By Jasmyn Sargeant
Migration between Venezuela and Trinidad and Tobago is not a recent phenomenon. We have seen the influence of this migration in certain aspects of our culture without having to name them. However, recently the discussion has shifted now labeling Venezuelan migrants as refugees and questions are raised as to the legal obligations of Trinidad and Tobago in aiding those who seek asylum.
So what’s the answer?
International Law
The functioning of Refugee law internationally falls under the United Nation’s Convention and Protocol Relating to the Status of Refugees. According to article 1(A)(2) a refugee is to be considered someone who has “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
This means that in order for an asylum seeker to be granted refugee status they must have a well-founded fear of persecution BASED on at least one of the five grounds:
- Race
- Religion
- Nationality
- Political opinion
- Membership of a particular social group
It should be understood that a person being in a country “illegally” still allows them the right to seek asylum as per Article 31 (1) of the Convention. In fact someone who applies for asylum can never be described as an ‘illegal person’ in law.
Another important aspect of refugee law is the principle of non-refoulement which is provided for in Article 33 of the Convention. Non-refoulement essentially means that a person should not be returned to a country where their life or freedom would be threatened based on a characteristic falling under one of the five grounds.
Also the definition of persecution legally is not concretely defined and is under the discretion of judges/ tribunals. Usually the persecution is proven with sufficient evidence of infringement of human rights due to the fact that the person can relate it to one of the 5 grounds. When an immigrant seeks asylum there is a mandatory legal process that must be followed to determine whether the applicant falls within the protection of the Convention.
Domestic Law
Although Trinidad and Tobago is signatory to the Convention since November 10th, 2000, it has not been incorporated into local law which means that Parliament has not passed any law for the Government to follow pertaining to asylum seekers and refugees. Currently, the procedure is done in collaboration between the Refugee Unit in the immigration division of the Ministry of National Security and the office of United Nation’s High Commissioner for Refugees (UNHCR), whose implementing partner is the Living Waters Community.
In 2014, the Government at the time developed a national policy to address refugee and asylum matters in the Republic of Trinidad and Tobago. A policy which is supposed to aim to pass local legislation and move to having the Government be the agency determining refugee status, which is the usual procedure in many other countries signed to the Convention. However, there has been no legislation enacted in refugee law yet.
Venezuelan Migrants
There has been an exodus of persons from Venezuela moving / fleeing to different countries due to the political and economic climate in the country. Due to Trinidad’s proximity to Venezuela, we have become one of the main destinations where migrants seek asylum. On entry or being found in Trinidad or Tobago, Venezuelan nationals (or any other national) are entitled to seek asylum in the country.
According to Amnesty International, there have been reports as up to 2019 of extrajudicial killings, arbitrary detention and excessive force amongst other infringements on human rights. These are often done against persons who are publicly critical of the Government which can be considered persecution due to political opinion.
However, not every migrant from Venezuela may satisfy the test as set out in the Convention. Their ability to prove persecution would not be that it simply exists in the country but they would have to show, given sufficient objective evidence that they personally are fearful or should be scared of persecution due to their political opinion or any of the other grounds in the Convention (race, religion, nationality or a member of a particular social group). As stated before this would have to be satisfied through the respective agency assigned to determining refugee status in Trinidad, the UNHCR. In the event that their evidence is not persuasive enough to satisfy the test considering the principle of non-refoulement, their application for asylum would be rejected.
Due to the large number of migrants from Venezuela, in 2019, the Government decided to allow migrants in the country to register and therefore be allowed to work for a period of one year (which is now extended to July 2021) to regulate the conditions in which the migrants are treated and allow them to earn a living. More than 16,000 Venezuelan nationals were registered.
This process was not to determine whether the migrants were refugees but to allow them to register and be able to work. Many of the migrants who may not have fallen in line with the Convention to establish evidence of a well-founded fear of persecution based on the five grounds were given legal protection to work. Therefore being able to provide for their families, contribute to the labour force and the economy. However, it is argued that the time frame allowed for registration was too short to accommodate the number of nationals in the country and has left many people unregistered and no legal permission to work.
Conclusion
The economic and political situation in Venezuela along with tensions pushed by international powers may not be resolved soon and migration continues from the country to Trinidad and Tobago. Therefore there needs to be a solid framework to regulate and address the migrant situation as lives are at risk.
Infringement on human rights should not and never be the solution.
References
Alexander, G., 2020. PM Rowley not backing down on migrant stance. Trinidad and
Tobago Guardian, [online] Available at: <https://www.guardian.co.tt/news/pm-rowley-
not-backing-down-on-migrant-stance-6.2.1265119.58a4baf053> [Accessed 16
January 2021].
Amnesty.org. 2020. Everything You Need To Know About Human Rights In
Venezuela. [online] Available at:
<https://www.amnesty.org/en/countries/americas/venezuela/report-venezuela/>
[Accessed 30 November 2020].
Convention and Protocol Relating to the Status of Refugees. 1967. [Online].
[Accessed 26 November 2020] Available from: https://www.unhcr.org/3b66c2aa10
De Silva, R., 2020. Registered Venezuelans Want More Time In Trinidad & Tobago.
[online] guardian.co.tt. Available at: <https://www.guardian.co.tt/news/venezuelans-
want-more-time-in-tt-6.2.1130395.e11f7772ad> [Accessed 30 November 2020].
Government of Trinidad and Tobago, 2014. A Phased Approach Towards The
Establishment Of A National Policy To Address Refugee And Asylum Matters In The
Republic Of Trinidad And Tobago.
UNHCR Trinidad and Tobago. n.d. International Protection In – UNHCR Trinidad And
Tobago. [online] Available at: <https://help.unhcr.org/trinidadandtobago/about-
trinidad-and-tobago/international-protection-in-trinidad-and-tobago/> [Accessed 30
November 2020].UNHCR, n.d. States Parties To The 1951 Convention And Its 1967 Protocol. [online]
Available at: <https://www.unhcr.org/protection/basic/3b73b0d63/states-parties-
1951-convention-its-1967-protocol.html> [Accessed 26 November 2020].
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