Ruling may impact some deportations

Deputy Director of Legal Affairs Franklyn Williams said yesterday the government is prepared to halt deportations and detention of people who claim to be Bahamian citizens under the court’s recent interpretation of Article 6 of the constitution, pending the outcome of an appeal to the Privy Council.

The government is seeking a stay of the Court of Appeal’s decision, which affirmed a 2020 landmark ruling by Supreme Court Justice Ian Winder that every person born in The Bahamas shall become a citizen of The Bahamas at birth if either parent, irrespective of their marital status, is a citizen of The Bahamas.

The ruling allows children born out of wedlock to Bahamian men and foreign women in The Bahamas to be entitled to citizenship from birth.

The court has granted the 

government leave to appeal the ruling to the Privy Council.

Court of Appeal President Sir Michael Barnett noted that Wayne Munroe, QC, filed an affidavit stating that the immigration department is still deporting people.

In light of the court’s ruling on Article 6, Sir Michael asked Williams, “Can the immigration department properly deport those persons, and should they be doing that?”

Williams replied, “I am advised that the appellant, the government of The Bahamas, is prepared to give an undertaking that pending this determination of this appeal, not to deport any person claiming under Article 6 and the declaration of the court, the interpretation of Article 6.”

Asked what happens when “immigration conduct their raids”, Williams replied, “We would so advise the director of immigration.”

Asked to define the people this would affect, Williams said, “Any person claiming, and when I say claiming, going to the Passport Office or presenting themselves to be registered to vote.”

Sir Michael asked if the interpretation was too limited.

“… It has to be that nobody who can show that he is born in The Bahamas of a Bahamian father or mother can be deported pending the appeal to the Privy Council.”

Williams said, “That is the undertaking that we make. No person.”

He added, “Our submission is that if the court is minded, in the interest of justice and in the circumstances, to make an order; our submission is that a bifurcated order be made on the one hand staying the effect or the operation of the ruling, and on the other hand an order that there be no deportation of anyone, any detention or deportation of anyone claiming under the interpretation of Article 6 of Justice Winder and this court.”

Justice S. Maureen Crane-Scott asked Williams about the request for an order to halt deportations of the affected people.

“With that type of wording, would we not be overstepping or overreaching and interfering with the functioning of the immigration department?” she asked.

“You are asking this court, it seems to me, to injunct the minister or director of immigration in the way that you have worded it.”

Deported

In his submissions yesterday, Munroe said that two of his clients, Mayson Juno Pierre and Nikey Pierre, “are still in Haiti having been deported in defiance of a court order”.

Sir Michael asked, “When did that happen?”

Munroe said shortly after the action started and before the ruling was made. 

He said, “The order was that Mason Pierre and Nikey Pierre not be deported and in the hearing below it was acknowledged that the officer in charge of deportation had notice of the order but decided that it had to go uptown to their office. …”

As a result, he said, the Pierres were deported.

But Williams said this matter is in dispute. 

The five respondents in the current matter – all children of unmarried Bahamian fathers – “each claimed the right to Bahamian citizenship under Article 6 on the basis of their having been born in The Bahamas after 9 July 1973 to a father who was a citizen of The Bahamas at the date of their birth”.

The government “resisted” the applications on the basis that “since the respondents’ fathers were unwed at the date of their birth, they were excluded from automatic Bahamian citizenship by virtue of Article 14(1) which, it contended, applies to the interpretation of Article 6 by indirect reference”.

Article 6 of the constitution states, “Every person born in The Bahamas after July 9, 1973, shall become a citizen at the date of his birth, if at that date, either of his parents is a citizen of The Bahamas.”

Article 14(1) states, “Any reference in the chapter to the father of a person shall, in relation to any person born out of wedlock other than a person legitimated before July 10, 1973, be construed as a reference to the mother of that person.” 

Is a stay necessary?

Williams said the government is seeking a stay to prevent “the granting or acquisitions of citizenship by persons who would otherwise not be entitled to it if our appeal is successful”.

But Munroe argued that the government doesn’t have to grant citizenship to those claiming it under the court’s interpretation of Article 6 because it can argue “we’re waiting to hear from the Privy Council”. 

Justice Crane-Scott noted that the government wants a stay, so that everything goes back to what it was before the declaration was made.

She said the government doesn’t have to honor the declaration and can continue with its policy of not granting passports or voters cards until the Privy Council gives a definitive ruling.

She added that Munroe’s clients can benefit from Justice Winder’s ruling but it does not seem that he continued with the matter while it was before the Court of Appeal.

“So, is there any urgency in staying what was happening before Justice Winder?” she asked.

“It doesn’t appear as if anything was moving there while this court was listening to arguments one way or the other.”

Sir Michael said the court will consider the arguments and make a decision on the stay “in short order”.

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