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Last Updated: Feb 13, 2017 - 1:45:37 AM |
Fred Smith, QC: New Immigration Student Visa Rules Not Sanctioned By Law
By Fred Smith, QC Grand Bahama Human Rights Association President
Feb 5, 2015 - 3:47:38 PM
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 The GBHRA hereby responds to the Ministry of Foreign Affairs and Immigration’s defence of the new education policy.
Policy is not law. It cannot override the law. In defending the policy, Minister Mitchell 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 authorized 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 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 over stay 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 which 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 authorizes Ministers by statutory instruments to create subsidiary legislation, rules and regulations which are within specifically authorized sections of the main act.
Parliament does not authorize 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 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 polices 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 penalize 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 who are born abroad within the Bahamas.
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 R. M. Smith Q.C.
Disclaimer:
The views expressed here are solely those of the author in his/her
private capacity and do not in any way represent the views of
TheBahamasWeekly.com
© Copyright 2015 by thebahamasweekly.com
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