Requiring individuals born in The Bahamas to foreign parents, who are essentially “Bahamians in waiting”, to live on the outside of their own society, is a recipe for social discontent, which The Bahamas can hardly afford, Chief Justice Sir Ian Winder has warned.
“There is absolutely no lawful justification why these applications ought to take years and in some cases decades to be processed,” Sir Ian said.
“Such interactions leave a bitter taste and often hinder these Bahamians from fully embracing their Bahamian identity when their applications are eventually approved.”
The chief justice made the statement while delivering the “Eugene Dupuch Distinguished Lecture” on the topic, “Status, rights and obligations: Legal issues in citizenship, immigration and asylum laws in the Commonwealth of The Bahamas” last Thursday evening.
Sir Ian recognized that “perhaps the most challenging immigration and citizenship issue” relates to those individuals affected by Article 7 of the Bahamian constitution, which speaks to a person born in The Bahamas after July 9, 1973 neither of whose parents is a citizen of The Bahamas.
That article provides that that person is “entitled, upon making application on his attaining the age of 18 years or within 12 months thereafter in such manner as may be prescribed, to be registered as a citizen of The Bahamas”.
“It is clear that the constitution offers, in the case of persons born in The Bahamas to non-Bahamian parents, a deferred right to citizenship; a right deferred to the 18th birthday,” Sir Ian said.
“Some may also say that it is a deferred, conditional right as it seems that the application must be made within a window of 12 months.
“I have often heard this right diminished as simply a right to apply. It is certainly not a simple right to apply. Everyone and anyone has a right to apply.
“The right given to persons qualified under Article 7 is an entitlement to be registered upon application and subject only to national security and public policy considerations.”
The chief justice said the challenge for this class of people is ascertaining their status in the period before age 18 and after age 19, in the event no citizenship has been applied for or granted.
“There is some uncertainty in the law as it relates to this class of persons, who, if not recognized by The Bahamas, often find themselves, in certain albeit limited circumstances, stateless,” he said.
“The situation is often compounded when they, by our application process, are forced to assume the nationality of their parents, if they can, in order to make the application for citizenship and access this deferred right.”
Sir Ian said it is widely known that applicants often have to wait several years for the government to decide on their nationality applications and, in the interim, do not have documentation to secure employment, housing, and public services.
He noted, “The lack of a passport also prohibits students from pursuing higher education outside the country. Until recently, these students had to pay the same rate (of double the tuition) at the University of The Bahamas as foreigners.
“They continue to be denied any opportunity for government scholarships, notwithstanding their entitlement to be registered as a citizen, limited only by national security and public policy concerns.”
Sir Ian said University of The Bahamas Executive Vice President Dr. Ian Strachan summed up the situation accurately when he stated: “Disenfranchising a person for 18 years or more, while they await entry into the exclusive club of Bahamian citizenship, creates frustration, shame, anger, alienation and bitterness in the hearts of thousands of young people who know, have, and want no other home but this one. It’s simply inhumane, short-sighted …”
Sir Ian also said, “There is a quiet, unspoken disdain by persons entitled to be registered as citizens under Article 10.”
Under that article, any woman who, after July 9, 1973, marries a person who is or becomes a citizen of The Bahamas shall be entitled, provided she is still so married, upon making application in such manner as may be prescribed and upon taking the oath of allegiance or such declaration as may be prescribed, to be registered as a citizen of The Bahamas.
Sir Ian said the disdain shown toward such individuals is particularly acute among female lawyers who require citizenship in order to practice before the bar.
“The government has an interesting policy reflected in several actual cases of which I am aware,” he said.
“After requiring the married woman to undergo a five-year period of utilizing the spousal permit, they would offer to them permanent residency, notwithstanding their application was for citizenship.
“As a practitioner, I had two colleagues who toyed with the idea of testing the policy but, ultimately, the fear of jeopardizing their chances of gaining their citizenship caused them to get cold feet.
“Whilst no one has been courageous enough to challenge it, one has to ask what interest of national security or acceptable public policy would warrant the grant of permanent residency to someone but not citizenship in circumstances where the constitution confers an entitlement to be registered as a citizen?”
The chief justice also noted that it is a fact that notwithstanding its expressions of fundamental rights and freedoms expressed in Chapter III of the constitution, some provisions of the constitution, in particular as it relates to Chapter II, reflect differential treatment of certain classes of people, and it is particularly skewed against women.
He noted that two referendums failed to achieve the elimination of these anomalies from the constitution.
The government has indicated that it has drafted legislation to rebalance the gender anomalies, Sir Ian said, adding, “We await the release of the legislation for public consultation.”
He observed, “There has been some commentary amongst some legal scholars expressing concerns about the ability of Parliament to pass law to confer citizenship outside of the constitution, in the wake of the defeated referendum, some six years ago.”
But he said this commentary is against the clear language in Article 13 of the constitution.
Article 13 provides that Parliament may make laws “for the acquisition of citizenship of The Bahamas by persons who do not become citizens of The Bahamas by virtue of the provisions of this chapter (of the constitution)”.
“Parliament, having been elected by the people of The Bahamas and constitutionally mandated to ensure the peace order and good governance of The Bahamas, is empowered to enact legislation to balance any gender anomalies,” Sir Ian said.
“Every citizen of this Commonwealth, regardless of gender, should enjoy the same rights. There is no reason why my mother or my aunt or my sister or my daughter should not enjoy the same rights as I, to pass on my citizenship.”
He also highlighted the pending challenge to the interpretation of Article 6 of the constitution.
Sir Ian, who heard a challenge in this regard (prior to becoming chief justice), held that a person born in The Bahamas is entitled to citizenship at birth pursuant to Article 6 of the constitution if either of their biological parents hold citizenship, irrespective of their parents’ marital status.
The case was recently heard before the Privy Council, which has not yet ruled.
Immigration and asylum
On the issue of illegal immigration, Sir Ian highlighted cases that demonstrate that detainees have the same rights to be protected against arbitrary arrest and detention as every other person who is alleged to have breached the law in The Bahamas.
“The unfortunate practice had been, notwithstanding these lines of cases, to detain persons alleged to be in the country unlawfully, for indefinite periods of time, until they can be repatriated to their homeland,” he observed.
Sir Ian said while “lapses” by the immigration authorities have a tremendous impact on the detainees, they also have considerable impact on the country.
“As is evident, the financial costs of compensating these persons unlawfully detained amount to many, many millions of tax payers’ dollars, dollars which could otherwise have improved the delivery of education, healthcare and social services,” he said.
Sir Ian added, “It would be unfair if I do not put forward one of the significant challenges experienced by immigration authorities in the case of some detainees. Immigration authorities often face repatriation delays where some countries do not readily embrace the return of their nationals.”
After highlighting the principles in legal matters in which this issue was raised, he said, “The takeaway for the immigration authorities is that whilst they have a deportation order for an illegal immigrant, they need to take immediate and appropriate steps to secure their deportation. Where barriers are encountered and it becomes apparent that those barriers may not be surmounted, the continued detention of the immigrant, although initially lawful, becomes unlawful.”
The chief justice also addressed the “topical” issue of shantytowns in The Bahamas, noting that it is not purely an immigration issue.
“The belief is that the majority of the residents of these communities are migrants, both legal and illegal,” he said. “The real issue is that they are unregulated, representing cities within the city. Being unregulated, the housing is more acceptable to those migrants who wish to live on the fringes of communities and can only afford sub-standard housing conditions.”
After recently losing a bid to have the government’s shantytown eradication policy declared unlawful, a group of shantytown residents filed an appeal to the Court of Appeal on March 10.
On the issue of asylum, the chief justice noted The Bahamas never passed legislation to give effect to its international obligations in this regard.
“Some 30 years later, whilst we have put in place ad hoc mechanisms to accept some asylum seeker to access asylum in The Bahamas, we have not honored our international obligations to enact legislation to formally provide for this to occur. The government has shared proposed legislation which seeks to cure this deficit, but no such legislation has been tabled,” Sir Ian said.
“We look forward to the completion of this process in satisfaction of our international obligations.”
Sir Ian noted that while many areas related to citizenship and immigration could benefit from an appropriate legislative intervention, many other areas, such as applications for status and prolonged detentions, simply require proper due diligence, timely interventions and appropriate vigilance on the part of the immigration authorities.
