Getting it right on free movement in CARICOM
We are days out from the next Summit Meeting of CARICOM Heads of Government and there has been no concrete update on the carefully crafted Conference decision on full free movement which had been taken in July 2023. On that occasion, the distinguished Heads of Government, while undergoing a collective reality check on the 50th Anniversary of CARICOM, acknowledged that free movement, one of the cornerstones of the integration movement’s flagship Single Market and Economy, should have already become a reality. Yet the “blurb” put out by the Secretariat on 21 June on this imminent 47th Meeting of Heads of Government scheduled for Grenada, from 3-5 July, only goes so far as to say that “Heads of Government will also review the progress towards the goals for full free movement…’.
It is no doubt fortuitous that it was the then Chairman of CARICOM, Prime Minister Roosevelt Skerrit, who has responsibility in the CARICOM Quasi Cabinet for Labour and free movement of skills, who had spearheaded this thrust. Under the rubric of “CARICOM Single Market and Economy”, the Conference, in classic best-endeavour CARICOM-speak, ‘agreed to work towards the free movement of all CARICOM nationals within the Community by 31 March 2024’ (that is, three months and counting). More, it was agreed that ‘…any appropriate amendments to the Revised Treaty… would be completed in the intervening period’.
A couple of things have to be said, if only in defence of my legal colleagues who set themselves a rather ambitious agenda, in a relatively short time frame of nine months. First off, this decision could not have been framed in anything other than aspirational language, such is the complexity required in the amendment(s) of the free movement regime which, beyond the amendment of the Revised Treaty, would have to be incorporated into domestic legislation in order to take full effect. This is so albeit the CCJ has opined in the Shanique Myrie case that Member States which partake in a Community decision are bound thereby and should respect it.
Further, legislative and Treaty amendment is a laborious, careful task, where checks and double-checks have to be made for (in)compatibility with other Treaty provisions and/or other existing legislation. Through the Community’s decision-making process, once those amendments had been identified and drafted, the senior legal officials and the esteemed Attorneys-General/Ministers of Legal Affairs would have had to slot meetings into their otherwise busy schedules, in time to present a clean text of amendments for approval by the Supreme Organ of the Community at the previous meeting of the Conference of Heads of Government last March: I do not recall seeing any report that that process had been done and ready, unless I missed it.
As regards the formal aspects of the decision’s implementation, it does not include nationals from The Bahamas and Montserrat, which are not party to the CSME arrangements, albeit they are members of the Community. It is to be recalled also that Antigua and Barbuda had entered a reservation to the 2007 decision of the Conference to grant an automatic stay of six months upon entry to deserving CARICOM nationals exercising the right to free movement. Again, with regard to the Conference decision in 2009 to expand the categories of workers as listed in Article 46 of the Revised Treaty to include household domestics, Antigua and Barbuda had been granted a five-year derogation from such an expansion. And finally as regards the Conference decision to further extend the categories of workers to include agricultural workers and security guards,
Antigua and Barbuda and Saint Kitts and Nevis were in 2019 given a special dispensation to opt out therefrom. Going forward, the position would need to be clarified as to how any open-ended free movement for the entire Community would apply in these pre-existing circumstances.
It is also noteworthy to put the issue of free movement, especially as it relates to Haitian nationals, into a historical context. Over the years, the free movement issue has been the subject of rich and wideranging debate. The Achilles Heel was of course the applicability of this policy to a Member State which has had a long history of out-migration, where the harsh domestic conditions produced a steady flow of “boat people”, intent of landing on the shores of Florida. Consequently, neighbouring Member States like Jamaica and The Bahamas, and Associate Members like Turks and Caicos Islands and Cayman Islands, were likely to feel the brunt whenever boats went off course on that treacherous journey. From a legal standpoint, these persons were in the main economic migrants fleeing the hardship of day to day existence in Haiti, rather than refugees who would be subject to political persecution, should they be returned to their homeland.
One view advanced was that Haiti, as a full member of CARICOM, should enjoy all the benefits of membership, including the right to free movement of its nationals within the CSME, the peculiarity of its migratory situation notwithstanding. It was insufficient to the champions of free movement that Haiti at the time was still not fully CSME-complaint and that a case could be made out for a phased approach towards the full implementation of these rights for Haitians, in lockstep with the understandable linguistic and other challenges and capacity constraints that the
country was experiencing. This had become especially evident in the aftermath of the devastating 2010 earthquake and the political turmoil that continually hampered policy decision-making. In contrast, an alternative viewpoint acknowledged the practical aspect of what the extension of free movement to Haiti in its peculiar situation portended, for exactly the same reasons, replete with all the pitfalls of trafficking in persons and sexual and other exploitation.
In the end, a compromise approach was identified: rather than a blanket prohibition on the free movement of Haitians within the Community, the holders of
Haitian diplomatic passports and Haitians travelling on official business – for example, to attend a CARICOM meeting – and Haitian nationals who were the holders of US, UK or Schengen visas, would be permitted to move freely. That compromise was championed by a number of Member States that were not inclined to shut the door completely against Haitians’ right to free movement: Guyana, led at the time by an “Indian government” was one such Member State.
It was for me back then a personal challenge to accept the fact that the Community was, as it were, “outsourcing” a key immigration decision-making process to third countries, including two Metropoles, France and the United Kingdom. But a sobering influence eventually pervaded and the practical aspect of the arrangement won me over; after all, anyone who could withstand the rigours and jump through the hoops of getting such a visa, was likely a good candidate to benefit from the free movement regime.
In 2018, a debate once again ensued over the unevenness of the free movement regime as it pertained to Haitians. On that occasion, the full membership camp won the day in favour of the right to free movement being afforded to Haitians, in like circumstances as with any other CARICOM national. Coupled with the advances in air travel within the Caribbean, it thus became possible, via some carriers, to leave Haiti by air and arrive in another Member State, either directly or by a same day stop-over.
Soon after that position was canvassed, the practical side of what it meant began to manifest itself. There were enterprising “middle-men” telling prospective Haitian migrants that for a fee, they could not be turned back on arrival in Barbados and that jobs awaited them, or that in Guyana they would be met and chaperoned onward to Brazil and eventually journey overland to the US, or eastward to French Guiana via another free movement Member State, Suriname. A small number of those Haitians chose to stay and work in Guyana in service sectors such as private security and hospitality, proving to be
dependable and hard-working staff. However as a totally unanticipated consequence, this policy approach created a veritable cash cow for human traffickers.
It is to be noted also that the introduction of free movement within CARICOM over the years was not attended by any pilgrimages out of any other Member State besides Haiti. For that matter, neither has there been a mass exodus of Guyanese to the UK, consequent to the more recent removal of the visa requirement, with the understanding always that the destination country reserves the right of refusal to any undesirable traveler.
In the face of the domestic challenges arising from the immigration pressures, as well as being likely to be regarded by the international community as complicit in trafficking in persons (TIP), with all the condemnation and possible sanctions that came with that charge – never mind that some of these very sanctioning countries were in fact contributing to the pull factors of out-migration from Haiti – Member States of CARICOM found themselves needing to revisit their position as regards Haiti, as a result of these unintended consequences.
Given that the attractiveness to these migrants of destination countries like Barbados, Guyana and Suriname was much more evident when compared to other Member States (The Bahamas and to a lesser extent Jamaica, has always had a problem with Haitian immigrants, because of its geographical location and its proximity to the Florida coastline), these Member States were constrained to (re)impose restrictions on the implementation of free movement by Haitians.
To be clear, this was not a unilateral decision by any one country, but rather a similar determination that was made by various Member States. Again, it is to be noted that such restrictions were imposed by countries like Guyana and Suriname, (the latter now) led by “Indian governments”, as well as Barbados and Jamaica, led by Afro-Caribbean nationals – so much for racial discrimination, or could it possibly be that the latter two are
discriminating against their own!?
The Community is once again faced with a further extension of the free movement regime, on this occasion to ‘all categories of people to live and work’ in the Member States, following the momentous decision taken by the Conference on the occasion of CARICOM’s 50th Anniversary last year. Whither Haiti in all this? To the free movement pundits, to those who would be inclined to shout (more?) discrimination against Haitians, here is a newsflash: as stated last year at the time the decision was announced, by Prime Minister Mia Mottley of Barbados, who has responsibility for the CSME in the CARICOM Quasi-Cabinet, the current situation whereby some Member States impose visa restrictions on Haitian nationals will continue, that country’s full membership status notwithstanding. As an aside, Haiti up until recently has not been living up to the democratic credentials for which the Community’s members are generally known, given the governance and security crisis, political turmoil and constitutional stalemate that negatively impacted the country.
Moreover, as disclosed by Prime Minister Mottley, none other than the then Prime Minister of Haiti, M. Ariel Henry, had asked the Conference for a derogation from the full free movement decision, in acknowledgment of the grave humanitarian crisis and the continued crush of migrants fleeing his country. It is therefore not sustainable in the current circumstances for persons to be continually advocating for the right of free movement within CARICOM to be granted once again to Haitians, when the authorities in that country recognize the inherent challenges in so doing.
There may also be a domestic constituency here that would argue that it is inequitable and discriminatory for Guyana to absorb thousands of Venezuelan migrants fleeing the economic hardship in our neighbor to the West, while imposing visa requirements on nationals of a CARICOM Member state. It should be recognized that cross border migration from a neighbouring country requires a fundamentally different response, on strictly humanitarian grounds, when contrasted with the (new) flow of “plane people” (as opposed to “boat people”) that had started to emigrate from Haiti, some 2000-odd kilometres away. Thus desperate travelers who were adrift at sea and wash up on a coastland deserve humanitarian treatment, but that ought not necessarily to be extended in the same way to ticketed passengers on scheduled commercial flights who are travelling opportunistically between fixed ports of exit and entry. Analogously, in times of war, there are legal obligations which require prisoners to be treated humanely and for enemy combatants in distress at sea to be rescued and cared for.
Furthermore, if the charge of discrimination against Haitians in favour of Venezuelans is read against Guyana, should it similarly be read against Trinidad and Tobago – another CARICOM Member State currently led by an Afro-Caribbean government - which is at the closest point 12 kilometres from Venezuela and which, while taking in Venezuelan migrants, also sets conditions for the entry of Haitian nationals into that country?
So what then is the free movement landscape likely to look like, when the Conference is finally ready to implement its decision? In a word, the answer is anything but uniform. Already it has been pointed out that Antigua and Barbuda and Saint Kitts and Nevis have along the way requested not to be included in the expansion of the regime to certain categories of workers. Understandably therefore, a decision to allow full free movement of all persons, not just certain categories of skilled labour, would quite possibly prove challenging for those two Member States, absent an improvement in the local conditions having occurred over time.
It must be borne in mind that land is even more finite in the island nations that comprise the OECS, when compared to the mainland Member States. Moreover, it is a truism that the reluctance of some of these islands to fully embrace the expansion of the free movement regime is ironically a direct consequence of their previously open and generous immigration policies, of allowing practically all comers to live and work within their borders. This has been passionately articulated on occasion in the past and is reflected in their current demographics, with resident non-nationals equaling in number the indigenous citizens in some instances.
For oil rich Guyana, a word of caution perhaps needs to be sounded. If a recent job fair in Trinidad and Tobago is anything to go by – that country has had a vibrant oil and gas sector for decades – the swarm of job seekers who attended that event are likely to want to move freely southward to this CARICOM neighbor. However, as the government and the private sector here have both been lamenting about real and impending labour shortages – even as regards truck drivers – this might not altogether be a bad thing, as the absorptive capacity apparently exists due to our expanding economy. Data suggests that there is need for specialist fitters, underwater welders, divers as well as other types of skilled labour in the support services, which might not be readily available incountry. In addition, our tourism, entertainment, hospitality, real estate, food and beverage, private security, transportation and logistics sectors could also be beneficiaries of an expanded free movement regime. Guardians of Local Content beware, as CARICOM nationals cannot be discriminated against because of their nationality!
In addition to the specific derogation reported last year on behalf of Haiti – there is no indication as yet that the Transitional Presidential Council, appointed with CARICOM’s blessing, would want otherwise – Prime Minister Mottley also referred to the possibility of certain countries with ‘peculiar circumstances’ requiring carveouts. Presumably, these would be not unlike other derogations that have been sought in the past.
As is the case as regards the roll-out of other supporting arrangements for the CSME, one likely approach would be to let a “coalition of the willing” proceed, if these countries are ready to go the whole hog on the implementation of full free movement. For other Member States, a phased approach could be applied, based for example on selected new categories of workers, numbers of immigrants per annum (quotas and lotteries might likely send the wrong message), or setting a time frame for the introduction of the changes. Still others Member States might seek more time for national consultations with stakeholders, in order to facilitate infrastructural and logistic preparation for implementation of the decision.
One should therefore not hold one’s breath on July 5 for any major seismic shift on this issue. The free movement landscape in CARICOM is likely in the short term to remain undulating, to take account of various national priorities and conditionalities. But for sure, Haiti will not at this time feature in this new dispensation, at the request of the government of the day in 2023 for a derogation from the decision, and by the acquiescence of the Conference of Heads of Government to that request.