INSIGHT – Arrest, detention and deportation has not worked for 70 years. It’s time to stop the insanity and try something else


Attorney Fred Smith QC

By Frederick Smith, QC

Haitians aren’t coming to take over. Those born in The Bahamas of Haitian parents, our Citizens in Waiting, are not either. They aren’t conspiring to steal our jobs, destroy our public services, or breed us out of existence. They do not want to make The Bahamas a colony of Haiti.

Bahamians have heard such paranoid fables all of our lives. But 50, 60, 70 years later, it still hasn’t happened. What’s more, there isn’t any any evidence to suggest it ever will. People talk about ‘illegal’ Haitians overwhelming our education and healthcare systems, but not a single shred of evidence, no survey or social impact study, has ever been produced showing this to be true.

In fact, what evidence does exist suggests quite the opposite. A 2005 International Organisation for Migration report found that only 8.8 per cent of all school children in public schools were Haitian, and that Haitians constituted just over 11 per cent of hospital admissions in 2001. And while the data may be a bit dated, Bahamians were already screaming 40 years ago that the country was overrun by Haitian migrants.

Then there is the Shanty Town Task Force Report, produced just last year, which showed that only six percent of the people living in these communities has any issue with their immigration status. Hardly an epidemic.

Better jobs for Bahamians

Meanwhile, abundant research has shown that far from being a drain on the economy, unskilled migrant workers actually provide a huge boost to national productivity and growth. When allowed to make money, they buy goods at local businesses, pay to use local services, and contribute taxes like duty, VAT and National Insurance into the treasury which can be used to improve healthcare, education and other public services.

Rather than taking away jobs, unskilled migrant workers actually create more, better paying jobs for locals. This is not rocket science - the greater the number of individuals earning money in a society, the more money gets spent, to the benefit of small and medium businesses primarily. And, the more money that flows into each of these businesses, the more they can expand and hire new people.


Haitian migrants boarding a bus to be transported to the Carmichael Road Detention Centre. Photo: Chief Petty Officer Jonathan Rolle/RBDF

Generally speaking, Bahamians do not want to work as farmers, gardeners or housekeepers. We want high paying, highly skilled jobs that carry the chance of regular promotion. And it is precisely the low paid migrant labourer who frees up funds for the employer to create more positions of responsibility. Migrants will work for less than Bahamians, so businesses owners have more cash in hand to expand.

Bahamians, who have attended formal schooling for years and spoken English from birth, have a distinct advantage over unskilled migrants when it comes to these new jobs that require decision making and communication skills. Haitians are not taking our jobs, they are making the jobs we want possible!

This dynamic is the reason why in so many advanced, successful nations, menial jobs are largely done by migrant workers while locals are able to move up the wage ladder. Why on earth would we want to tie our own people to low paying, unskilled work when there is another, better way?

Irregular migration should not be a crime

Yet Bahamian politicians refuse to let go of the stubborn, irrational mindset that all migrants and their children born in The Bahamas are criminals and therefore undeserving of an opportunity to earn money and make a better life. People do not migrate out of a desire to break another country’s laws, or because they want to take what belongs to others; they do it to flee the utter misery, appalling deprivation and terrifying violence of the place where they were born. Those born here have a right to stay and be citizens.

Not a single person leaves Haiti to face a dangerous sea voyage which they may not survive lightly. None of them did a thing to cause the circumstances they are escaping, and for many, there is no other recourse but to leave by any means possible. And children are not born presumed guilty and criminals!

The rest of the world is coming to recognise that irregular migration is a humanitarian crisis, not a crime. In 2016, UN Secretary General Ban Ki-moon, pictured right, called for member countries to decriminalise irregular migration and regularise the status of undocumented migrants. International Organisation on Migration (IOM) Director General William Lacy Swing echoed this call, adding it was the surest way to defeat human trafficking. And December 2018, UN Special Rapporteur on the human rights of migrants Felipe González Morales affirmed that: “While irregular entry and stay may constitute administrative offences, they are not crimes per se against persons, property or national security.”

In addition, the UN Office of the High Commissioner for Human Rights (OHCHR) has affirmed states should: “Ensure that it is not a criminal offence to leave, enter or stay in a country irregularly, given that border crossing and the management of residence and work permits are administrative issues. Any administrative sanctions applied to irregular entry should be proportionate, necessary and reasonable, and should never include the detention of children.”

Already in Europe, the judiciary has made significant steps towards the decriminalisation of all migration in order to take full account of fundamental rights enshrined in the Charter and the ECHR and the rule of law.

Even in America, where the political argument over irregular migration continues to rage, the first open advocates for decriminalisation are beginning to appear. The idea forms part of the platform of Julián Castro, a 2020 Democratic presidential hopeful and has also been supported by Congressional and Senatorial candidates.

Alternatives to detention

It has been repeatedly shown detention does not deter undocumented migration. It is a continual drain on government resources. It poses a constant threat to a country’s international reputation through allegations of inhuman conditions, abuse and lengthy detention periods. It costs the public treasury in litigation. For these reasons - and due to a growing recognition that in all situations, human liberty should be the norm unless absolutely unavoidable - other countries are increasingly opting to introduce alternative solutions.

Insanity is doing the same thing over and over again and expecting a different result. Arrest, detention and deportation has not worked for 70 years. It’s time to stop the insanity and try something else! I don’t profess to know all the answers; but I do know that what we have been doing has not worked and has been absolutely inhumanely insane. We should stop and try to find other more humane solutions.

These can be anything from ankle bracelet monitoring or release on bond with sureties from friends or family members, to more sophisticated schemes. And as far as those born in The Bahamas is concerned, we should just pass a law that makes them automatically Bahamian or simply gives them the right to work based on their birth certificate. We don’t have to amend the constitution for that.

Today there is some form of alternative to detention in more than 60 countries around the world and many are extremely successful with compliance rates well above 90 percent and voluntary participation by migrants across the board. For example:

• Spain - Open reception centres for migrants with incentives to remain registered while being processed.

• Turkey - Freedom of movement for migrants with regular reporting duties

• Chile - Temporary legal status granted to migrants with monitoring

Ending the detention of irregular migrants and the inhumane hunting of those born in The Bahamas would fit with the various international covenants which The Bahamas has signed or become party to by its membership in the United Nations, like the Convention Relating to the Status of Refugees; the International Covenant on Civil and Political Rights; and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

Making a virtue out of necessity

Migration is an historical and current reality. The Bahamas can’t opt out of being a place where people migrate in and out of. Nearly everywhere in the world, migration flows have been increasing steadily for decades. According to the United Nations, more people live in a country other than their place of birth today than ever before.

Other countries have dealt with this reality by embracing the potential of these people for the benefit of society as a whole.

For example, in France in 1997 and 1998, immigrants who had been in the country for seven years or longer, or who had significant family ties in France, were granted legal status to live and work. In Spain in 2005, over 570,000 persons were regularised and given the right to work. In Italy in 2009, all migrants working as home nurses and caregivers were regularised.

Germany is currently crafting new laws to give well-integrated irregular migrants already in employment a chance to remain in the country. In the US today, 750,000 people who arrived as children now have temporary legal status under the 2012 Deferred Action for Childhood Arrivals (DACA) and have renewable two-year work and residence permits.

It is inevitable people will come to The Bahamas from elsewhere, some of them in the approved manner, some of them otherwise. Some of them are just born here and we should embrace them as fellow citizens. If irregular migration should not be seen as a crime but rather an administrative challenge, and if irregular migrants should therefore enjoy freedom of movement, and if injecting these people into the workforce will create more and better opportunities for Bahamians, then what are we waiting for?

The Bahamas should allow irregular migrants to live and work here while they sort out their status issues and contribute to growing the economy to the benefit of all of us. It is the only rational, common-sense solution to the huge waste of resources created by the “capture, detain, deport” approach, with its awful implications for human rights.

If a lack of “papers” is the issue, we can simply document and register all irregular migrants. It does not have to be permanent, but at least they will all be accounted for and our society’s near pathological obsession with documentation and control will be satisfied.

Until Fred Mitchell’s pogroms began in 2014, those born here never had a problem.There will no longer be a need for the Immigration Department to go hunting Haitians or people born in The Bahamas and terrorising people left, right and centre, including Bahamian citizens who are now regularly illegally stopped, questioned, and subjected to search, seizure. We no longer have freedom of movement in The Bahamas because of this immigration obsession with “documentation”. And now, under the new Bill, it is proposed to give Immigration more Gestapo- like illegal, unconstitutional powers to demand papers of every single person - not just those who might be actually suspected of an offence. The obsession with “documentation“ is costing all of us, Bahamians especially, their freedom. Everyone is now presumed guilty until they can prove their innocence!

Migrants will be eternally grateful, and they’ll enter the low wage bracket where they can be of maximum value to our economy, doing work that is so disagreeable to Bahamians that we currently bring in Filipinos, Chinese – and yes, thousands of Haitians – on work permits to do it.

It really is insane to deport Haitians who are already in the country or or those born here while bringing people in from Haiti. It seems to be all about the piece of paper. Why not simply give those who are here the paper.