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11 November 2015

Check Against Delivery

On Saturday 7th November, the Nassau Guardian quoted words from the Anglican Bishop of Nassau and The Bahamas and reported the following:

“He [the Anglican Bishop] expressed concern about the number of so called white collar jobs “that are being done by non-Bahamians, who he said are similarly undocumented and unregularised.

“Some very large entities are guilty of this and seem to commit infraction after infraction without penalty, “said Boyd without naming any person or entity

Some appear untouchable and some are.

“I cry shame and call on the government and the department of Immigration to do its work without fear or favour across the board and I beg the higher powers not to interfere.”

Then the Nassau Guardian wrote an editorial on 9th November under the headline BE JUST AND FAIR, MINISTER MITCHELL

And wrote inter alia the following:

“We therefore support Boyd’s message and call on Mitchell to be fair and just. Our laws must be respected in their totality—otherwise the enforcement becomes nothing more than a tool to perpetuate injustice.”

I wish to express at the outset a distinction between my approach to the Bishop’s comments and those of the Nassau Guardian. I thought that the Bishop’s comments were a thoughtful approach to a delicate subject which requires public discussion and erudition. Unfortunately, the Bishop’s comments were then used by the Nassau Guardian to create a bit of mischief which I am forced to clarify. This is because the way it is written, it casts an unfortunate personal imputation on me as a Minister of the government. I must respond.

Once I saw the headline and read the editorial, I reached out to the Nassau Guardian and asked the question: where is the evidence that the laws are being enforced unfairly or unjustly by this minister. The operative words about which I am concerned are: [by] Minister Mitchell.

I submit there is no evidence that Fred Mitchell perpetrated unfairness or injustice in carrying out my duties as Minister of Immigration or in any other public position and you can find none. I am not talking about the wild and crazy talk of activists with an axe to grind but unfairness and injustice in an objective sense.

This is what I understand the law to be on citizenship of The Bahamas.

The case Ryan and the Attorney General was a seminal case in administrative law across the Commonwealth. It was a Bahamian case and one which I know very well and used many times in my practice as a lawyer. I did not leave those lessons behind when I began the work of the government. It solemnized the duty to act fairly in the law of citizenship in The Bahamas. The Bahamas Nationality Act and the constitution mandates who can and cannot become a citizen of The Bahamas and how you apply. Those applications are to be processed scrupulously and in as timely a fashion as our present procedures and systems permit.

In other words as I understand it, the role of the Minister in these matters is to receive the application, examine whether the individual meets the criteria set down in the constitution and the Bahamas Nationality Act and if the person meets the criteria, that person should be granted citizenship of The Bahamas. The exceptions are if there is something of a criminal or moral nature which would vitiate the right which arises in law. That has been my approach and I have not deviated from it. That is the ratio as I understand it of Ryan and the Attorney General, the governing case on the matter.

The practice has evolved by convention in this country that Minister in the statute law means the Cabinet and the final adjudication on these matters therefore sits before the Cabinet. From a time point of view, the question is how often can you get before a Cabinet and how many applications can be considered at a time? I assure you not many times and not often.

The procedures have not changed in 42 years. It is unlikely to change so long as the Bahamian people believe that their representatives ought to have some input into who becomes a citizen of The Bahamas or a permanent resident. Many have suggested administrative reforms which would remove the Cabinet’s input but these have not been accepted, nor do they seem at this point to be politically saleable.

The wider difficulty is that you are unable to have a dispassionate public conversation about this without it disintegrating into a nasty row.

The Lord Bishop referenced the Citizenship Commission and I would welcome its appointment. Perhaps that is the better way to deal with this. In formulating new public policy, the policy makers run the risk of moving a people faster and farther than they are prepared to go with drastic consequences as the end result.

As I move around the country the subject of immigration engenders strong views logical and illogical, often overwrought with emotion. This is not something that can be led by the Minister responsible for Immigration and Citizenship. The Minister is the keeper of the system. Its guardian, not in this instance its reformer. The matter of the discussion on reform in this instance is a matter for civil society so I invite the Lord Bishop to lead the discussion on immigration. I invite him to bring his church membership and the wider community of faith from across the dominations along with him so that meaningful consensus could be had in charting the way forward for our country.

At the same time, I am sympathetic to the problem of delay. This has not remained unaddressed either. I have spoken to the issue of resources for the Department of Immigration and the lack thereof. I have spoken also to the need for us to be realistic about what we can afford given that resources are scarce.

In response to the complaints, I moved the government to commit itself to an 18 million dollar package of new equipment which will be rolled out over the next five years to improve the application processes for all immigration issues and should allow people to track where their applications are and just where matters are in the process.

I have urged my colleagues to deal with these matters as a matter of routine. If we simply do our duty in a routine, dispassionate fashion, week by week or when time permits then the questions of procedural unfairness might fall away.

All of this has been accepted by the Government.

There are other practical issues to consider. One of them is being able to identify an individual who is eligible for citizenship of The Bahamas.

Last year for example all applications had to be returned to the Registrar General’s office who applied based on birth in The Bahamas because the validity of the Bahamian birth certificates was questioned. This continues to be an issue and so all birth certificates are checked with the Registrar General’s office to ensure that they are genuine.

Secondly, I wish to assure the Lord Bishop and the Nassau Guardian that under this minister there is no double standard in the application of the law: the butcher, the banker, candle stick maker are equally subject to the law. The public evidence supports that.

What I recall is that the press response to the application of the law is a double standard where when the person who breaks the law comes from the North of us one rule applies in terms of publicity and sympathy; where the man or woman comes from the south of us another rule applies. All you have to do is remember when the Department of Immigration carried out routine operations which resulted in interdictions of a banker and an employee at Atlantis the difference in the response of elites to those incidents when compared to the routine checks which interdict these from the labouring class. Right now we are awaiting a ruling in a case in Freeport which we hope will clarify the powers of immigration officers to exclude someone from The Bahamas.

I beg the critics please: do not get me mixed up in those prejudices and the prejudicial cleavages in society as a whole. I have none of those. Anyone who breaks the law is subject to the rules of immigration.

If by “higher power” who might interfere, it refers to this minister, I beg to differ. I have never done so and I will not do so. If you have the evidence let it rip.

If the Bahamian people wish to move to a system which is devoid of the input of political decision makers like some developed countries then that is a genuine discussion we can have. But this minister in this present system does his work without fear or favour and applies the law in that manner and I do not want it hanging out there that I am the perpetrator of procedural or other unfairness. Those who are entitled are advanced. When Cabinet time permits, they are adjudicated upon and that is that.

If The Guardian has evidence that I personally worked some unfairness on any applicant they are welcome to produce it.

I thank the Lord Bishop for his comments and I will reach out to him personally. I am after all one of his members. I have the utmost and deepest respect for him.

That is all I have to say on the matter at this time.