In separate rulings, Hilton ordered the unconditional release of Earl Burton, a Jamaican; Ancelet Curry, a Bahamas-born man of Haitian descent; Gerna Jean-Tinord, a Haitian woman, and her daughter, Gemma Joseph; Jamaican Kediesha Bent-John, who is married to a Bahamian, and her daughter, Chitara John; Verante Mocombe, a Haitian woman, and her daughter, Claudia Norcin.
Justice Gregory Hilton ordered their release from the Carmichael Road Detention Centre, noting that in the case of one of the former detainees “it seems to me, however, that to establish that a person is ‘found in The Bahamas after landing in contravention of this (Immigration) act’, it must be first determined or proven by some court on a judicial hearing”.
In his ruling, the judge made reference to a 2004 case where the former Court of Appeal President Dame Joan Sawyer “confirmed the legal position in The Bahamas that detention or arrest with a view to deportation without being taken before a court is not permissible”.
He also cited section 18 of the Criminal Procedure Code, which states that, after an arrest, a peace officer “shall without unnecessary delay and not later than 48 hours after such arrest, take or send the person before a magistrate”.
“It is clear, therefore, that if an individual is apprehended by the agents of the immigration department on suspicion of having committed an offense, as is alleged against the applicant, that the individual cannot be detained for more than 48 hours before being charged and taken before a magistrate,” the judge said, adding “any time longer is an unauthorised detention and is unlawful”.
Attorneys Fred Smith, QC; Damian Gomez, QC; Dawson Malone; Crispin Hall and Nicholas Mitchell represented the detainees.
Justice Hilton said that while Article 19 of The Bahamas Constitution recognises the power of the state to detain and expel non-nationals, “however, this must be done within the four corners of the law.
“Any detention not authorised by statute or the common law would be a breach of the individuals’ constitutional rights.”
Using the 2004 case in his ruling, the judge said that when a “person reasonably suspected of illegal landing is not taken to court as required… the deportation order by the minister could not render the appellant’s incarceration thereafter lawful, because until a court has decided that he had breached the law, there was no legitimate basis on which the deportation order itself could have been made”.
In his affidavit, Burton, who came here by boat was later arrested for illegal landing and detained by immigration officers on August 15, last year, while Bent-John gave birth to her daughter, Chitara John, in July 2006. They were arrested for overstaying and detained at the detention centre in a safe house.
The Haitians also indicated through their affidavits that they were detained last year
- Countries: Bahamas