Detention of 26 Haitians
…to proceed with matter despite unknown whereabouts of Haitians
Despite calls by Attorney General Anil Nandlall, SC, for the dismissal of the case challenging the constitutionality of the detention of 26 Haitians, whose whereabouts are now unknown, Chief Justice (ag) Roxane George on Friday said that she will go ahead and rule in the matter.
Chief Justice (ag) Roxane George
The Chief Justice underscored that the case touches on “very important” issues that need to be ventilated for future guidance and to prevent the possibility of a recurrence. She has fixed January 27, 2021, for ruling and/or clarification.
Nandlall had requested for the case to be thrown out, arguing that it is now academic since the foreign nationals who were ordered deported, cannot be located. He told the court that the Haitians have illegally left the jurisdiction, which has now confirmed the suspicion of the authorities. Also, he said Allandres Archer, the person who filed the constitutional proceedings on behalf of them, cannot be found.
According to the Attorney General, he has written to their lawyer, Darren Wade, requesting confirmation that his clients – 10 men, nine women and seven children – have left the jurisdiction or for him to present them before the court. Wade is yet to respond as he claimed he only received the letter 10 minutes before the start of Friday’s proceedings.
The lawyer requested an extension in time “to get all the evidence together” since the time given to respond was too short. “No, the time could not be short because you considered this a situation or a case that required some urgency and that is why I fixed the timelines that I did,” Justice George said in upbraiding Wade.
The lawyer is seeking several declarations, including one that his clients’ constitutional rights were violated as they were kept in custody beyond the 72 hours without an extension from the High Court. He is also seeking another declaration that his clients’ rights to liberty were violated when they were unlawfully detained by the State pending deportation at the Hugo Chavez Rehabilitation Centre.
But the Chief Justice asked Wade, “How can the court make declarations for persons who are no longer within the jurisdiction of the court? The entire basis of your application is founded on whether the deportation orders should have been granted or not.”
Future guidance
“These are some important questions that have to be answered to my mind in the context of this case for the future guidance because we don’t want this to be happening again… If somebody is a prohibited immigrant, they are a prohibited immigrant. But the question is the procedures have to be followed…,” Justice George said while noting that the issues are not “necessarily academic.”
According to her, after perusing the submission filed by the State, many questions are still unanswered. For one, she said that the State submitted that while at the Criminal Investigations Department Headquarters, it was ascertained that the address the Haitian nationals had given to immigration officers was incorrect.
“I am trying to understand that at what point were the subjects [Haitians] no longer considered to be victims of trafficking. And at what point it was determined that they were prohibited immigrants and were they advised and told of that fact?” she asked the Attorney General.
The State is contending that the Haitian nationals are prohibited immigrants pursuant to Article 47 of the Constitution and that Wade seeking to invoke the fundamental right provision is flawed since Haitians are not considered Commonwealth citizens under this provision.
According to the Attorney General, Article 47 only applies to citizens of Guyana, the Commonwealth, and other countries listed therein. Haiti, he said, is not included among those territories, which makes them aliens.
The State is further contending that the foreign nationals were victims of human trafficking. But according to the Chief Justice, there is no evidence that the State provided them with certain support and intervention as prescribed in the Combating of Trafficking in Persons Act.
According to Justice George, the State produced evidence that Archer was associated with one of the addresses provided by the Haitians, and from his application, it appears that he made all the arrangements for them to come to Guyana. In this regard, she pointed out that it is a relevant issue whether the Haitians should have been given a right to be heard before the deportation order was granted.
Justice George said that under Section 16 of the Immigration Act, an immigration officer is permitted to do certain things if they consider somebody as a prohibited immigrant. “They can turn them back, or give them a certain amount of time to leave the country and they have a right to appeal…cause them to be arrested and taken before a Magistrate.”
The Attorney General has indicated to the court that all its questions regarding the Haitian nationals will be answered in written submissions which will be laid over by January 15, 2021.
It was on December 1, 2020, that Principle Magistrate Sherdel Issace Marcus issued the deportation order against the Haitians for their violation of Guyana’s immigration laws. Two days later, the Chief Justice granted a conservatory order suspending the deportation order until the court rules in the matter.
