By Frederick R M Smith QC
The Immigration Policy followed by successive governments has failed to produce the desired results. The domestic economy has not flourished as a result of strict control of the labour force. Undocumented migrants, primarily from northern Haiti, continue to arrive on Bahamian shores in significant numbers.
Meanwhile, “Immigration enforcement” has devolved into little more than a vehicle for systemic corruption and exploitation; a political tool for the incitement of hatred, anti-foreign sentiment and nationalistic fervor.
The consequences of this ill-conceived approach include the loss of hundreds of millions of dollars in annual revenue, the establishment of an entrenched culture of official corruption, the creation of a sub-class of marginalized citizens with all the attendant social challenges, and a myopic, stagnant economy.
The time has come to accept The Bahamas must make radical changes to its regressive Immigration Policy, learn from international trends and best practices, and begin to approach migration as not just a challenge but also an opportunity – a chance to effect positive social, economic, political and cultural change.
The Immigration Act should be amended to outline detailed, explicit and non-arbitrary procedures for processing all applications, appeals and Review Board petitions as well as firm deadlines for the consideration of citizenship, permanent residency, work permit and other status applications.
In particular, everyone who is entitled to be registered as a citizen in accordance with the Bahamas Constitution should receive their certificate of citizenship within three months of application.
Such an approach would accord with the provisions of the United Nations 2030 Agenda on Sustainable Development, which names facilitating “orderly, safe, regular and responsible migration and mobility of people” as one of the 10 goals for reducing global inequality.
From Bahamianization to a thriving Bahamian economy
The policy known as ‘Bahamianization”, in place for more than four decades, is in urgent need of replacement.
Whereas once, a lack of access to basic education and the presence of skilled foreign workers were considered the main obstacles to citizens achieving prosperity, today the key challenges are overregulation, a shortage of cutting-edge skills in emerging industries and a stagnant domestic economy.
While continuing to encourage and facilitate Bahamian access to domestic employment opportunities, the government should aggressively pursue policies that attract cutting-edge minds from around the world to live and work in The Bahamas.
The benefits in terms of skills transfer and economic growth are well documented and various models for achieving this outcome already exist.
In addition, a skills boost to industries such as renewable energy and public sector technology could help address some of the key development issues facing the Bahamas today.
Such an approach would also accord with Article 29 of the 2030 Agenda, which recognizes the “positive contribution of migrants for inclusive growth” and the “multi-dimensional reality” of migration.
Respect for Human Rights
The Bahamas Immigration Act must be revised to explicitly provide for Due Process in all enforcement and punitive procedures in accordance with the provisions of Article 19 of The Bahamas Constitution and the standards established by the Inter-American Commission on Human Rights (IACHR).
In cases where migrants must be detained, the conditions of detention and transportation should be drastically improved in every regard – living standards, hygiene, food quality, access to legal representation, etc. – to reflect a commitment to at least the minimum standards of basic human dignity as outlined by the UN Office of the High Commissioner for Human Rights (OHCHR).
Attorneys and human rights advocates must be granted regular access to detained migrants and a clear, transparent and easily accessible process for identifying asylum seekers and swiftly processing their claims must be created.
Successive governments have employed Immigration ‘crackdowns’ with the clear aim of appealing to xenophobic tendencies in certain sectors of the population. It has also been the practice to withhold the grant of citizenship to those who qualify until politically strategic moments - i.e. the run-up to a general election.
Standardizing the time frame for consideration of status applications would remedy this problem to some extent, however a great deal more needs to be done to rehabilitate the attitudes that both give rise to and are fed by the politicization of immigration.
• The establishment of a permanent information and resource center for refugees and asylum seekers
• Involvement of civil society in the caring for, housing and processing of migrants
• Public education campaigns to alleviate fears about the presence of migrants in society / debunk myths about their social impact
• Further research into impact of migrants on society in terms of healthcare, education, crime and employment.
Undocumented migration must be decriminalized and re-conceptualized as an administrative challenge rather than a law and order issue, in accordance with trends across the developed world.
Offences under the Immigration Act must remain in place, however these should be brought before an Immigration Tribunal which includes at least one member of the judiciary, as well as a qualified expert on asylum issues. Decriminalization of undocumented migration is an approach advocated by the OHCHR.
All cases of alleged undocumented migration should be brought before The Tribunal as soon as is practicable for the setting of a hearing date. The Tribunal should also decide on the status and circumstances of the individual in the meantime, with detention considered a last resort in only the most extreme cases.
More serious offences, for example obtaining citizenship or other form of status by means of fraud, should continue to be adjudicated by the Courts.
Of utmost importance is bringing an end to the long delays in processing of naturalization cases because of the presumption of fraud with regard to each application. It is inhuman and degrading to keep thousands of people waiting in limbo, unable to seek employment or even open a bank account.
Alternatives to detention
In order to avoid huge unnecessary expenses and the dehumanization of individuals, migrants suspected of arriving in the country without permission should be paroled into the general population and monitored by Immigration authorities.
It has been repeatedly shown that detention does not deter undocumented migration, that is a continual drain on government resources and poses a constant threat to a country’s international reputation through allegations of inhuman conditions, abuse and lengthy detention periods.
At its most basic, an alternative system could involve:
• The use of ankle bracelet monitoring
• Release on bond with sureties from friends or family members
More sophisticated alternatives to detention (ATD) are becoming increasingly popular around the world. The trend is based on a growing recognition that human liberty should be the norm and should only be violated when absolutely necessary.
Several countries have developed a number of fair, progressive and effective alternatives to incarceration for people who lack regular status. The Bahamas could learn from these examples and become a leader in the region and an example to other small nations around the world.
Today there is some form of alternative to detention in more than 60 countries around the world and many are extremely successful with compliance rates well above 90% and voluntary participation by migrants across the board.
Renewed focus on border control
The politicization of immigration has led to exaggerated focus on the use of roadblocks and night-time raids on existing migrant communities. Both practices contravene the law to the extent they deprive those targeted of their constitutional right to freedom of movement, due process and protection from arbitrary arrest and detention.
Many of those whose rights are abused in these illegal exercises qualify for or already enjoy some form of status in The Bahamas, yet thousands of these individuals are deported each year, or else held unlawfully in detention for extended periods of time.
The victims of these exercises are in most cases migrants who have been in the country for some time, have put down roots and are active members of their community. They can be said to pose a negligible threat in terms of either national security or health risks, the two most urgent concerns regarding migrant populations in The Bahamas today.
Immigration Enforcement strategies must therefore be updated to focus preponderantly on interdiction at the maritime border, where the reality of security and communicable disease risks is tangible, and far less on members of established communities who have long been domesticated.
Certainly, all deportations of longtime residents and their children should cease until the considerable backlog of status applications has been cleared.
Revocation of the November 2014 Immigration Policy
The immigration policy imposed by Fred Mitchell and adopted by the former Christie Administration was unlawful, regressive and counterproductive, as detailed above. Along with the policy of aggressive raids and roadblocks, the government should immediately repeal two further provisions of this policy:
- The Belonger’s Permit
This instrument was to have replaced the Certificate of Identification, which for decades was relied upon by individuals born in The Bahamas who have a right to apply for Citizenship at age 18. It served both as an official form of identification and a valid travel document and was issued upon application with relatively little red tape. The Belonger’s Permit, on the other hand, is virtually impossible to qualify for, requiring a host of supporting documents which are often prohibitively expensive and very difficult to obtain. Nor does it qualify as a valid travel document. Indeed, it required children of migrants, born in The Bahamas and entitled to citizenship, to obtain passports of the countries of origin of the parents, even though they had no other connection to such country. This change in policy has left many children in the Bahamas without an official form of identification and placed some of danger of becoming stateless persons.
- Mandatory proof of status for children
The provision that children produce proof of their parent’s immigration status before being allowed to resister for school is a clear violation of the Education Act and the Constitutional right to be protected from discrimination. It is also contravenes the spirit of Goal 4 of the UN’s 2030 Agenda on Sustainable Development, which calls for access to lifelong learning opportunities for all.
Benefits of reform
A progressive and inclusive Immigration policy would greatly ease the many social challenges created by the alienation of migrant groups and their descendants living in The Bahamas.
As it stands, marginalized populations are unable to contribute effectively to the social and economic life of The Bahamas; they exist as virtual outlaws in a system that is unwilling or unable to accommodate them.
The efficient and timely regularization of these groups in accordance with the Constitution would allow them to open bank accounts, complete their education, buy property, open businesses, contribute to government revenue through taxes and the National Insurance Fund, and represent The Bahamas internationally in sports and academics.
Meanwhile, creating a welcoming immigration atmosphere for top foreign professionals in emerging industries through the strategic liberalization of the Work Permit regime would do much more than simply create domestic jobs; it would also expand and diversify the basis of the economy while facilitating the transfer of invaluable skills and experience to the next generation of Bahamians. This effect has been thoroughly documented by the IMF, the OECD, and others.
The FNM government, with its overwhelming mandate, is today in an ideal position to bring about a paradigm shift in the country’s approach to Immigration, thereby turning what has been a notorious source of internal division, a vehicle for corruption and a fiscal drain on the nation, into a key contributor to social cohesion and economic prosperity for the future.