Justice for Bahamian citizens: Privy Council strengthens citizenship rights for children born in The Bahamas to unmarried parents

Today, the Judicial Committee of the Privy Council (JCPC) handed down judgment in Attorney General (Appellant) v Shannon Tyreck Rolle and 4 others (Respondents) (The Bahamas) [2023] UKPC 13.

Dismissing the Attorney General’s appeal against the majority decision of the Court of Appeal, the judgment confirms that the Constitution of The Bahamas confers Bahamian citizenship on a person born in The Bahamas to (1) an unmarried woman who is not a citizen of The Bahamas and (2) a man who is.

The Privy Council has upheld the decisions of both Winder CJ in the Supreme Court and the Court of Appeal on the same issue.

This judgment paves the way for the Government to follow through with their intention to introduce legislation to allow Bahamian men and women to pass on citizenship in all circumstances, regardless of marital status.

Reasons for the Board’s Decision

Article 6 of the Constitution of the Bahamas states that “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.” (emphasis added)

The JCPC determined that the reference to “parents” in Article 6 is a common-sense reference to biological parents. There is no constitutional basis for restricting citizenship to “legitimate” children of Bahamian parents.

The position advanced by the Government in the appeal would have restricted citizenship of “illegitimate” children, somewhat arbitrarily based on which parent was a Bahamian citizen.

Dismissing the Attorney General’s submission, the Board held that the reading of Article 6 for which the Attorney General contends would lead to some anomalous and discriminatory  results.

It would have “the drastic consequence that no illegitimate child born in The Bahamas of Bahamian parents would have Bahamian citizenship by virtue of Article 6, notwithstanding the Bahamian citizenship of both parents.” and that the “suggested reading contended for by the Attorney General is cumbersome and faintly absurd.”

The Privy Council opted for a simple, ordinary-language interpretation of the text of the Constitution. The Board took the view that the meaning of Article 6 is clear as a matter of ordinary construction.

History of Proceedings

In 2017 the Respondents, the children of unmarried Bahamian fathers, brought constitutional proceedings seeking a ruling from the Supreme Court that they were rightfully citizens of The Bahamas. They claimed that they were entitled to Bahamian citizenship under Article 6 on the basis of having been born, after 9 July 1973, to a father who was a citizen of The Bahamas.

The effect of previous case law (K v Minister of Foreign Affairs [2007] 2 BHS No. 12) meant that if a person is born out of wedlock, they can only inherit citizenship through their mother.

At first instance, Winder J declined to follow K v Minister of Foreign Affairs, holding that either of his parents means either of his biological parents, irrespective of their marital status.

The first-instance decision was appealed to the Court of Appeal where the Attorney General argued that the first-instance judge had erred in law. The appeal was heard by five Justices of Appeal, rather than the usual three, owing to the importance of the issue.

On 21 June 2021, the Court of Appeal upheld the first-instance decision by a majority, dismissing the appeal and concluding that “every person born in The Bahamas after 9 July 1973 shall become a citizen of The Bahamas at the date of his birth if at that date either of his biological parents is a citizen of The Bahamas, irrespective of the marital status at the time of birth.”

Appealing to the Privy Council, The Attorney General argued that “…as a matter of ordinary construction, a strong and long-established presumption at common law requires the words of Article 6 to be read down so that the reference to “parents” is a reference to legitimate parents. He contended that the meaning to be given to ‘either of his parents’ in Article 6 of the Constitution is ‘either his mother or his father (but in the latter case only if he was married to the mother)’.”

Responding to the judgment Parvais Jabbar of Simons Muirhead and Burton said:

“Today’s judgment by the Privy Council impacts not only the lives and fundamental rights of the five appellants, but also addresses a broader issue of citizenship rights in The Bahamas for thousands of others. The ruling provides for a clear interpretation of Article 6 of the Constitution, leaving no room for uncertainty. The provisions in the Constitution should be interpreted generously and should reflect present-day values of an open and accepting society. Such an approach also accords with international human rights law.”

Link to the Judgment

The Legal Team

Acting in this case were Edward Fitzgerald KC and Daniella Waddoup (Doughty Street Chambers), Damian Gomez KC and Bridget Ward of the Bahamian Bar, instructed by Simons Muirhead Burton LLP.