The IMMIGRATION (BIOMETRICS) REGULATIONS 2015 are NULL, VOID and Un-Constitutional
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If Prime Minister Freundel Stuart has his way, Barbadians will be virtually the only people on the face of the earth who are obligated to be fingerprinted by their own Government every time they attempt to leave their own country or to return to their own country!
No American citizen is fingerprinted by the US Government when he or she attempts to leave or return to the USA! No British citizen is fingerprinted! No Canadian citizen! No Trinidadian, Jamaican, Cuban, Venezuelan, Chinese or Indian citizen is fingerprinted by their Government when they attempt to leave or to return to Trinidad, Jamaica, Cuba, Venezuela, China or India!
So why does Mr. Freundel Stuart and his Democratic Labour Party (DLP) Adminstration wish to fingerprint Barbadians every time they travel, and who do they propose to give those collected fingerprints to?
If it hasn’t been said before, let me be the first to declare it:- Prime Minister Freundel Stuart's so-called “Immigration (Biometrics) Regulations, 2015” are a national disgrace!
Every conceivable thing that could be wrong with and about these Regulations that Mr. Stuart has purported to make is wrong!
To begin with, the “politics” of the so-called “Regulations” are wrong! In a supposedly free and democratic society, Stuart chose to foist these “Regulations” on an unsuspecting populace without any advance notice or public discussion! Just imagine – “Regulations” that purport to denude the citizenship rights of Barbadians and to substantially infringe Barbadians’ constitutionally guaranteed right of “freedom of movement” are made in secret and without any reference to the Barbadian public!
Secondly, Mr. Stuart and his legal advisors are so inept that the “Regulations” are also procedurally wrong! Apparently, Stuart and company were so intent on shrouding these “Regulations” in secrecy that they failed to follow the clearly stipulated legal procedure for making such Regulations!
The “Regulations” are also in breach of both the Constitution of Barbados and of fundamental principles of International Law that frown upon any measure that has the effect of prohibiting a person from being able to return to his or her native country.
It should be noted that the long established “rights” of the Barbadian people in relation to this matter of their freedom to leave and return to their native country are as follows:-
"Section 4 of the Immigration Act
1. A citizen has the right to enter Barbados.
2. A Permanent resident shall, so long as he continues to be a permanent resident, be permitted to enter Barbados.
3. The Minister (responsible for Immigration) may prohibit the entry into Barbados of any person other than a citizen or a permanent resident."
"Section 22 of the Constitution of Barbados
1. No person shall be deprived of his freedom of movement, that is to say…the right to enterBarbados, the right to leave Barbados…
3. Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision –
a) for the imposition of restrictions on … any person’s right to leave Barbados that are reasonably required in the interests of defence, public safety or public order;"
(Note:- It should be noted from the foregoing that the Constitutional right of citizens of Barbados to enter Barbados is absolute and unfettered, while the right of citizens to leave Barbados may be restricted in the interest of defence, public safety or public order.)
Now, let us consider the details of and the circumstances surrounding the so-called Immigration (Biometrics) Regulations 2015. The facts pertaining to these Regulations are as follows:-
1) On the 17th of April 2015 Prime Minister Stuart – in his capacity as Minister Responsible for Immigration – formulated or “made” the so-called “Immigration (Biometrics) Regulations, 2015”. (Please note that formulating or “making” regulations is just the initial step in the process of “enacting” regulations – they also have to be laid in Parliament and published in the Official Gazette.)
2) According to the text of the said Regulations, Stuart claimed to be acting under the power granted to him by Section 31 (g) and (h) of the Immigration Act to make regulations for “prescribing the means to be taken for identifying persons suspected of being in Barbados contrary to the (Immigration) Act” and for “prescribing anything that is by this (Immigration) Act authorized or required to be prescribed”
(How fingerprinting Barbadian citizens can be a measure for “identifying persons suspected of being in Barbados contrary to the Immigration Act” is anybody’s guess! Furthermore, none of the things that the Immigration Actauthorizes or requires the Minister responsible for Immigration to prescribe appertain to fingerprinting Barbadians citizens whenever they attempt to leave or return to Barbados!)
3) The effect of Stuart’s “Regulations” as they pertain to citizens of Barbados traveling to and from Barbados is as follows:-
a) Where any person seeks to enter or depart from a port in Barbados, that person shallprovide an immigration officer with biometric data (fingerprints, facial photographs, scan of the retina of the eye etc.) through the use of a biometric system.
b) The Chief Immigration Officer shall specify the type of biometric data that a person shall provide. (Note: The Chief Immigration Officer has already specified that Citizensof Barbados will be fingerprinted from 1st April 2016)
c) A citizen of Barbados who refuses to provide an immigration Officer with the specified biometric data (fingerprints) may be restrained from leaving the island.
d) A citizen of Barbados who complies with the request to provide the specified biometric data (fingerprints) when he leaves Barbados, but who refuses to comply with the request to provide the specified biometric data when he seeks to return to Barbados, shall be refused re-entry into Barbados.
e) A citizen of Barbados who, having refused to comply with the request to provide the specified biometric data (fingerprint) when he attempts to leave Barbados, is still permitted by an Immigration Officer to leave the island, shall not be refused re-entry into Barbados.
(It is clear therefore that these Regulations BREACH the Constitutional right of Barbadian citizens to ENTER Barbados, and severely restrict our right to LEAVE Barbados!)
4) But that is not all there is to note about the Immigration (Biometrics) Regulations 2015! These Regulations, that Stuart formulated or “made” on 17th April 2015 , contain a total of 18 sections. No less than 12 of these 18 sections deal with storing the biometric data of Barbadian citizens (and non-Citizens), and with the conditions for making such data available to foreign and domestic state agencies and / or private agencies!
(This can only lead the citizens of Barbados to have serious doubts and reservations about the purpose of collecting their fingerprints whenever they leave and return to their country, and also about whose agenda the Stuart Administration is carrying out.)
5) So far as the procedural irregularities of the Regulations are concerned, it should be noted that the “Regulations” that Stuart formulated or “made” on the 17th of April 2015 were “made” under the Immigration Act Chapter 190 of the laws of Barbados, and that Section 31 (3) of the said Immigration Act stipulates that all regulations made by the Minister responsible for Immigration “shall be subject to negative resolution.”
The legal procedure for enacting “regulations” that are “subject to negative resolution” is outlined in Section 41 of the Interpretation Act Chapter 1 of the Laws of Barbados as follows:-
“(2) …the expression “statutory period”… shall mean a period of forty days…”
“(7) The expression “subject to negative resolution” when used in relation to any statutory instruments (such as regulations made under a Statute or Act of Parliament) shall mean that such instruments shall, as soon as may be after they are made, be laid before each House (of Parliament), and if either House, within the statutory period (of 40 days) next after such instrument has been so laid, resolves that the instrument shall be annulled, the instrument shall be VOID as from the date of the resolution …”
And Section 16 (1) – “Every enactment (such as Regulations made under an Act of Parliament) shall be published in the Gazette and, unless the enactment otherwise provides, shall take effect and come into operation on the date of such publication,”
Thus, having "made" the Regulations on 17th April 2015, Mr Stuart was -- BY LAW -- obligated to lay them before the House of Assembly and the Senate, and to give the members of those two Houses of Parliament a period of forty (40) days to consider whether they wanted to bring and pass a Resolution to annul the said Regulations ! Mr Stuart was obligated to go through this procedure BEFORE he could publish the Regulations in the Official Gazette as the law of the land!
What Mr Stuart, in fact, did was to publish the Regulations in the Official Gazette of the 23rd of April 2015--- a mere six (6) days after he "made" the Regulations! He thus breached the law by failing to lay the Regulations in Parliament and giving Parliament 40 days to consider whether to annul them! Indeed, he was only entitled to publish them in the Gazette as the law of the land IF they had been before Parliament for 40 days AND Parliament had not passed a resolution annulling them!
Mr Stuart did not, in fact, "lay" the Regulations until the 15th of June 2015--- some 53 days after he had already wrongfully published them in the Official Gazette as the law of the land. Once again, this was totally wrong, and in breach of the legal procedure outlined in the Interpretation Act!
On a procedural basis alone, therefore, the Immigration (Biometrics) Regulations 2015 are null and void and of no legal effect!
It should also be noted that the Regulations were laid so quietly and unobtrusively in Parliament on the 15th of June 2015 that not one of the several Opposition Parliamentarians that I have spoken to about this matter were aware that the Regulations had been laid in Parliament!
This entire matter is a total disgrace, and confirms that standards of governance and respect for the rights of the citizens of Barbados have plummeted significantly under the current DLP Administration.
In light of the fore-going, I now hereby call upon Prime Minister Freundel Stuart to -- within the next seven (7) days -- publicly affirm that the so-called Immigration (Biometrics) Regulations 2015 are a nullity and are of no legal effect! Failure to do so will result in the instituting of legal proceeding in the Supreme Court against the Government of Barbados in respect of this matter.
( A copy of the first page of the Gazette and of a number of the relevant sections of the Regulations is attached hereto)
DAVID COMISSIONG
President
Peoples Empowerment Party
CNIDOH/AO
