According to Tomlinson, the relative provisions in the laws of both countries are against the Revised Treaty of Chaguaramas which provides for the free movement of Caricom nationals within the region.
“As long as they remain on the statute books there is the continued threat of denial of entry and prosecution,” Tomlinson’s lawyer, Douglas Mendes, SC, submitted yesterday at the start of the two-day hearing of Tomlinson’s legal challenge, at the Caribbean Court of Justice, Port-of-Spain.
Tomlinson, who testified yesterday via video link from Jamaica, said from as far as he could remember, he had been attracted to males.
He also admitted he had been in a heterosexual marriage and has a 12-year-old son who lives in Belize, and as a result of that country’s Immigration Act (Section 5), he is unable to visit his son.
He said despite claims by authorities of that country that laws preventing homosexuals entry are often unenforced, if he was to enter a country with such a ban, he would be constrained as an attorney to declare his sexuality, and risk prosecution.
“I don’t travel to a country that has a ban on homosexual entry,” Tomlinson said.
Tomlinson, who is now in a same-sex marriage to a Canadian pastor, is seeking relief from the CCJ for the breaches of right to freedom of movement, and not to be discriminated against by Section 5 of the Immigration Act of Belize and Section 8 of the Immigration Act of Trinidad and Tobago.
However, also testifying yesterday in Trinidad were Maria Marin, acting director of the Immigration and Nationality Department of Belize and acting Chief Immigration Officer of Trinidad and Tobago Gerry Downes, both of whom admitted there was an unwritten policy that does not enforce or strictly apply the provisions of the Immigration Act which prohibits entry of homosexuals.
“For immigration purposes, we will not prosecute, based on homosexual orientation,” she said, adding that Belize immigration officers has never denied entry to a person based on sexual orientation.
“We will not prosecute just on the basis of a person being gay,” she insisted.
“We do not enforce it (Section 5) as a matter of policy,” she said.
Marin referred to the docking of a cruise ship on which hundreds of gay men were allowed entry into Belize without any of them being prosecuted by immigration officials there.
She did admit that she was unaware of the policy of the Director of Public Prosecutions on the issue, and of several anti-gay marches in Belize City, led by predominately church groups.
Downes revealed that new immigration officers are now being exposed to training where at no time they are trained to identify homosexuals.
“We do not enquire about the sexual orientation of a person,” he said, of foreign or regional visitors to the country, admitting also that there was no written policy document which states that the local Immigration Division does not screen persons for entry, based on the sexual preferences.
Downes said he was aware that Sir Elton John had to be granted a special permit to enter the country to perform at the Tobago Jazz Festival in 2007.
He could not say if that was as a result of the condemnation of Sir Elton’s visit by local churches on the island, but it became necessary because his entry would have been in contravention of Section 8 (1) of the Immigration Act as he was a confessed homosexual.
Downes said he knew Tomlinson was a homosexual, but was also a Caricom national. It has been suggested by the TT Government that the Immigration (Caricom Nationals Skills) Act repeals Section 8 (1), but Downes admitted that Tomlinson, by declaring his sexual orientation, ran the risk of being prohibited from entering the country.
In his address, Mendes said TT has only given an undertaking to enforce the Treaty’s provisions but did not repeal the immigration act.
“The question arises why not amend the law if there is a policy not to prohibit homosexuals from entering into Trinidad and Tobago?” he said.
“The law violates the Treaty... And there is nothing to stop the authorities from changing their minds (to enforce Section 5 (Belize) and 8 (Trinidad),” he said. As it relates to the unwritten policies of both countries not to prohibit entry to homosexuals, Mendes said they were both on uncertain and shady grounds.
“Administrative practice is not enough. No one has said why the legislation has not been amended,” he said.
Addresses continue today at the hearing, which is being presided over by CCJ president Sir Dennis Byron and Justices Jacob Wit, Rolston Nelson, Adrian Saunders and Winston Anderson.
In May 2014, the CCJ ruled that Tomlinson has an arguable case against Belize and Trinidad and so admitted his application to have the matter heard by the regional court.
The Government of Belize has told the CCJ that Tomlinson had actually travelled to Belize on multiple occasions, and was never denied entry, while he has visited Trinidad on four occasions prior to finding out that the ban on homosexuals entering the country existed. The TT Government is represented by Seenath Jairam, SC, Wayne Sturge and Gerald Ramdeen while Nigel Hawke appear for the Belize Government. Caricom is also represented at the trial.