Bahamas Immigration Act: Spousal Permits and the Rights of Women

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Rionda Godet

By Rionda Y. Godet, Partner, Halsbury Chambers Law Office

Nassau, Bahamas – Quite recently, amendments to the Immigration Act Chapter 191, section 30, Subsections 2, 3 and 4 were introduced as touching the distribution of spousal permits to spouses of Bahamian nationals.

As it applies today, for the fee of $350.00 (including processing fee), foreign spouses of Bahamian nationals may apply for a Resident Spouse Permit, which would permit them to legally live and work in The Bahamas, provided that they live with their Bahamian spouse and would have been married for less than five years, at the time of application.   This provision (implemented February 3rd 1997) was intended to reduce the number of applications for citizenship and to give foreign spouses of Bahamians a ‘trial period’ as it were, to confirm, as best as could happen, that the marriage was legitimate and not contrived out of convenience.

Fifteen years later, if the proposed amendments go through, then the spousal permit would allow for an indefinite period of duration.  What this means is that the current limitation of five years will no longer apply.  Of course, on one hand, huge breaths of relief will finally sound throughout our archipelago!  Many are the concerns of spouses who, after the fifth year are in ‘limbo’ land, awaiting further legitimization of their status.   After five years of marriage have passed, the expectation is that the non-Bahamian spouse would apply for citizenship or permanent residency.   For many who undertake this process, however, the experience is not an easy and straightforward one.  In many instances, prior to the expiration of the spousal permit, the application for permanent residence would be made, and while such application is pending consideration, a work permit with the attendant $1,000.00 has to be made until the permanent residency comes through – which, given the level of responsiveness at the Department of Immigration, can take an exceedingly long time.

Understandably, because of the benefits conferred to foreign nationals, there are concerns that the spousal permit has been, and may continue to be used as an instrument of convenience.   While our legislators have said that it is not their concern to go behind ‘the sheets’ of any relationship, what is being extolled is:

the hope that this change would relieve many of the processing issues, odious paperwork,  long lines and delays which accompany such applications for spouses who apply for a legal status in The Bahamas in order to reside and work here,  and

the notion of ensuring greater family stability and structure within our community, and more particularly, to homes where foreign spouses and their children abide.

Of course, there is another side to this new progressive move.   What really has a number of Bahamian women irked  is the fact that while the foreign spouses of Bahamian men would still be entitled, under the constitution, to apply for Bahamian citizenship without renouncing their citizenship of origin, the same does not apply for the spouses of Bahamian women.  In short, while the foreign spouse of a Bahamian man is constitutionally entitled to apply for citizenship, and the children of their marriage, whether born in The Bahamas or not – are automatically conferred Bahamian citizenship – the same provisions do not hold true for the foreign spouses of Bahamian women, or to their children born out of The Bahamas.  An anomaly indeed, especially when one considers that children born to an unwed Bahamian woman assumes her nationality, regardless of where that child is born.

This concern has been rallied for years and the hope of finally addressing this constitutional deficit has be heralded.  For many women, however, this notion yet again, comes a day late and a dollar short – but then again, the opportunity to remove this clear and blatant discrimination on the basis of gender was offered in the Referendum held February 27th 2002, but the vast majority of Bahamians who participated in this exercise voted against this.

Perhaps it was the notion of politics above self-interest, or perhaps the concern that Bahamians did not have sufficient time to absorb and consider all the issues.   At that time, the government of the day had put forward a Referendum which addressed five critical issues, including that of gender discrimination in the Constitution.   Perhaps, there were too many ‘tongs’ in the fire and it was altogether too much, too soon for the people to deal with.  Whatever it was, ten years later, the opportunity being lost to correct a constitutional deficit, children born to Bahamian mothers with foreign spouses are themselves considered ‘foreigners’.

In his address to Parliament, the current Minister of Foreign Affairs, the Honourable Fred Mitchell spoke of his government’s commitment to removing this constitutional anomaly which exists with regard to women and their ability to pass on their citizenship to their children, by amending the provisions of the Constitution and putting the matter again to the country by way of referendum.

Ultimately, what is desired is the equal opportunity for the spouses and children of Bahamian women to enjoy the same benefits conferred on the spouses and children of Bahamian men.   No doubt, in due course, we shall see, what opposition, if any, is raised to this renewed effort to address this gaping deficit.

The information stated above is not intended to be construed as legal advice in anyway.