EDITOR, The Tribune
Policy is not law. It cannot override the law. In defending the new education policy, the Minister of Foreign Affairs and Immigration has referred to the Immigration Act.
However, he failed to identify any section of the Immigration or Education Act which makes the “New Visa Rules” under the “New Immigration Education Policy” lawful.
The New Rules require children born in The Bahamas of foreign parents to get a student visa. In addition, the new November Documentation policy is not sanctioned by any law either.
Neither policy is authorised by anything stated in the Immigration Act or the Constitution.
The Constitution is clear about who is entitled to be registered as a citizen under Article 7. This is not a “tough” policy; it is simply an “Illegal Policy”.
The Human Rights Association will launch a class action to protect the rights of innocent children born in The Bahamas who are of foreign parents and who are entitled under Article 7 to be registered as a citizen of the Bahamas upon attaining 18 years of age, or within twelve months thereafter.
Such children are pregnant with the right to citizenship and there is a constitutional obligation on the part of the Government to deliver their citizenship after the 18-year gestation period.
At 18, they are entitled to receive a Certificate of Registration as a Citizen. Before then, they are “Citizens in Waiting”. They are not “stateless” as Fred Mitchell suggests.
Requiring them to get a Haitian passport and/or a visa is creating confusion and it is prejudicing their entitlement.
Minister Mitchell says: “That is the law. The Immigration Act says without distinction that everyone who is in the Bahamas who is not Bahamian should have something which shows they have a right to reside or a right to work in the Bahamas. This applies to children and adults without distinction.”
The Association challenges Minister Mitchell to point to the section of the Immigration Act that says that. There is no such section. It is an offence to be gainfully employed, to land illegally, or to overstay a visit.
The Immigration Act does not address the issue of children born in The Bahamas because children cannot be born, tainted with a criminal offence, especially since the Constitution gives them a right to be citizens on attaining 18, and every person is assumed innocent until proven guilty of an offence.
The Minister is simply wrong and the policy is illegal.
The new immigration student visa policy conflicts with the Education Act. The Minister of Education is statutorily required to educate all children in The Bahamas; there is no reference to nationality, documentation or status.
Under the Education Act, there can be no discrimination, and this is an echo of the Constitutional prohibition against discrimination.
The Act imposes a statutory obligation on the Minister to educate all children; not only children born on Bahamian soil of Bahamian parents.
Ministers of Government cannot simply create “new rules”, there is no such creature known in our law. Parliament passes laws and authorises Ministers by statutory instruments to create subsidiary legislation, rules and regulations which are within specifically authorised sections of the main act.
Parliament does not authorise the creation of “Ministerial Rules” under “Policies”.
“New Rules” are not “New Laws” passed by Parliament.
Under the Immigration Act, Parliament has not given Minister Mitchell power to introduce or pass “New Rules” regarding education of children in the Bahamas.
Minister Mitchell is acting ultra vires the Immigration Act, the Education Act and the Constitution.
In addition, we are attempting to taint children with the alleged original sin of their parents, who are simply alleged to be here illegally.
Under the Constitution, Criminal Procedure Code and the Immigration Act anyone who is suspected of having committed an offence is exposed to being arrested, charged, tried, convicted and sentenced, but not to be arbitrarily dealt with on the Ministerial Policy Edict; otherwise we may as well get rid of the expense of Parliament and MPs and just have Ministers declare new policies any day they feel like it!
The Immigration Act provides for penalties and sentences for offences.
The Minister cannot create new penalties, punishments or offences; only Parliament can do that.
It is not an offence to simply be born of foreign parents in The Bahamas and there is no requirement in any law, that having been born in The Bahamas, any Minister can suddenly create a cost of $125 or penalise you by threat of deportation to have a visa to attend school.
Only Parliament can pass laws, not Ministers and due process requires that a person must be convicted and sentenced before being punished or subjected to a monetary fine.
Fred Mitchell, Minister of Immigration and Foreign Affairs, cannot create laws, rules or policies under the Education Act.
The Minister of Education is responsible for the education of children, not the Minister of Immigration and Foreign Affairs.
The absurdity of the “New Visa Rules” is highlighted by the fact that “student visas” are issued by the Ministry of Foreign Affairs to a student who is born outside of The Bahamas and who wishes to come into The Bahamas to study.
There is no law which provides for any kind of visa to be issued to a child falling under the constitutional category of Article 7.
In addition, international law under the United Nations and under the Organization of the American States prohibits discrimination against children within the Bahamas who are born abroad.
This is even worse! The New Rules have targeted innocent children born on Bahamian soil.
This is the apex of absurdity and perversion of human rights.
Our Association calls on the Government to immediately declare that it will not enforce this policy.
Unless the Government stops this madness, our Association will denounce the Government of The Bahamas throughout the world for its breaches of human rights against innocent children born in The Bahamas.
FREDERICK SMITH, QC
Grand Bahama Human Rights Association
February 3, 2015.
Comments
birdiestrachan 9 years, 8 months ago
Mr. Smith you and your association and the Campbell woman have been trying to denounce the Government and the people of the Bahamas all along. When you compare the Bahamas to Nazi Germany under Hitler. How low can you go. You and your slippery friend Campbell are doing all you all can to hurt the people of the Bahamas.
Trying to denounce the Bahamas which you can not do Will not work for you.
Economist 9 years, 8 months ago
Mr. Smith is not denouncing The Bahamas. No where in the letter does he denounce. What he does do is point out to us is what our laws say.
Birdiestrachan are you Bahamian? Post a copy of your passport on this site or shut up. That is really what the Minister is saying. Your children are not Bahamian. He does not believe that they are. They are illegals unless they show their papers.
Man Birdie, you better carry your passport on you all the time. You never know when Immigration is going to do one of its raids and, as the minister says all persons who are not Bahamians should have papers. How does immigration tell the difference between you and a person born in The Bahamas, say 30 years ago, who will speak like a Bahamian citizen, but they are not?
Guess they should jam you in the bus too. "Guilty till you prove yourself innocent" the new Policy of The Bahamas.
TheMadHatter 9 years, 8 months ago
So basically, then, it is ILLEGAL for Bahamians to have a country called the Bahamas.
Government should provide every true Bahamian family with a gun and enough bullets to commit suicide.
As Mr Smith says - there is no way we can win. The law is against us. We must simply hand over this country to the invaders.
Well, then. Let's get to it. Perhaps the Govt will fax a purchase order to Smith & Wesson in the near future.
Like the state motto of New Hampshire says "Live free or die." If we have to live under the laws and rules of foreign invaders, and if the law supports them more than it does us, then we are better off dead.
TheMadHatter
Economist 9 years, 8 months ago
No The MadHatter, the fact is that we have been very slack in preventing illegals entering our country and equally slack in letting them stay. By doing nothing we have allowed a number children to be born who, under our constitution, have legal rights.
In addition those illegal immigrants that we have allowed to work for 15 or 20 years now have a "Legitimate Expectation" to be permitted to continue to work; something they can probably enforce.
In addition we have signed several international agreements to which we are bound. Those agreements assume that we will protect our borders (which we did not) and will process immigrants in a timely manner (which we did not either). They assume that if you don't, you know the consequences.
Mr. Smith has set out the consequences.
DEDDIE 9 years, 8 months ago
Enforcing the new policy will be interesting.The only criteria the government plan to use to distinguish a Bahamian child from a Haitian child is the surname. The average Bahamian child from Bain town don't have a passport and his parent don't have a passport. A birth certificate can not be use to prove citizenship.
ispeakthetruth 9 years, 8 months ago
Where does it say that surnames will be the only criteria? I must have missed that?
birdiestrachan 9 years, 8 months ago
I do carry my passport every where I go. Because I am asked to produce it all the time. At the airport, at the bank. that have done business with for many years, at National Insurance ,One can not cash a cheque without it. So why should any one else be different even the Nassau Institute agrees that persons should have passport.
birdiestrachan 9 years, 8 months ago
It makes sense for the children to obtain a Passport from Haiti since they can not obtain a Bahamian passport until after the age of 18. Many Haitians have changed their names. It use to be very easy. It is not so easy now. One has to hire a lawyer and put notices in the papers. I am sure some Haitians love the Bahamas and its people, But their are a whole lot who hate Bahamians and the Bahamas with a passion. And many do have that VOO-DOO connection You can believe that if you wish or disbelieve it if you please.
Economist 9 years, 8 months ago
The fact of the matter is that you do not live in a police state and ought not need to carry it. When I travel to other countries I do not walk around with my passport on me and I certainly don't see why I should have to do so in my own country.
I cash checks with my drivers license.
Emac 9 years, 8 months ago
DEDDIE says,"The average Bahamian child from Bain town don't have a passport and his parent don't have a passport." Sounds condescending to me. But anyway. How can we tell the different from a Bahamian child to that of a Haitian? Dem high cheek bones. Dats how. How u think immigration officers can target Haitians from a mile off?
ispeakthetruth 9 years, 8 months ago
Article 7, of the constitution also states: Any application for registration under this article shall be subject to such exceptions or qualifications as may be prescribed in the interests of national security or public policy.
Therefore, I would say that the minister does have the right to enforce immigration policies in the interest of the Bahamian public. The fact that there are so many undocumented unidentified illegals is a matter of national security. With close to twenty percent of the population being of Haitian descent, Bahamians are a few generations away from extinction. We might even be able to call it ethnic cleansing. But we won't follow your lead and make light of historic tragedies.
And by the way, show some humanity and respect to the survivors and descendants of the holocaust victims. Or does your "humanity" begin and end with the Haitian community?
Economist 9 years, 8 months ago
As I understand it, Article 7 of the Constitution only deals with citizenship. The Bahamas has reserved the right to refuse citizenship on the grounds on national security and public policy. Where someone is a criminal or is seriously considered to be part of a terrorist network they can be refused citizenship on the grounds of national security.
Refusal on the ground of public policy is a much more difficult thing to achieve. It must be done in accordance with know international norms. It is very unlikely that one could justify refusing citizen ship to more than a handful on the grounds of public policy. I intend to research this point and will reply as I gain more knowledge. If there is anyone who knows what the legal position is please say so and guide us as to where to read about it.
The school requirement has to be considered with the right to citizenship contained in the Constitution and Article 2 of the Convention on the Rights of the Child.
Cas0072 9 years, 8 months ago
Since the letter is entitled "Citizens in Waiting" and it asserts an automatic transition to legal citizen status, ispeakthetruth was correct in pointing out this citizenship fact. Article 7 paragraph 1 on the rights of the child also states: "The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents." All children whether of Haitian or Bahamian descent will be required to have the necessary documents in order to register for school. The fact that illegal Haitians are now in a quandary are their own doing. After years of benefiting from loopholes and inaction on the part of the Bahamian government, they are finally being tasked with doing the right thing.
Economist 9 years, 8 months ago
Article 2
States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.
The Bahamas made the qualification of the wording in Article 7 of the Constitution, the effect of which is referred to above.
ispeakthetruth 9 years, 8 months ago
The letter addressed the rights of Bahamas born children of illegal Haitians, to register as citizens at eighteen. I was responding to that and I maintain that the immigration ministry does have the right implement immigration policy. They have right to know who is in the country and to employ necessary methods to identify and compile a solid number, that is in no way unconstitutional. That is necessary.
The children of illegal immigrants in the Bahamas, sorry to say, essentially inherited the criminal act of their parents because they too are living illegally in the Bahamas. I don't agree that they should have an expectation of citizenship, but they will have that opportunity at eighteen. I have not heard of that law being replaced with policy. Have you?
The new policies are also not discriminatory. Haitians as the largest group of illegals will, of course, be the most affected. Further, nowhere have I read that kids will not be educated for failure to pay visa fees. Your assumption of these issues is premature. If parents decide to again evade officials by not enrolling their kids in school, they will serve yet another injustice to them.
Economist 9 years, 8 months ago
I agree with you that everyone born in this country should be registered. It is one of the first things that should be done. I know that I registered my children within days of their birth.
If the hospital and Social Services do there job properly, all persons, legal or illegal, who have babies at the hospital free would have to be registered. When someone goes to the hospital and says that they can't pay for the services the hospital is supposed to ask the Social Services officer(who is supposed to be there all the time) to confirm that they can't pay, and Social Services should pay. Social Services is supposed to ask a series of questions (where do you live, where do you work, NIB number, who is your husband, father of child etc.).
Social Services is supposed to follow up, they may include immigration in their follow up. If they did their job we would have fewer children born in the hospitals because many illegal fathers would have been deported legally. But both have not been doing their jobs so many illegal children may not have papers, making for a bigger mess.
We are paying the price for our slackness. The laws provide for slackness in the form of "legitimate expectation". And then you have the consequences of the international treaties and conventions that we signed on to.
One big mess created by the defence force not protecting the borders, immigration not doing its job and Social Services not doing their job.
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