director of Immigration and Minister of National Security P.C. 'Appeal No. 71 of 2009, where an exemplary damages award was held to be justified. In that case the claimant was detained in prison for eight years. He shared acell that had afilthy floor and had to pass excrement in one of four buckets which serviced twenty to thirty five persons. The instant case bears no resemblance to the Takitota case.

[94]Para 19 of the Plivy Council's judgment in Ramanoop's case: "An award of compensation will go some distanoe towards vindicating the infringed constitutional right. How far it goes will depend on the circumstances, but in principle it may well not suffice. The fact that the right violated was a constitutional right adds an extra dimension to the wrong. An additional award, not necessarily of substantial size, may be needed to reflect the sense of public outrage. emphasise the importance of the constitutional right and the gravity of the breach, and deter further breaches..... "Redress" in section 14 (of the Constitution of Trinidad and Tobago) is apt to encompass such an award if the court considers it is required having regard to all the circumstances.'

[95]In Ramanoop's case the question of exemplary damages arose because of what that Court found to be 'appalling misbehaviour by a polioe officer', based on the facts eariier stated. Exemplary damages were ordered to reflect the public outrage on the conduct of that police officer. [961 The facts of that case are afar cry from the circumstances in this case. In the instant case the applicants have not given any account of the type of misbehaviour (similar to Ramanoop's case), on the part of polioe or prison authorities. The Court has not been referred to any circumstance that might attract exemplary damages. [971 The claim by the first applicant refers to detention that amounts to false arrest and imprisonment; and denial of his liberty in violation of the Vincentian c;~:lnstitution and international human rights and law. I do not consider that the circumstances of this case amount to conduct that attract exemplary damages.

[98]I have made an award for compensatory damages and I consider that that award is adequate to compensate for the unlawful detention of the first applicant in the circumstances of the case, noting that the first applicant contributed to the delay, in investigation and hence in detention. I do not make any exemplary award. I .. , • I

[99]I make no award in respect of the second applicant for the reasons given eariier relative to compensation award.

CONCLUSION

[100]I have found that the first applicant was unlawfully detained but that he contributed to a certain degree, to the delay in investigation and so to the detention. In the circumstances surrounding the first applicant I have made an award for compensation. I do not think that the circumstances of the first applicant's case give rise to exemplary damages and Ido not make an award of exemplary damages.

[101]I find that the second applicant was unlawfully detained but I find that he contributed significantly to the delay in the carrying out of investigatioos by immigration authorities and hence to the prolonged detention. He gave a false name (Simon Patuka) to the immigration officers. The immigration authorities. issued him,with an emergency document in that name to facilitate his travel to South Africa. Twk:e he was deported from the State and twice he was returned to the State from other countries.

[102]The Immigration authorities made enquiries in the name of Simon Patuka until the receipt of information from the South African consulate that the passport the second applicant had presented, was fraudulent. I do not make any roonetary awards in respect of the second applicant.

[103]On 12th August 2010 the Court released the applicants into the care of the Red Cross, with the State being responsible for accommodation, meals CIld utility services. I note from the Commissioner of Police's affidavit that Cabinet has taken adecision to provide a ticket to the homeland of the applicants. Altematively, to faciitate their integration. I note Mr. Thomas' undertaking that the applicants will cooperate in providing information to the State to enable proper investigation to be conducted. • . . ~

[104]The Court gave a return date of 18th November 2010, in the event it is anticipated that the process of repatriation, which would be attempted, might not be concluded within the time specified (which is a period not exceeding three months commencing 1st September 2010.).

[105]I will be making an order for the applicants to be released, - which means that from the time of their release they will no longer be in the care of the Red Cross.

[106]I will be making an order for the applicants to report to the Chief Immigration Officer until 15th December 2010, as the Court considers that, by that date, arrangements being made will have reached fruition.

COSTS

[107]Mr. Thomas, having been partially successful in his submissions, is entitled to costs. I say partially as the detention of the applicants was ab initio lawful. and theiL prolonged detention was contributed to, in varying degrees. I invite counsel for both sides to address the Court on costs, in chambers.

[108]I thank the Attorney General and Mr. Thomas for the many authorities they cited. I have referred only to those I directly rely on.

[109]It is ordered: (1) Both applicants to be released not later than 4.00 p.m., on 21 st October, 2010, subject to the Court's order being prepared and served on them before that time. (2) Both applicants to report to the Chief Immigration Officer, or person named by him, between the hours of 10.00 a.m. to 4.00 p.m. every Monday commencing on 25th October, 2010, until 15th December 2010. • • • .. (3) Compensatory award of $18,000.00 to the firstappliccm. (4) Costs to counsel for the applicant for chambers.

HIGH COURT JUDGE (Acting)

20th October, 2010

r .. THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE SAINT VINCENT AND THE GRENADINES HIGH COURT CIVIL CLAIM NO. 232 of 2010 BETWEEN: EMMANUAL JOHNSON CHIJIOKE First Applicant AND THE COMMISSIONER OF POLICE OF SAINT VINCENT AND THE GRENADINES First Respondent THE SUPERINTENDENT OF HER MAJESTY’S PRISONS Second Respondent THE HONOURABLE ATTORNEY GENERAL OF SAINT VINCENT AND THE GRENADINES Fourth Respondent HIGH COURT CIVIL CLAIM NO. 233 of 2010 BETWEEN: BENJAMIN FIIFI DANQUAH Second AppliCalt AND THE COMMISSIONER OF POLICE OF SAINT VINCENT AND THE GRENADINES .first Respondent THE SUPERINTENDENT OF HER MAJESTY’S PRISONS Second Respondent THE HONOURABLE ATTORNEY GENERAL OF SAINT VINCENT AND THE GRENADINES * Fourth Respondent Appearances: Mr. J. Thomas for the Applicants Han. Judith Jones-Morgan, Attomey General for the Respondents · 2010: July 7 August 12 October 21 BACKGROUND

[1]JOSEPH, MONICA J: This is the hearing on two WritsdHabeas Corpus ad subjiciendum filed on 2nd July 2010, upon application by first applil31tEmmanual Johnson-Chijioke and second applicant Benjamin Fiifi Danquah. The a~s daim that they have been unlawfully detained in prison: the first applicant fcJ'''' years six months (from 18th February 2006) and the second applicant for four yellS meijit months (from December 2005).

[2]The applicants seek these reliefs: (1) a declaration IIathirilcarceration was an illegal act of false imprisonment (2) an order that the appi:al1s be immediately .released from custody (3) an award of: (i) punitive and exemplary dnl!Jes; (ii) damages and costs; (4) any further remedy that the court may deem necessaIJ, ,-q>erand just.

[3]At the hearing of the motions the third respondent, the Ile:torof Public Prosecutions, was “‘ struck out from the prOCeedings. It was agreed that h ~,*ants be released from the prison into the care of the Red Cross from 1st Septermal1o. and that counsel would file submissions. WRITIEN SUBMISSIONS: 27TH AUGUST 2010 and 21st SEPBlBER 2010 WITNESSES;

[4]Affidavits were filed by the applicants. For the resp<l!~, affidavits were filed by Chief Immigration Officer Stanford Hamilton, CommisliHwr of Police Keith· Miller and Superintendent of Prisons McLauren Rodriguez, woo \1eIe aoss examined; Director of • Family Affairs Division, Carnie Matthews; Senior hHgrciion Officer Kurt Noel, Chief Prison Officer Brenton Charles. ISSUES

[5]ISSUES stated by the Attorney General: A. Whether the applicants’ detention aHer Mc¥i:(s Prison was unlawful. .B. The impact, if any, which a prohilited ifl1lT9anrs marriage may have on his status as aprohibited immigrant C. Whether the right of the First and Second ~t to be free from torture, or inhuman or degrading punishment (J” other IreitEnt was violated; D. Whether the first and second applicants are eIIiUed tl damages; and E. How should costs be allocated. BACKGROUND· THE FIRST APPLICANT

[7]He lived in Bequia for sometime until he was taken irt> DJsk>dy by members of THE Royal Saint Vincent and the Grenadines Police Force (the pcjce). He was released into the care of a citizen of the Saint Vincent and the Grenadill$, Kermeth Joff, a Nigerian by birth who stood as SUf:gty. Information reached lie poli<~ doliies that Mr. Joff was involved in drug trafficking in the State. Information also reeded the police that·the FIRST APPLICANT had become involved in an illegal drug tratiing ring.rating out of Bequia, through the Southem Grenadines and Grenada. The police tried to plJ’Sue him-but he eluded them and travelled to Grenada by speedboat.

[6]The first applicant Emmanual Johnson-Chfi>ke arrivsj i’I St. Vincent in 2001 landing in Bequia by boat – not at aport of entry and Mlhout thel)lSent of an immigration officer.

[8]In Grenada he married a Vincentian Latoya Williams. He retumed to S1. Vincent and on 20th April 2004 registered in North WindwCld Consti1Bcyand was issued a Vincentian National Identification Card No. 009604. The first aps*:a1t 1ravelled to Saint Lucia by boat where he remained for two years. •

[9]About 14th May, 2006, the Saint Lucian Immigration authories arrested the first applicant. He was deported from Saint Lucia to Saint Vincent (lid l1e Grenadines.

[10]On his return to the State .he had no valid travel doaunents. He had a partially burnt Vincentian identification card. The first applicant was matged with a breach of Section 7 of the Immigration (Restriction) Act (Cap 78) of the ReVised Laws of Saint Vincent and the Grenadines (The Immigration Act). On 9th June 2006, the applicant answered the charge in the Kingstown Magistrate’s Court. On 16th June, 2006, the Senior Magistrate made a deportation order and ordered that the first applicant be remanded in custody pending deportation.

[11]While detained in Her Majesty’s Prison (the prison) the first applicant, by a letter dated 1st .;; November 2007, from Attorney at Law A. Williams to the Secretary to the Cabinet applied, unsuccessfully, to the Government of the State for resilency and citizenship. The ground of his application was that, because of the civil war in Uberia, he could not return to that country.

[12]That letter stated that he was born in the Republic of Uberia on 16th January, 1969. Attached was a copy of birth certificate – original of which is in the possession of the Immigration Department. BACKGROUND· THE SECOND APPLICANT [13} The second applicant Benjamin Fiifi Danquah arrived in the State from Trinidad and Tobago on Caribbean Star Airlines on 5th August, 2QC!i. He indicated to an immigration officer that he was Simon Patuka. He presented a Sooth African passport in that name, containing his photograph which bore the number 4153298407. issued on 30th July 2001.

[14]He also presented a valid return ticket to South Africa through Trinidad and Tobago and London. The immigration officer permitted him to enter on a two weeks visitor’s visa as authorized by Section 18 of the Immigration Act. He vSited the Ministry of Foreign Affairs where he unsuccessfully applied for refugee status. ..

[15]On 9th August 2005 the second applicant, utilizing the Sooth African passport, left the State for the British Virgin Islands via Antigua. He was dmied entry into the British Virgin Islands and was deported! returning to the State witOOut any travel documents. The immigration authorities charged him, in the name of Simoo Patuka, with a breach of Section 7 of the Immigration Act, which was heard at the Kingstown Magistrate’s Court on 19th August, 2005. On afinding of guilty it was ordered that he be deported to South Africa and that he be detained at the prison pending deportatioo. [161 The Immigration Department prepared an emergency flayel document for Simon Patuka, and, on 13th October 2005, deported him. The second ~pli::ant returned to the State on the same day having been denied entry by the immigraion authorities in Barbados. He was detained in custody.

[17]The second applicant (as Simon Patuka) was charged with a breach of Section 7 of the Immigration Act, which charge was heard at the Kingsto\WI Magistrate’s Court on 14th December 2005. Following a finding of guilty the se<md applicant was ordered to be deported from the State and to be detained at the prison pending deportation. SUBMISSIONS by the Attorney General [18J Where the State mounts a response to awrit of habeas oorptlS which, on its face, demonstrates that .the detention of the individual is lawful, an -applicant for a writ of habeas corpus bears the burden of proving that his de_ioo in the State is unlawful. The Attorney General cited Re Wajid Hassan (1976) 2AER 123. [191 Further, the Attorney General submitted, the legality of an individual’s detention should be evaluated with respect to these reference points: the inial ClTest of the individual and the procedure observed: the period for which the individual is detained and the necessity and reasonableness of that period. 5 {201 An individual who enters the state is entitled to the protection of the laws of the State and is subject to its requirements and penalties, thus sUl’Orting the legal truism that one cannot have the benefits without the burdens. The Constitution of the State makes provision for the protection of one’s liberty but there are exceptions, one such exception is the deplivation of liberty for the purpose of effecting an irdvidual’s expulsion, extradition or lawful removal from the jurisdiction.

[21]The Attorney General submitted that the law that provides for the detention of an individual prior to his lawful removal from the State is the Immigratioo Act which law gives adefinition of prohibited immigrant.

[22]That definition includes an individual who did not enter the State at a port of entry, or without the consent of an immigration officer, in the case of the first applicant, or without a passport, in the case of the second applicant. The I*r presented a -South African passport in the name of Simon Patuka that had not IEen issued by the South African authorities. Presenting apassport that is not genuine, submitted the Attorney General, is equivalent to being without a passport. SUBMISSIONS by Mr. Thomas

[25]The State never sought to test the veracity of the infonnatim in the possession of the Immigration Department or prison authorities. The respondents now rome to the court claiming that the applicants continue to be detained, as they did not cooperate with the State in supplying correct information. The legal authoritEs make it clear that non­ cooperation on the part of a detainee is not a sufficient gRlJnd to detain an individual indefinitely.

[23]The State authorities have a legal right to detain someooe ordered deported by the court . but legal authorities make the following points: (a) The power to detain exists only when removal is pending. (b) Removal cannot be said to be pending unless itis possible to effect it within a reasonable time. (c) If removal cannot be effected in a reasonable time then the deportee has to be released (d) Where removal was not pending detention is unlawful and the detainee must be released and compensated. •

[24]The State did little or nothing to effect the removal and rep*iation of the applicants but warehoused the applicants for more than four years and six roooths, in the case of the first applicant, and four years and eight months in the case of the second app~nt. He cited B VGovernor of Durham Prison, ex p Hardial Singh (1984) 1AER 984.

[26]Counsel cited a number of authorities including the International Convention on Civil and Political Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms. THE LAW APPLIED

[30]Section 10 of THE Immigration Act enacts in subsectioo (1): “No person shall enter Saint Vincent alii tile Grenadines except at a port of entry.” In subsection (2): “A person entering Saint Vincent CIld the Grenadines by sea shall not disembark without the consent of an IrTllligJalion Officer. … n In subsection (6): “Any person who contravenes, or tals, or refuses to comply with any of the provisions of subsections (1) to (4) wte1 entering Saint Vincent and the Grenadines shall be deemed to be aprlilibited immigrant and may be dealt with as such.”

[27]In Hassan case the applicant had been taken in for questioniJJ by immigration authorities during which he claimed that he had lost his passport and had applied for another. The immigration authorities were suspicious and detained him. The Court refused habeas corpus application as the return, being valid on its face, 1I1e mus was on the applicant to establish prima facie case to show that his detention was ilegal and he had failed so to do. Mr. Thomas sought to discharge that burden by citing' from authorities: The International Convention on Civil and Political Rights reads: "Article 9 – (1) Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be dElJfived of his liberty except on such ground and in accordance with such procedure as are established by law. (4) Anyone who is deprived of his liberty by arrest or detention shall be entitled 0 take proceedings before a court, in order that that court may ~cide without delay on the ilawfulness of his detention and order his release if the detenti:rJ is not lawful." .. And The European Convention for the Protection of HUllan Rights and Fundamental Freedoms which states: "(4) Everyone has the right to liberty and seanity of person. No one shall be deprived of his liberty save in the fdlowilg cases and in accordance with aprocedure prescribed by law." CONSTITUTION AND IMMIGRATION ACT

[32]Section 5of the IMMIGRATION ACT enacts: n( 1) A person entering St. Vincent and tOO Grenadines without a passport shall be deemed to be a prohibited immigrant unless and until he establishes his identity and nationality t01l1e satisfaction of an Immigration Officer. (2) In this section, “passport” means a passport furnished with a photograph and duly issued, or renewed, ….or some other document establishing the identity and nationality the immigrant to the satisfaction of an immigration officer:”

[28]The parallel provision to the provisions of those \Almentions is Section 3 of the Constitution that enacts provision for the protection of lie right to personal liberty. Subsection (I) enacts: "No person shall be deprived of his pel’Dlal liberty save as may be authorized by law in any of the following cases, that is to say:­ (i) For the purpose of preventing the unlawful entry of that person into Saint Vincent, or for the Jlirpose of effecting the expulsion, extradition or other lawful remova of that person from Saint Vincent or for the purpose of IestJi;ting that person while he is being a conveyed through Sailt Vincent in the course of his extradition or removal asa conwicted prisoner from one country to . -” . ~ another."

[29]I agree with the Attorney General’s submission that, by not entering at a port of entry and not presenting himself to an immigration officer, the first apjicant falls under the definition of prohibited immigrant in the Immigration Act

[31]In the case of the second applicant, who entered the State on presentation of a South African passport in the name of Simon Patuka, the Clief Immigration OffICer’s affidavit discloses: that, from his enqui!ies, the South African autmrities never issued a passport to a Simon Patuka, that the number on the passport was IICOrded to have been issued to a Johannes Machedi and that the address on the passport does not exist in South Africa.

[33]The Court considers that 'passport' could only mean a valid passport produced by the presenter of that document on entry into the State. To present to an immigration officer, a document that is not genuine or, tells afalsehood abclli the presenter, is equivalent to a person entering the State without a passport. The secom applicant presented a passport that (a) purports to have been issued by an issuing auttoity which, in fact did not issue it to him, (b) which does not establish his identity, falls within the definition of prohibited immigrant.

[34]Both applicants, having failed to comply with the provisions ·of the Immigration Act are prohibited immigrants. They were charged; which charges were heard in a Magistrate’s Court and deportation orders were made. Their detentilJ’l was lawful.

[35]Mr. Thomas, while acknowledging that there was a power to detain, submitted that the power to detain an individual pending deportation cann(i be without limit. The applicants, he said, have been incarcerated for many years with no effort being made to expedite their removal from the State. 9 •

[36]On the other hand, the Attorney General maintained" Ills were made for the removal of the applicants from the State. CIRCUMSTANCES AND WHAT IS-REASONABLE

[43]The ground of his application was that, because of the cilil war in Liberia, he could not return to that country where he was bam ,

[37]In deciding whether detention is unlawful, the 19 Jliliple to be applied is that the applicants' detention must not be unreasonable. Ape. of four years and more in prison pending deportation is extraordinary and wool. extraordinary circumstances to be regarded as reasonable. I consider the CirCIlI….of the applicants' detention to determine whether the detention in those circums..s reasonable. I refer to two cases. Woolf, J. in R V Governor of Durham Prison, ex p..... Singh. Para dstated: "Although the power which is given ••Secretary of State…to detain individuals is not subject to any e)fJ!SStmitation of time, I am qune satisfied that it is subject to limitailtt 1st of all, it can only authorize detention if the individual is beilYJ~…pending his removal. It cannot be used for any other pUrpoll. Slmndly, as the power is given in ,”order’i’o”enable the machinery’of detDfi R to be carried out, Iregard’the’ power of detention as being irnJIaIrinited to a period which is reasonably necessary for that PIJfPR 1r!E period which is reasonable will depend upon the circumstanoos….rticular case. What is more, if there is a situation where it is apJRla the Secretary of State that he is not going to be able to operai! Ie llIiIinery provided in the Act for removing persons who are intendela. deported within a reasonable period, it seems to me that it wol ite~ for the Secretary of State to seek to exercise his power of detenilt • In addition, I would regard it as i~Ulithe Secretary of State should exercise all reasonable expeditioo. Ere that the steps are taken which will be necessary to ensure te Eval of the individual within a reasonable time.

[38]R v Secretary of State for the Home Departme…..WHC 1678 (Admin): "Once the administrative detenilll., an individual pending his deportation had reached a period. hE years and eight months, his continued detention was unlawlii. fi tailure to cooperate with the authorities in acquiring emergenty t:lMtiJcumentation and the risk of him absconding if released did notjllif;is continuing detention, given that the timescale within which his IInDIi 'Nas likely to be achieved was • wholly uncertain, and where conditions on release which provided a proportionate measure of security against the risk of him absconding were available".

[39]The Chief Immigration Officer detailed the deportation machinery: the making of the necessary enquiries in ascertaining the identity of an indivi.tual and the attendant travel arrangements. The Chief Immigration Officer deposed thai the immigration department must communicate with consulates or embassies, liaise with the Ministry of Foreign Affairs and the Police Force. There are unavoidable delays, not ooIy locaHy within the respective ministries and departments, but embassies, consulates CIld other organizations where protocols are to be observed. [401 The Chief Immigration Office deposed that a valid ticket to the homeland would be required. The authorities had also to ensure that the applicant is in possession of documentation that would ensure passage through transitioo ports of the United Kingdom or the United States of America.

[41]The Court comments that that point was vividly demonstriEd in the case of the second applicant who was returned to the State twice, from the British Virgin Islands and from Barbados. I acknowledge the difficulties experienced by the State in making the necessary arrangements. I do not think I can accept those teasons and hold the detention was lawful, but I will take this into consideration when Iam amsidering a longer timeframe for investigation during detention and acompensatory award. \'” THE FIRST APPLICANT· CIRCUMSTANCES

[42]The first applicant was detained in prison under a deportmion order made on 19th June 2006. While detained in prison the first applicant by a letter dated 1st November 2007 from Attorney at law A. Williams to the Secretary to the Cabinet, applied unsuccessfully, to the Government of the State for residency and citizenship.

[44]So, from late 2007, the State was aware that the first applicant’s claim was that he was from Liberia. It is therefore.necessary to look at the activity undertaken by immigration authorities to verify that claim between 2007 and 2010. From the Commissioner of Police’s affidavit came the information that, although the ciw war in Liberia came to an official end in 2005, the after effects continue to affect the governance and infrastructure of that country. A BBC update, he deposed, provided information as to Liberia’s unstable condition. That condition, deposed the Commissioner of Police, presented achallenge to the State with respect to verifying the first applicant’s identity.

[45]I have already mentioned that I acknowledge the challenges faced by the State. From decided cases, it must be shown that the authorities mooe serious efforts to obtain the requisite information by the action they have taken. Was there any attempt to ascertain whether there was a functioning consulate or was it assumed that there was no functioning consulate? I expected to be referred to specific instances of enquiri~s to a Liberian consulate, or for example, of enquiries to the embassies of neighbouring African countries, that might be in a position to supply an answer as to IIAlether Liberian consulates were functioning.

[46]If there is an absence of sufficient activity on the part of immigration authorities in the deportation machinery, then the action falls short of what is required of a State and the detention is unlawful. I find that the action falls short of what is required of the State.

[47]The Superintendent of. , Prisons' affidavit evidence was that, while in prison, the. , first applicant was visited by a Sonia Joseph of Paul’s Avenue. who claimed to be agent for the first applicant’s sister, who was in the United Kingdool. That information was not transmitted to the police and immigration officers. The fist applicant received telephone calls from someone who claimed to be the first applicant’s sister. That information was not conveyed to police and immigration authorities.

[48]The bits of information gathered by various departments were not connected, which connection might have moved the deportation machinety forward. Between 2007 and • 2010, the first applicant fell through acrack in the depcrtation machinery. I find that it was not reasonable for the first applicant to be detained ilr some three plus years. Later, I shall deal with whether becalise of his conduct, aperiod oftime should be discounted. THE SECOND APPLICANT· CIRCUMSTANCES

[57]In June 2010, following a request for a social enquiry report, from THE Attorney General, . Camt~ .Matthews•. pirector of Family Affairs Divisior:J. Mi~!ty qL1ta,Jiqt;lal <.Moblli~atjQnf Social Development, Youth and Sports, had an interview V4ith the SECOND APPLICANT· on 9111 June 2010.

[49]When, on the 19th August 2005, the second appli:ant was ordered to be deported, enquiries were made of the British High Commission in Barbatos as to whether avisa was required for travel. Advice was received that it might be wise to alert the consulate for St. Vincent and the Grenadines in the United Kingdom of travel anangements.

[50]Concerned individuals produced an airline ticket to South Africa via Barbados and London. The Immigration Department prepared an emergency passport for the second applicant and he was deported from the State on 13th October, 3)05. . [51]" .. On”anival·-in Barbados, the immigration authoritiesthem…itdicated thatJf the second applicant was being deported he should have been acrompanied by an authorized person from the State and he was returned to the State.

[52]On 24th October, 2005, the Ministry of Foreign Affairs ilfooned the immigration authorities that the information from the South African ConsulaE in Jamaica was that the South African passport was fraudulent. The South African Consulate expressed doubt that the second applicant is aSouth African.

[53]On 14th December 2005 following the hearing of achaye of breach of Immigration laws, a deportation order was made. On 16th December 2005 the second applicant, stating that his name is Simon Patuka (which is incorrect) from Acxra, Ghana, wrote the Commissioner of Police. He stated that he had not been taken bet>re amagistrate in this jurisdiction; that when he travelled he was taken to st. Vincent and not Trinidad where there is an embassy, which would ensure his return to his couniy. He asked for a full investigation into his matter. 13 On 31ll

[62]The authorities do hold a copy of a birth certifi:Himm Ghana bearing the second applicant’s name, which was received around April 211. That is a piece of information that could have been checked to ascertain whetheri _ ayalid birth certificate. I have no evidence On this. The second applicant’s prolOlldEtention was unlawful, but I find he contributed to it. DEGRADING TREATMENT

[54]March, 2006 Constable Lett recorded a statement from the second applicant According to the affidavit evidence of the Commissimer of Police, information was received that the second applicant was willing to speak mimmigration authorities. [551 On 2151 March 2006, Kirk Noel recorded another statement from him. The Chief Immigration Officer deposed that, on this occasion, the second applicant stated that his name is Benjamin Fiifi Danquah and not Simon Patuka, that a friend in South Africa had supplied him with a South African passport in that name.

[56]The immigration department (now a department separcied from the police department ), made enquiries through the Ministry of Foreign Affairs. as to the location of the nearest Ghanaian Embassy, in pursuit of information as to the second applicant’s true identity.

[58]According to Mr. Matthews' affidavit, the second appli<31t told him that he operated under the name of Simon Patuka and that he was from Kasoa. Ghana. He travelled to Sf. Vincent as he desired to experience adifferent culture in aforei~ hl1d.

[59]His claim was that he has two siblings, Isaac Dakoa living in Italy and Dinah D. Dakoa whose mailing address is Ghana, with whom he hCli ooan in written and telephonic communication.

[60]The second applicant informed Mr. Matthews that the Tortolan authorities had confiscated his passport and sent him back to the State without it. (Another explanation from him in a recorded statement was that it had been stolen from him vAlile he was asleep in transit in Antigua). 14 •

[61]He also stated that the immigration authorities had hi ller’s licence. Two prison officials confirmed to Mr. Matthews that the immigration ldDties hold a document that the second applicant claims to be a valid driver’s license.l’ither the police nor immigration authorities can find any such document).

[71]Section 93(3) of the Constitution refers to the passing of a law by Parliament that prescribes the manner in which that application may be made. Inherent in that authority is the authority to prescribe conditions. The law enacted by Parliament is the Saint Vincent and the Grenadines Citizenship Act (Cap.BO), which gives discretion to the Minister to grant citizenship with directions as to how that discretion is to be exercised. Section 7 enacts: “A person claiming to be entiHed to be registered as a citizen of Saint Vincent and the Grenadines under the r-ovisions of section 93 of the Constitution may make application to the Minister in the prescribed manner and, in any such case if it appears to the Minister that the applicant is entitled to such registration and that all relevant provisions of the constitution have been complied with, he shall cause the applicant to be registered as acitizen of Saint Vincent iIld the Grenadines.”

[63]The first applicant’s affidavit: "I have been detained at Her M.-Prison for 1594 without charge, trial or conviction. This detenb amounts to false arrest and imprisonment and denial of my in violation of the Vincentian Constitution, international human Jill and international law. In the circumstances, I pray for an end to Iti!ItIg dark night….n

[64]The second applicant’s affidavit: "For more than 1460 I have been denilmy liberty and human rights and has been falsely and inhumanely• ...,ned by the state authorities of SVG." In the circumstances, I pray.’end to this long dark night... ..

[65]The applicants do not recount any treatment recEiEclf them or any circumstance that can be regarded as inhuman or degrading treatmelt 'ltd 1IIat there was no inhuman or degrading treatment of the applicants while they weeained. MARRIAGE OF FIRST APPLICANT

[76]The detention OF the applicants was ab initio lawful. The ~plicants’ detention became unlawful when the implementation of the deportation order did not take place within a reasonable time. In considering compensation, I consider the reasons why the State did not act within a reasonable time, in addition to the conduct ofl1e applicants.

[66]The Attorney General invited the Court to consider whelEr or not the first applicant marrying a Vincentian impacts on the first applicant’s case, CIld cited the case of Nielsen v Barker and Another (1982) 32 WIR 254

[67]The first applicant married a Vincentian which union, he deposed, produced a girl now six years of age. He stated that, using his marriage cel1ificate, he obtained a local Identification card.

[68]The Constitution provides the route of registration as acitizoo for an individual who marries acitizen in Section 93(1): "The following persons shall be entitled, lJIKln making application, to be registered as citizens ­ (a) Any man who is married to a citizen m who has been married to a person who, at any time during the period ....ring which they were married to each other, was acitizen. An application under this section shall be naje in such manner as may be prescribed, as respects that application, by or under a law enacted by Parliament."

[69]In outlining criteria for citizenship two expressions are used in the Constitution: ·shall become" and 'shall be entitled'. An individual satisfying crEria in sections 90, 91 and 92 ·shall become" a citizen. Under those sections there is an absolute right. There is therefore an automatic transition to citizenship, with no dis;retion given to any entity to cause or bring about that transition.

[70]By Section 93(1) of the Constitution an individual within a slated category of persons 'shall be entitled' to be registered as a citizen upon the making of an application. Under that section there is no absolute right. There is not an automatic transition to citizenship but an entitlement to citizenship, to be obtained by applying to an entity (who, by the Immigration Act is a Minister). The fact that an application is to be mCJ:te, strongly suggests that the decision making entity may exercise adiscretion and decide on whether that entitlement is / to be translated into the grant of citizenship. The entitlement can be, but may not be (discretion), translated into agrant of citizenship.

[72]Here I find that marrying a Vincentian impacts the first arflicant’s case by bestowing on him, not an absolute right to citizenship, but rather an en~ment to apply for the grant of citizenship. It does no more than entitle the first applicant., be considered for citizenship. That entitlement is similar to a job situation. The quali’fications that an individual holds entitle him to be considered for a particular job, not to be appointed to that job. I have approached this matter a little differently from the Nielsen case but the result is the same. In that case the Court of Appeal at p284 para. G: said: "In my understanding, the true position is l1at any person who marries a Guyanese citizen is entitled to be registered as a Guyanese citizen under the provisions of article 45 of the Conslitu1i>n, provided, however, that the executive branch of the Government, through adesignated Minister, offers no objection. It is important to understilld that a person does not on marriage automatically take on his wife’s Cl’husband’s citizenship." COMPENSATION

[85]I consider the circumstances of the second to determine whether a compensatory award should be made to him. The 8!1:0111 “”Iieant was using the name of Simon Patuka and he had given wrong leads thii:he _gration authorities followed up. The authorities made enquiries as to the countJy of tri;1 of a Simon Patuka not of Benjamin Oanquah. The second applicant was d~on two occasions by the State and he was returned to S1. Vincent by the authorifies in hados and the British Virgin. Islands.

[73]Mr. Thomas submitted that false imprisonment is a strict lability wrong and that when it occurs damages are always awarded. He cited R v Govemor of Her Majesty’s Prisons Brockhnill ex parte Evans. 27 July 2000, where .. "it was accepted that false imprisonment is atort of strict labily equally clearly deprivation of liberty may be shown to be lawful or justified.» [741 The Attorney General urged that the applicants' detentioo was not contrary to the Constitution and any other law and that they are not entitled to damages.

[75]Section 3 (6) of the Constitution authorizes compensatioo where there is unlawful detention: "Any person who is unlawfully arrested or detained by any other person shall be entitled to compensation therefore from that other person or from any other person or authority on whose OOhalf that other person was acting."

[77]Did the applicants contribute to the delay by any tactics they employed? In their desire to be granted citizenship did they embark on acourse of condud that brought about delay or contributed to delay and, consequently, brought the demtion within the sphere of unreasonable delay?

[78]The first applicant’s intention was quite clear. He married aVincentian so that he would be entitled to apply for a grant of citizenship. The authorities became aware that Liberia is his country of origin when he submitted acitizenship applicatiJn in November 2007.

[79]I find that he contributed to the delay in investigation into his iientity. At that date the first applicant informed the state that he was from Liberia.

[80]There was no activity by the immigration authorities from Nrnember 2007 to 2010 to verify whether that was in fact so. Liberia had been in an unstcj)le situation for many years. 18 It Verifying the information received and obtaining the requisE travel documents might take a longer time than it might take in normal times. I am required to allow a reasonable extended detention timeframe to allow for investigation by the State. Allowing one year for investigation, detention time runs from late 2008 to July 2010. In doing so, I take into consideration that the Commissioner of Police deposed that there were paliicular challenges related to Liberia, of non functioning govemmentdepartments.

[81]In The Queen on the application of HY v Secretary of State for the Home Department (2010) EWHC 1678 (Admin) King, J at para. 88: "Although as I have made clear in my jud(Jl1ent non-cooperation cannot always be a decisive factor so as always to justify a continuing detention no matter how long, I do consider that such non-cooperation may allow as reasonable asubstantially longer period of detention than might otherwise be the case…….Once the claimant began to co-operate. a reasonable period of further time had to be allowed the defendant to investigate whether removal within areasonable time fiane was achievable." [82J The Court has a discretion to make a compensatory award. How do I arrive at a figure? I start by looking at what is claimed. In his submission, fit. Thomas stated that where, there has been false imprisonment. damages are awarded. and cited Tamara Merson v Drexel Cartwright and the Attorney General Privy Co.ell Appeal No. 61 of 2003 where damages were awarded under several heads.

[83]The Court of Appeal of Bahamas in that case commented that the Ieamed trial judge 'irresistibly found that the police had behaved in acallous, unfeeling, high handed, insulting and malicious and oppressive manner both with resrECt to the arrest and false imprisonment as well as the malicious prosecution, the latEr on the basis that the police falsely alleged that she had abetted the commission of the alleged offences of illegally operating a bank. The charges were clearly a ruse to ju~ the arrest. All the charges were subsequently withdrawn."

[84]In the instant case, the arrest was lawful and the charges were heard before a Magistrate. There were no oppressive or related oppressive or malicious factors attaching to his arrest and false imprisonment. The first applicant made no sucll allegation in his affidavit. To • attempt to consider something that is not there wolJdbe .,sercise in futility. What is left is false imprisonment from 2000 to 2010. I award cotIJl8fEIifl of $18,000.00.

[86]In October 2005 the South African Consulate adviSlll the tlnistry of Foreign Affairs that the South African passport held by the second applicat istaa:iulent.

[87]The second applicant continued to claim that he was Snmn Patuka by letter of 1611 Der.ember 2005. and by polir.e recorded statp.ments nf)li "arch 2006 and 15th March 2006.

[88]It was on 21 st March 2006, when Kurt Noel recorded}eta’dler statement that he stated that his name is Benjamin Oanquah from Ghana, 1m in lie Eastem Region Akim Esiem of the Fante Tribe in the Area Care Coste.

[89]Had he given the correct information earlier, the irmiJrafIlfI authorities would most likely have acted more promptly. It is to be remembeled that f1eir fairly prompt action in deporting him on two occasions resulted in the seam ~ant being sent back to the State. The immigration authorities were trying to etsm! tla any action taken would be correct and so avoid the second applicant going ba<i81di:lfll between countries.

[90]The second applicant contributed significanHy m~is uriawful detention. In the circumstances of this case, I do not make any award. 20 EXEMPLARY DAMAGES

[105]I will be making an order for the applicants to be released, – which means that from the time of their release they will no longer be in the care of the Red Cross.

[91]Mr. Thomas submitted that exemplary damages should be awarded because of the oppressive, arbitrary or unconstitutional actions by lIle servants of the State and the prolonged detention of the applicants. Counsel sutrnitted that their case cries out for exemplary damages and cited Attorney General of Trinidad and Tobago v Ramanoop (2005) UKPC 15: (2005) 2W.l.R. 1324 The facts of that case: a police officer went to Ramanoop’s home handcuffed him, and while he was in his underwear, beat him repeatedly for about ten minutes. He was shoved into a car by the officer and, while being driven, the obr cuffed and slapped him. At the police station, the officer rammed Ramanoop’s head against a wall causing a wound from which blood gushed. He was handcuffed to an iron bar. .The. officer taunted him, then poured rum over his head causing the wound to bum and blood and rum to run into his eyes. He was taken to a bathroom and soaked in the shower while the officer spun him around by the shoulders until he became dizzy. When he refused to do what the officer desired him to do he received more slaps from the officer. [92) The Attorney General submitted that, in determining whether exemplary damages should be awarded, the Court should consider mitigating circumstances such as where the applicantbrings the conduct on the respondent by virile of his behaviour. Additionally, if the Court decides on acompensatory award then that is sufficient and there should not be an award of exemplary damages.

[93]The Attorney General distinguished this case from Atain Takitota v The Attorney General, Director of Immigration and Minister of National Security P.C. 'Appeal No. 71 of 2009, where an exemplary damages award was held to be justified. In that case the claimant was detained in prison for eight years. He shared acell that had afilthy floor and had to pass excrement in one of four buckets which serviced twenty to thirty five persons. The instant case bears no resemblance to the Takitota case.

[94]Para 19 of the Plivy Council’s judgment in Ramanoop’s case: "An award of compensation will go some distanoe towards vindicating the infringed constitutional right. How far it goes will depend on the circumstances, but in principle it may well not suffice. The fact that the right violated was a constitutional right adds an extra dimension to the wrong. An additional award, not necessarily of substantial size, may be needed to reflect the sense of public outrage. emphasise the importance of the constitutional right and the gravity of the breach, and deter further breaches..... "Redress" in section 14 (of the Constitution of Trinidad and Tobago) is apt to encompass such an award if the court considers it is required having regard to all the circumstances.'

[95]In Ramanoop’s case the question of exemplary damages arose because of what that Court found to be 'appalling misbehaviour by a polioe officer', based on the facts eariier stated. Exemplary damages were ordered to reflect the public outrage on the conduct of that police officer. [961 The facts of that case are afar cry from the circumstances in this case. In the instant case the applicants have not given any account of the type of misbehaviour (similar to Ramanoop’s case), on the part of polioe or prison authorities. The Court has not been referred to any circumstance that might attract exemplary damages. [971 The claim by the first applicant refers to detention that amounts to false arrest and imprisonment; and denial of his liberty in violation of the Vincentian c;~:lnstitution and international human rights and law. I do not consider that the circumstances of this case amount to conduct that attract exemplary damages.

[98]I have made an award for compensatory damages and I consider that that award is adequate to compensate for the unlawful detention of the first applicant in the circumstances of the case, noting that the first applicant contributed to the delay, in investigation and hence in detention. I do not make any exemplary award. 22 .. I , • I

[99]I make no award in respect of the second applicant for the reasons given eariier relative to compensation award. CONCLUSION

[100]I have found that the first applicant was unlawfully detained but that he contributed to a certain degree, to the delay in investigation and so to the detention. In the circumstances surrounding the first applicant I have made an award for compensation. I do not think that the circumstances of the first applicant’s case give rise to exemplary damages and Ido not make an award of exemplary damages.

[101]I find that the second applicant was unlawfully detained but I find that he contributed significantly to the delay in the carrying out of investigatioos by immigration authorities and hence to the prolonged detention. He gave a false name (Simon Patuka) to the immigration officers. The immigration authorities. issued him,with an emergency document in that name to facilitate his travel to South Africa. Twk:e he was deported from the State and twice he was returned to the State from other countries.

[102]The Immigration authorities made enquiries in the name of Simon Patuka until the receipt of information from the South African consulate that the passport the second applicant had presented, was fraudulent. I do not make any roonetary awards in respect of the second applicant.

[103]On 12th August 2010 the Court released the applicants into the care of the Red Cross, with the State being responsible for accommodation, meals CIld utility services. I note from the Commissioner of Police’s affidavit that Cabinet has taken adecision to provide a ticket to the homeland of the applicants. Altematively, to faciitate their integration. I note Mr. Thomas' undertaking that the applicants will cooperate in providing information to the State to enable proper investigation to be conducted. 23 • . . ~

[104]The Court gave a return date of 18th November 2010, in the event it is anticipated that the process of repatriation, which would be attempted, might not be concluded within the time specified (which is a period not exceeding three months commencing 1st September 2010.).

[106]I will be making an order for the applicants to report to the Chief Immigration Officer until 15th December 2010, as the Court considers that, by that date, arrangements being made will have reached fruition. COSTS

[107]Mr. Thomas, having been partially successful in his submissions, is entitled to costs. I say partially as the detention of the applicants was ab initio lawful. and theiL prolonged detention was contributed to, in varying degrees. I invite counsel for both sides to address the Court on costs, in chambers.

[108]I thank the Attorney General and Mr. Thomas for the many authorities they cited. I have referred only to those I directly rely on.

[109]It is ordered: (1) Both applicants to be released not later than 4.00 p.m., on 21 st October, 2010, subject to the Court’s order being prepared and served on them before that time. (2) Both applicants to report to the Chief Immigration Officer, or person named by him, between the hours of 10.00 a.m. to 4.00 p.m. every Monday commencing on 25th October, 2010, until 15th December 2010. 24 • • • .. (3) Compensatory award of $18,000.00 to the firstappliccm. (4) Costs to counsel for the applicant for chambers. HIGH COURT JUDGE (Acting) 20th October, 2010