Constitutional Commission Report.
A number of recommendations for reforms in the island’s citizenship laws have been put forward by the Constitutional Reform Commission.
These are contained in Chapter 11 of the report which will begin to serialize in two parts starting today:
CHAPTER ELEVEN
CITIZENSHIP ACT AND RELATED PROVISIONS
Although closely associated with nationality, citizenship is an independent concept with the nation being only one possible community within which citizenship is exercised. Citizenship as opposed to nationality is defined as belonging to a community or groupings of persons who recognise that they have something in common, either based on the acceptance of the legitimacy of the state in which they live, shared history, ethnicity, religion or common purpose. This means that nationals and non-nationals can exercise citizenship by their participation in the economic, social and political life of their community. Nationality generally connotes membership of a nation or sovereign state which affords the state jurisdiction over the person and affords the person the protection of the state. Notions of citizenship in constitutional theory reflect a nexus between one’s national identity and sense of belonging to the state which confers certain rights and obligations as defined in domestic law, principally, a constitution. Citizenship in this regard is therefore restricted to concepts of allegiance, entitlement and obligations. A constitution should therefore define and guarantee the position of the citizen. This relationship is defined as ‘constitutional reconstruction’ in the sense that the citizen should play an active role in the respect for and advancement of the constitution and, the constitution should in turn protect and foster citizenship. recent world trends towards the establishment of multi-country political and economic unions have introduced the concepts of “regional citizenship” or “international citizenship”. For example, the Maastricht Treaty establishing the European Union gave recognition to the concept of “citizenship of the European Union” with citizens having some minimal rights including the right of nondiscrimination within the scope of the Treaty, a limited right to free movement and residence in Member States as well as certain political rights. The Commonwealth of Nations to which Saint Lucia belongs also prescribes the notion of a “Commonwealth citizen” being one who is a citizen of a Commonwealth member state. This form of citizenship offers certain privileges within some Commonwealth countries including the waiver of visa restrictions to enter and remain in the state, the ability to participate in the political life of the country including, in the case of Saint Lucia, nomination to the Senate (Upper House)91. There are many pieces of ordinary legislation in Saint Lucia which confer a ‘privileged position’ to Commonwealth nationals as opposed to other nationals generally described in law as ‘aliens’. For example, the period of residency and fees required to apply for citizenship of Saint Lucia is less onerous for a Commonwealth citizen than for a non-Commonwealth citizen.
The current regional movements toward OECS Economic Union and the CARICOM Single Market and Economy (CSME) required that the Commission explore the issue of regional integration and the impact of a possible “regional citizenship”. The Commission considered the two arrangements and submissions, to allow for this new class of citizenship in the future. It was noted that Section 103 of the Constitution empowers Parliament to make law regarding the acquisition of citizenship by persons who are not eligible under the existing provisions of the Constitution. Therefore it is possible that the Citizenship Act can be amended to include a class of “regional citizens” without falling foul of the Constitution. The Commission was therefore of the view that there was no need to make a clear recommendation on this, given the provisions of Section 103. Further the Commission felt that the matter should be properly determined through reciprocal treaty arrangements among the OECS or wider Caribbean before any amendment to the Constitution or related legislation92 as the case may be.
The Commission also considered the grant of citizenship on economic grounds. It was argued that this can generate significant revenue for developing states like Saint Lucia and encourage investment. The Commission was wary however, of the potential negative impact of these schemes and the perception that the country was “for sale”. The submission was very unpopular among members of the public who participated in the consultations and there were suggestions that this should be specifically banned in the Constitution. The Commission was not persuaded that the advantages of economic citizenship were sufficient to sacrifice the ideals of national identity and citizenship. The Commission by a majority therefore agreed that economic citizenship should be excluded and specifically banned in the Constitution.
In its review of the constitutional provisions relating to the acquisition, retention and deprivation of citizenship contained in Sections 99 to 104 of the Constitution, the Commission was also required to review the provisions of the Citizenship of Saint Lucia Act93 and regulations made pursuant to the Act. The Commission was of the view that the Act is incoherent in its organisation. Further, the Commission felt that the Act was imprecise and as such open to wide interpretation and leading to weak enforcement. Moreover, both the Act and the Constitution contained discriminatory provisions in relation to women with respect to the conferment of benefits on a non-St. Lucian spouse.
In accordance with the Constitution and the Citizenship Act, an individual may become a citizen of Saint Lucia on the following grounds: jus soli94 (right of soil), that is by virtue of being born in the country, jus sanguinis95 (right of blood) by virtue of the citizenship of at least one parent, jure matrimonii96, through marriage to a person holding citizenship and through naturalisation97, having satisfied periods of residency within the country.
With respect to citizens by birth or jus soli it was noted that children born in Saint Lucia to nonnationals whose father possesses diplomatic immunity or whose father is a citizen of a country with which Saint Lucia is at war, shall not become a citizen. It is therefore possible to be born in Saint Lucia and not be entitled to citizenship. There were many complaints made by persons in the Diaspora who felt that they were treated as second class citizens by immigration officers on entry into Saint Lucia with a foreign passport, notwithstanding that the passport would have a notification to the effect that the holder was “born in Saint Lucia”. While the Commission took cognisance of the affirmation of allegiance by members of the Diaspora and the strong ties they feel towards Saint Lucia, the Commission was constrained to accept submissions that they should be treated as holders of Saint Lucian passports for the following reasons. As described in the scenario above, the status of being born in the State does not necessarily confer citizenship and secondly the Commission took cognisance of the fact that in some cases there would have been a renunciation of the Saint Lucian citizenship to facilitate the acquisition of the other.
With respect to citizens by descent or jus sanguinis, the law restricts the entitlement to a person whose parent is a citizen. Therefore, an individual is not entitled if a grandparent and not the parent is a citizen of Saint Lucia. The Commission agreed with the submissions that this provision was too restrictive and that entitlement to citizenship should extend to a person whose grandparent is a citizen.
With respect to citizenship through marriage or jure matrimonii the Constitution and the Act allow the appropriate Minister, on specified grounds, to deny the application for the grant of citizenship to a man married to a Saint Lucian woman. In contrast, the appropriate Minister must grant citizenship to a woman married to a Saint Lucian man once the applicant fulfils the requirements. The Commission supported submissions that this distinction, although rooted in the principle under old law, that a woman assumed the domicile of her husband was discriminatory and unacceptable. The Commission was therefore of the view that this right (citizenship) should extend to both male and female applicants.
However, the Commission considered the provisions on marriage to be very weak, in that, there are no provisions dealing with sham marriages which the Commission defined as a marriage solemnised solely for the purpose of presenting an application for citizenship. The Commission agreed that the Act should be redrafted to contain a separate section or sections dealing with marriage including the power to deny an application or revoke a grant where the marriage is found to be a sham.
With respect to submissions that there should be a period of time after the marriage before one would be entitled to apply for citizenship, the Commission noted that there were many “real” marriages which did not survive the first or second anniversary.
Imposing this restriction would only ensure that the sham is perpetuated for the requisite period.
With respect to applications on the basis of marriage and in cases of naturalisation or residency requirement (seven (7) years for Commonwealth citizens and eight (8) years for all other nationalities), the Commission received many complaints relating to the length of time for processing the application. The Commission was informed that in some cases this may take up to two years. The main reason cited for the long delays was that these applications were vetted by the Police who investigated each application. However, due to the limited human resources within the Police Force, applications would languish for years or months before being investigated. The Commission was persuaded by submissions that this function should reside in a civilian entity dedicated to this task.
Submissions were made that the Act should provide for the granting of permanent residence status as a precursor to the grant of citizenship in eligible cases. In the absence of such a provision, the residency status of the applicant must be renewed on a monthly basis. The legislation does not categorise these applicants as residents and consequently they are forced to keep paying for extensions of stay and work permits in addition to paying the fee for the grant of citizenship. The Commission agreed that the Act should make clear provisions regulating the status of an individual during the period between the filing of the application and grant or refusal of the grant of citizenship.