UPDATE: FOREIGN Affairs Minister Darren Henfield has confirmed the government is preparing a travel letter for Bahamas-born deportee Jean Rony Jean-Charles today - See story HERE.
By NICO SCAVELLA
Tribune Staff Reporter
A SUPREME Court judge has ordered the government to “immediately” issue a travel document for Bahamas-born deportee Jean Rony Jean-Charles to allow him to return from Haiti to the Bahamas at the government’s expense and to grant him legal status no later than 60 days after his return.
Justice Gregory Hilton, in a written ruling, ordered the government to issue a travel document to Mr Jean-Charles to “allow and permit” him to travel from Haiti into the Bahamas, and that it pay the “reasonable cost” of Mr Jean-Charles’ journey “forthwith upon his return.”
Justice Hilton further ordered that the minister and director of immigration should, no later than 60 days after Mr Jean-Charles’ return and upon his application, issue “such status” that would “permit him to remain in the Bahamas and to legally seek gainful employment.”
And, ordering that Mr Jean-Charles’ rights under Article 19(1), (2) and (3) and Article 25 (1) of the Constitution have been breached, Justice Hilton ordered the government to pay Mr Jean-Charles for the breach “in such amount as to be determined” after hearing submissions by counsel.
Justice Hilton, in his 39-page ruling, found that Mr Jean-Charles was “unlawfully expelled” from the Bahamas, after having been unlawfully detained from September 17, 2017 to November 24, 2017, in breach of his right guaranteed under Article 25 (1) of the Constitution.
Justice Hilton further found Mr Jean-Charles has been deprived of his personal liberty, unlawfully arrested and detained/falsely imprisoned in breach of his rights guaranteed him under the Constitution.
The Tribune understands the Crown intends to appeal Justice Hilton’s decision.
According to the ruling, which referred to an affidavit sworn by Mr Jean-Charles’ sister Clotilde Jean Charles, Mr Jean-Charles was born at the Princess Margaret Hospital in New Providence on December 5, 1982. He was arrested by immigration officers last September and detained at the Carmichael Road Detention Centre from that date up to the swearing of Ms Jean Charles’ affidavit.
Mr Jean-Charles was never charged with any offence under the Immigration Act or any other law, according to the ruling, and neither was he ever taken before any court. He was never served with a deportation or a detention order, and had never been outside of the Bahamas.
He is represented by Fred Smith, QC, who filed a writ of habeas corpus on his behalf last year.
The government’s response to Mr Smith’s writ, executed by the then-Acting Director of Immigration Keturah Ferguson, accepted the facts outlined in Ms Jean Charles’ affidavit save for the name and date of birth of the person in question.
According to the response, on September 18, 2017 an adult Haitian national who gave his name as “Jean Charles” and stated his date of birth as December 1, 1985, was arrested and detained by immigration officers during a routine status check on Fire Trail Road.
Due to “Jean Charles” being unable to provide officials with any documents or proof concerning his lawful presence in the Bahamas, he was taken to the detention centre for further processing relative to suspected contravention of the Immigration Act.
After an unsuccessful check at the Birth Registry for the name “Jean Charles” and the associated date of birth, that individual was returned to his home country on a Bahamasair charter flight on November 24, 2017. He later confirmed his identity as “Jean Charles,” date of birth December 1, 1985 during a roll call of passengers prior to boarding.
Once the flight landed in Haiti, the man was handed over to Haitian authorities, and thus any custody or control of “Jean Charles” by the Bahamas government came to an end on November 24, 2017, the Crown maintained.
Days later on November 29, Mr Smith filed an originating motion, an ex parte summons and affidavit seeking leave of the court for a writ of habeas corpus to be issued against the government for it to produce Mr Jean-Charles, specify whether the cause of his detention was lawful, and if not to order his release.
In addressing Mr Jean-Charles’ arrest and detention, Justice Hilton noted that while Article 19 of the Constitution recognises the power of the state to detain and expel non-nationals, it must be done “within the four corners of the law”. He further stated any detention not authorised by law would be a “breach of the individual’s constitutional rights; and entitles that person to compensation under Articles 19 (4).”
He also said that based on section 18 of the Criminal Procedure Code, if an individual is apprehended by immigration officers for allegedly committing an offence, that individual cannot be detained for more than 48 hours before being charged and taken before a magistrate.
“Any time longer is an unauthorised detention and is unlawful,” Justice Hilton added.
Regarding Mr Jean-Charles’ consequent deportation and/or expulsion from the country, Justice Hilton stated that he could not be arrested and detained under section 25 of the Immigration Act, which, along with section 41, outlines the “only powers of detention” contained in the Immigration Act.
Section 25 deals with the process in which people who are refused leave to land can be removed from the Bahamas, while section 41 deals with the process in which a person subject to a deportation order may be removed from the Bahamas, which may include the detention of that potential deportee.
However, Justice Hilton said as Mr Jean-Charles was never refused leave to land in the Bahamas due to him being born in the country, and as no deportation order was made against him, he could not be arrested and detained under section 25 and similarly, could not be detained and deported under section 41.
Justice Hilton also questioned the validity of the only document connected to Mr Jean-Charles’ removal from the Bahamas, namely the return executed by Ms Ferguson.
“It is unclear on what basis this document was prepared and executed as there is no law of which I am aware which lawfully allows the director of immigration to authorise the removal, surrender, deportation of expulsion of a person from the Bahamas to another country,” he said.
Justice Hilton further stated that the uncertainty surrounding whether Mr Jean-Charles had “legal or non-legal status” or anyone facing similar position “cannot be a basis for his detention and deportation” under section 40 (1) (a) of the Immigration Act.
“I find that the Applicant has been deprived of his personal liberty, unlawfully arrested and detained/falsely imprisoned in breach of his rights guaranteed under Article 19 (1), (2) and (3) of the Constitution,” he said.
“I also find that the applicant has been unlawfully expelled from the Bahamas in breach of his right guaranteed under Article 25 (1) of the Constitution.”
After the ruling, a jubilant Mr Smith said: “I am very happy that the judge has ruled in Jean Rony’s favour. I am pleased that the judge has reviewed the constitutional provisions and that by this judgment he is giving muscle to the skeleton and structural foundation of the Constitution.
“Article 28 of the Constitution is a very powerful remedy, and I am very happy that the Supreme Court judges are starting to use Article 28 to promote and protect people’s fundamental rights under the constitution.”
Jean Rony’s sister Ms Jean Charles, when interviewed, said she felt “great, wonderful, thrilled” and “marvelous” after hearing Justice Hilton’s ruling.
“I feel good because he’s coming back home,” she added.