St.Kitts-Nevis Citizenship by Marriage, Simple as ABC

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by Hon. Mark Brantley

We might not like the law but the law is the law and until changed it must be obeyed. In our legal system the Constitution is the highest or supreme law. Anything done which is contrary to the Constitution is unlawful. So what does the Constitution of St Kitts and Nevis say about obtaining citizenship by virtue of marriage?

“CHAPTER VIII / Section 92 – Registration
(1) The following persons shall, if they do not already possess citizenship, be entitled, upon making application, to be registered as citizens-

a) any person who is married to citizen;”

Section 92 uses the word “shall” which means it is mandatory and “entitled” meaning that such a person has a prima facie constitutional right and expectation to be registered as a citizen.

It follows that anyone who is married to a citizen of St Kitts and Nevis is entitled under the Constitution to be registered as a citizen of St Kitts and Nevis upon applying for such.

The Constitution says nothing about a waiting period of 3 years or 5 years or any waiting period TO APPLY. In other words someone who marries a citizen is entitled TO APPLY for citizenship of St Kitts Nevis at any time after that marriage.

But that does not mean that every such person will be granted citizenship.

The Constitution in the said section 92 has a caveat or proviso:

“Provided that if it is so provided by Parliament an application for registration as a citizen under this subsection may, in such circumstances as may be prescribed by Parliament in the interests of defence, public safety or public order, be refused by the Minister responsible for the matter in any case in which he is satisfied that there are reasonable grounds for refusing the application.”

The Parliament therefore can prescribe circumstances in which such an application can be refused by the Minister. Possible scenarios which come to my mind are if the person applying is a terrorist or if the marriage is a sham or otherwise unlawful.

Often we respond emotionally to issues when there is no need. No government can impose obligations which are not supported by law. Any such imposition would be unlawful and if challenged would be struck down by the Courts. Indeed recent decisions in our Court prove this most emphatically. A responsible government should not wait for the Court to strike down a policy if it obtains advice that that policy is unlawful.

The situation is no different to when the Labour Government some years ago required all applicants for citizenship (even those born in SKN) to submit an HIV test report as part of the application. This was eventually discontinued as being completely unlawful.

My advice is that the Constitution is now nearly 36 years old. Despite much chatter, no government has ever changed so much as a comma in that 1983 document. Perhaps it is time to revisit the provisions of the Constitution some 3 plus decades later to make sure it is better fit for purpose.

But until then the law is the law and until changed it must be obeyed. Simple as ABC.

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