Attorney General v Shannon Tyreck Rolle and 4 others
| Jurisdiction | UK Non-devolved |
| Judge | Lord Lloyd-Jones |
| Judgment Date | 04 May 2023 |
| Neutral Citation | [2023] UKPC 13 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0015 of 2022 |
[2023] UKPC 13
Lord Lloyd-Jones
Lord Leggatt
Lord Burrows
Lord Stephens
Sir Mark Horner
Privy Council Appeal No 0015 of 2022
Privy Council
Easter Term
From the Court of Appeal of the Commonwealth of The Bahamas
Appellant
Thomas Roe KC
Kirkland MacKey
(Instructed by Charles Russell Speechlys LLP (London))
Respondent
Edward Fitzgerald KC
Damian Gomez KC
Daniella Waddoup
Bridget Ward
(Instructed by Simons Muirhead Burton LLP)
Heard on 17 January 2023
These appeals raise an issue which was described by Crane-Scott JA in her judgment in the Court of Appeal as “a matter of high constitutional importance not only for [the Attorney General], but for the people of The Bahamas generally.” That issue is whether the Constitution of The Bahamas confers citizenship of The Bahamas at birth on a person born in The Bahamas who is the child of (1) an unmarried woman who is not a citizen of The Bahamas and (2) a man who is.
At first instance Winder J, declining to follow an earlier decision at first instance, held that the Constitution does confer citizenship at birth on such a person. On appeal, a majority of the Court of Appeal (Crane-Scott, Isaacs and Jones JJA; Sir Michael Barnett P and Evans JA dissenting) upheld that decision. The Attorney General now appeals to His Majesty in Council.
The respondents, who were the applicants in two sets of proceedings brought by originating notice of motion that have been heard together throughout, maintain that they are the biological children, born in The Bahamas, of unmarried mothers without Bahamian citizenship, by fathers with such citizenship. They submit that they are citizens of The Bahamas by birth and they seek declarations accordingly. The factual basis on which these claims are brought has been adjourned to be addressed at a later stage in the proceedings if it remains legally relevant.
The Constitution of The Commonwealth of The Bahamas was adopted at independence on 10 July 1973. Chapter II, comprising articles 3 to 14 of the Constitution, deals with citizenship of The Bahamas. (Unqualified references in this judgment to “citizens” and “citizenship” are to Bahamian citizens and citizenship.)
Article 3 concerns the citizenship of persons who were alive at independence. It provides:
“(1) Every person who, having been born in the former Colony of the Bahama Islands, is on 9th July 1973 a citizen of the United Kingdom and Colonies shall become a citizen of The Bahamas on 10th July 1973.
(2) Every person who, having been born outside the former Colony of the Bahama Islands, is on 9th July 1973 a citizen of the United Kingdom and Colonies shall, if his father becomes or would but for his death have become a citizen of The Bahamas in accordance with the provisions of the preceding paragraph, become a citizen of The Bahamas on 10th July 1973.
(3) Every person who on 9th July 1973 is a citizen of the United Kingdom and Colonies having become such a citizen under the British Nationality Act 1948 by virtue of his having been registered in the former Colony of the Bahama Islands under that Act shall become a citizen of The Bahamas on 10th July 1973:
Provided that this paragraph shall not apply to any citizen of the United Kingdom and Colonies —
(a) who was not ordinarily resident in that Colony on 31st December 1972; or
(b) who became registered in that Colony on or after 1st January 1973; or
(c) who on 9th July 1973 possesses the citizenship or nationality of some other country.”
Article 4 made provision for persons naturalised as citizens of the United Kingdom and Colonies in the former Colony of the Bahama Islands to become citizens of The Bahamas on 9 July 1974 unless they declared that they did not desire this.
Article 5 provided, subject to certain qualifications, for applications for citizenship by persons who, immediately before independence, were the wives of citizens or who were ordinarily resident in the Colony of the Bahama Islands.
Article 6, with the meaning of which this appeal is primarily concerned, is the first provision in Chapter II applicable to people born after the independence of The Bahamas. It states as follows:
“Every person born in The Bahamas after 9th July 1973 shall become a citizen of The Bahamas at the date of his birth if at that date either of his parents is a citizen of The Bahamas.”
Article 7 provides:
“(1) A person born in The Bahamas after 9th July 1973 neither of whose parents is a citizen of The Bahamas shall be entitled, upon making application on his attaining the age of eighteen years or within twelve months thereafter in such manner as may be prescribed, to be registered as a citizen of The Bahamas:
Provided that if he is a citizen of some country other than The Bahamas he shall not be entitled to be registered as a citizen of The Bahamas under this Article unless he renounces his citizenship of that other country, takes the oath of allegiance and makes and registers such declaration of his intentions concerning residence as may be prescribed.
(2) Any application for registration under this Article shall be subject to such exceptions or qualifications as may be prescribed in the interests of national security or public policy.”
Article 8 provides:
“A person born outside The Bahamas after 9th July 1973 shall become a citizen of The Bahamas at the date of his birth if at that date his father is a citizen of The Bahamas otherwise than by virtue of this Article or Article 3(2) of this Constitution.”
Article 9 provides:
“(1) Notwithstanding anything contained in Article 8 of this Constitution, a person born legitimately outside The Bahamas after 9th July 1973 whose mother is a citizen of The Bahamas shall be entitled, upon making application on his attaining the age of eighteen years and before he attains the age of twenty-one years, in such manner as may be prescribed, to be registered as a citizen of The Bahamas:
Provided that if he is a citizen of some country other than The Bahamas he shall not be entitled to be registered as a citizen of The Bahamas under this Article unless he renounces his citizenship of that other country, takes the oath of allegiance and makes and registers such declaration of his intentions concerning residence as may be prescribed.
(2) Where a person cannot renounce his citizenship of some other country under the law of that country, he may instead make such declaration concerning that citizenship as may be prescribed.
(3) Any application for registration under this Article shall be subject to such exceptions or qualifications as may be prescribed in the interests of national security or public policy.”
Article 10 entitles the wife (but not the husband) of a person who is or becomes a citizen to be registered as a citizen.
Articles 11 and 12 concern, respectively, deprivation and renunciation of citizenship. Article 13 empowers Parliament to create other routes to citizenship and other grounds for the removal of citizenship acquired otherwise than at birth.
Article 14(1) states:
“Any reference in this Chapter to the father of a person shall, in relation to any person born out of wedlock other than a person legitimated before 10th July 1973, be construed as a reference to the mother of that person.”
The issue in the present proceedings, namely whether the Bahamas-born child of an unmarried non-citizen mother and a citizen father is a citizen, arose for consideration in K v Minister of Foreign Affairs [2007] 2 BHS J No 12. Hall CJ, sitting at first instance, held that such a child was not a citizen of The Bahamas. The Chief Justice considered (at para 11) that the only possible interpretation of the word “parents” in article 6 was the ordinary grammatical meaning of “father or mother”. He was not persuaded that the absence of “parents” anywhere else in Chapter II (save for article 7(1) which concerns persons born in The Bahamas “neither of whose parents is a citizen”) had any significance other than the economical use of language by the draftsman of the Constitution. The Chief Justice was unable to see how any other interpretation of the word “parent” was possible. He concluded (at para 12) that:
“The effect of Article 6 is that a person born in The Bahamas after Independence inherits the Bahamian citizenship of either his mother or father subject, however, to the clear words of Article 14(1) that, if that person is born out of wedlock, he can only inherit citizenship through his mother.”
In July 2013 the issue was considered in the Report of the Constitutional Commission into a Review of The Bahamas Constitution. The questions referred to the Commission included “the strengthening of the fundamental rights and freedoms of the individual, with a particular focus on citizenship provisions”. In their Report the Commissioners made the following statement in relation to article 6 of the Constitution:
“Article 6: Children born in The Bahamas where either parent is Bahamian
14.14 The Commission is of the view that this provision is not discriminatory. It adopts a hybrid position between acquisition of citizenship based on birth in territory and descent, and the combination of each grants automatic entitlement at birth. However, it seems to have been susceptible to an interpretation that it is discriminatory in its effects. This results from what the Commission considers – and with the greatest of respect for the Courts – to be the erroneous interpretation of the word ‘parents’ in this provision to include an unmarried Bahamian mother but not an unmarried Bahamian father.
14.15 In several cases, the courts have construed the reference to ‘parents’ in article 7 to be caught by the definition of ‘father’ in article...
To continue reading
Request your trial