The Tribune

By Ava Turnquest

Tribune Chief Reporter

aturnquest@tribunemedia.net

THE Office of the Attorney General will conduct a review of the recent rulings handed down by Supreme Court Justice Gregory Hilton concerning migrant detention by the Department of Immigration to determine the extent of its appeal, Attorney General Carl Bethel said yesterday.

Mr Bethel told The Tribune his office believed the rulings were wrong in law, and a review will get underway today to determine which individual rulings can be appealed.

“In our view, the rulings are wrong in law so far as the court purported to apply the Takitota Court of Appeal case,” he said, “and we will so argue before the Court of Appeal.”

When asked about the costliness of such an endeavour, Mr Bethel said: “We only wish to see the law vindicated. Whatever the result.”

Justice Hilton, in four separate rulings on Tuesday, ruled that Kediesha Bent-John, Gerna Ginord, Verante Mocombe – and their respective children –  as well as Ancelet Curry, were all detained contrary to the provisions of the law and that their continued detention would be “unlawful”.

Justice Hilton said the Department of Immigration did not appear to have utilised the procedures specified in the Immigration Act for reasons “best known to themselves” when dealing with these individuals, and that there is “no other basis” upon which they could be held and detained.

The Supreme Court judge referred to the case of Japanese national Atain Takitota, who was unlawfully imprisoned here for eight years between 1992 and 2000.

In his ruling, Justice Hilton stated that former Court of Appeal President Dame Joan Sawyer “confirmed the legal position in The Bahamas that detention or arrest with a view to deportation without being taken before a court is not permissible.”

Justice Hilton also awarded costs to those individuals to be taxed if not agreed.

The cases are among some 15 separate cases in which the government was asked to prove the lawfulness of the applicants’ arrest and further detention at the Carmichael Road Detention Centre.

Of those cases, several applicants were unconditionally released; however, the Crown objected to costs being awarded due to its position that all the arrests and subsequent detention were lawful.

Yesterday, Senator Fred Mitchell, former immigration minister, maintained the Official Opposition’s position that “this issue should be litigated to the Privy Council and if necessary the act should be immediately amended to ensure that the position of immigration is crystal clear, and the rule on costs should be amended to prevent the abuse of that rule.”

Migrant detentions worldwide have become a growing concern for international human rights groups, and was among key interventions made at the 37th session of the United Nations’ Human Rights Council this week.

In a position document released on Monday, the UN Working Group on Arbitrary Detention reaffirmed its stance on the prohibition of arbitrary detention and the universal human right to seek asylum, adding that the irregular entry and stay in a country by migrants should not be criminalised.

The Working Group upheld that placing migrants and asylum seekers in detention should be seen as a last resort to be used only in strictly limited circumstances. It underscored this position was based on international law and its own jurisprudence.

“The right to personal liberty is fundamental and extends to all persons at all times and circumstances, including migrants and asylum seekers, irrespective of their citizenship, nationality or migratory status,” it read, adding that “everyone has the right to leave any country, including his own, and return to his own country.”

In a release on the Revised Deliberation No 5, it further called for the maximum period of detention must be set out in law, adding that indefinite hold cannot be justified and is arbitrary. It was formally adopted by the Working Group in November 2017, but recently issued this year to mark the 70th anniversary of the Universal Declaration of Human Rights.

“The deprivation of liberty of an asylum-seeking, refugee, stateless or migrant child, including unaccompanied or separated children, is prohibited by international law,” the deliberation adds.

“The Working Group, in its revised deliberation, also says migrants have the right to bring proceedings before a court to challenge the legality of their detention, and to obtain appropriate remedies if their challenge is successful.

“People detained in the course of migration proceedings enjoy as a minimum the same rights as those detained in the criminal justice or other contexts.”