Thomas Roe KC Instructed by Charles Russell Speechlys LLP (London) for the Appellant
lord lloyd-Jones:
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
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.”
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