SUBMISSION TO THE WORKING GROUP ON ARBITRARY DETENTION IN PREPARATION FOR ITS MISSION TO THE BAHAMAS
The Center for Justice and International Law (CEJIL), the Global Detention Project (GDP), and the Centre for Migration Observation and Social Development in the Caribbean (OBMICA) are pleased to provide the Working Group on Arbitrary Detention (WGAD) this joint submission in preparation for the WGAD’s visit to the Bahamas in November/December 2023. This submission concerns the deprivation of liberty of migrants, refugees, asylum seekers, stateless persons, and other at-risk non-citizens. It addresses situations that mainly fall within the scope of the WGAD’s Category IV of types of arbitrary detention: “when asylum seekers, refugees or migrants are subjected to prolonged administrative custody without the possibility of administrative or judicial review or remedy.”
To assist the WGAD in undertaking a comprehensive analysis of the situation concerning arbitrary deprivation of liberty in the Bahamas, this submission describes the migration context in the country and provides a summary of relevant migration-related policies and practices, as well as information about the conditions in the country’s sole dedicated immigration detention centre, the Carmichael Road Detention Centre.
1. CONTEXT AND KEY CONCERNS
The archipelago of the British Commonwealth of the Bahamas, located to the east of the straights separating Cuba and the U.S. state of Florida, has a population of approximately 400,000 people. The country is both a destination and transit territory for asylum seekers and migrants, mainly from Cuba and Haiti, as well as increasingly from African countries, like Nigeria. The country’s international migrant population numbers some 65,000, accounting for roughly 16 percent of its total population, with Haitians making up the largest single group.
The Bahamas’ immigration provisions, which are contained in its 1967 Immigration Act, are notably strict, providing criminal penalties, including incarceration, for infractions such as unauthorised entry and stay on its territory (Article 19.2). Additionally, any person who has been charged but not yet convicted of immigration-related violations is held in administrative immigration detention at the country’s Immigration Detention Centre, which is commonly referred to as Carmichael Road Detention Centre.
Importantly, the Working Group, in its Revised Deliberation 5 (paragraph 10), concludes that any form of criminal punishment for these types of immigration infractions “always exceed the legitimate interests of States.” Imprisonment on these grounds thus must be viewed as an arbitrary form of detention.
Statistics provided by the country’s immigration authority indicate that criminal-related immigration incarceration and pre-trial detention remain heavily used enforcement tools in the Bahamas. In 2022, 988 people were charged with immigration related offenses, the vast majority of which related to “illegal landing” (580 cases) or “overstaying” (241 cases). Of those cases, 640 resulted in criminal convictions. We urge the Working Group to address this extreme example of the arbitrary criminalisation of immigration infractions during its exchanges with officials in the Bahamas.
The Bahamas also imposes “mandatory” administrative detention measures for several reasons, including pre-trial detention for criminal immigration cases, detention for people under “repatriation” orders, and breaches related to invalid permits. The numbers of people “committed” to detention under the mandatory measures have increased considerably in recent years, rising from 2,173 in 2021 to 4,949 in 2022. In Revised Deliberation 5 (paragraph 10), the Working Group notes that detention must comply with the principle of proportionality and as such, automatic and/or mandatory detention in the context of migration is arbitrary. We thus urge the Working Group to discuss with officials during its visit the adoption of legal reforms that end mandatory detention measures and ensure that detention is only used as a last resort, for the shortest period possible, and based on an individual assessment of each case.
Children are also vulnerable to immigration detention in the Bahamas. In September 2023, media reports indicated that a 17-year-old Jamaican boy escaped from the Carmichael Detention Centre. This report is concerning as it indicates that children continue to be detained at the centre, in violation of the international prohibition on detention of children. We thus urge the Working Group to stress the prohibition of the immigration detention of children, as per paragraph 11 of the Revised Deliberation 5.
The conditions of detention at the Carmichael Road Detention Centre have also been repeatedly criticised due to persistent overcrowding, lack of sanitation and nutrition, and restrictions on communications with family. Similar criticisms have also been levelled at the Fox Hill Prison, where people convicted of immigration violations are incarcerated.
The arbitrary and punitive nature of the Bahamas’ immigration-related detention system has been the subject of important cases brought before the Inter-American Commission on Human Rights (IACHR) by the Center for Justice and International Law (CEJIL) concerning the arbitrary detention of Cuban and Haitian nationals. In its findings on these cases (“merits reports”), issued in 2021, the IACHR made a series of recommendations based on its findings that the Bahamas violated Articles I (life, liberty, and security), II (equality before the law), V, (protection of honor, personal reputation, and private and family life), VI (right to family and protection thereof), VII (right to protection of mothers and children), XVIII (fair trial), XXV (protection from arbitrary detention), and XXVIII (right to asylum) of the American Declaration on the Rights and Duties of Man.
However, the Bahamas has failed to respond in any substantive way to the merits report’s findings and recommendations. We hope that during its country visit the WGAD is able to verify migration detention conditions and request information from the State; and make similar concluding recommendations to the Bahamas regarding migration detention conditions and the relevant legal framework. Details about these findings are provided below. We urge the Working Group to carefully review the IACHR’s findings and to press the government of the Bahamas to implement all of the Commission’s recommendations.