Expulsion

Expulsion from Anguilla.  There is one other important exception to the fundamental right to freedom of movement in Anguilla.  We also have the Undesirable Persons Expulsion Act.  This permits the authorities to deport a non-belonger from the island without any judicial process whatsoever. 

Some persons believe that this provision is enforced in a way that is arbitrary and unjust.  If you have a friend who is a Minister, and you have fallen out with your boyfriend or girlfriend who was living in Anguilla with you, you may be able to get the Minister to speak to the Immigration Authorities and have the person picked up and put on a ferry out of Anguilla without even giving them a chance to pack.  I am told that this has been done several times in recent years.  If it is done in such an unjust and arbitrary way, the victim of abuse will always have the right to bring an action against the government.  The problem is that the persons who are ill-treated in this way are usually poor, and without the resources to enable them to obtain justice through the courts. 

Some of us believe that even foreigners should be brought to the court for some evidence of wrong-doing on their part, even if it is just over-staying their time, to be proved to the Magistrate, and for them only to be expellable on an order from the Magistrate.  The 2006 Constitutional and Electoral Reform Commission was lobbied to recommend this change.  However, to my regret, the Commission came to the conclusion that the power to expel undesirable persons summarily is essential for the protection of the wider society, and did not recommend any change.

Restrictions

Restrictions on the right to freedom of movement:  We are looking at our constitutionally protected right to freedom of movement throughout and into and out of Anguilla. Of course, as you will imagine, there are several exceptions.

Section 5(2) provides one.  It says that if we have been arrested and charged with an offence, the Magistrate in granting bail may lawfully restrict our freedom of movement.  She may even make it a condition of our bail that we surrender our passport. 

Such a restriction on our freedom of movement when we are out on bail is permitted by the Constitution.

The Constitution permits a law to be made in a whole raft of additional instances where it would be lawful for the government to restrict our movement.

The first instance is when, in time of war, restrictions may be necessary in the interests of defence.  So, in England, under the Defence of the Realm Act, people were restricted from travel during the Second World War.  West Indians, as part of the British Colonies of the time, also had restrictions on travel.  Our parents and grandparents had to get special visas to travel in and out of the islands.

Another example of government being permitted to restrict our travel occurs in time of a declaration of a state of emergency, for example, due to a hurricane or earthquake, or volcanic eruption.  Once a state of emergency is declared it will be lawful, if it is authorised by the relevant Act, for travel to be restricted.  This usually comes under the heading of restricting travel in the interests of public safety.  Those of us who have travelled to our sister island of Montserrat know that was done there.  The Montserratian government passed a law which permitted them to declare an exclusion zone over approximately half of the island.  Anyone going into the exclusion zone without permission is in breach of the law, and can be convicted and punished for doing so.  If the state of emergency is due to political or economic disturbances, it may again be necessary in the interests of public order to restrict travel.  The Constitution permits this to be done.

The third exception to the right to freedom of movement applies to people who are not belongers of Anguilla.  Non-belongers have no right to expect freedom to move into our out of Anguilla as they wish.  The Constitution permits the Anguilla House of Assembly to make laws that place restrictions on the movement or residence in Anguilla of persons who do not belong to Anguilla, or even of excluding them from Anguilla.  It is this constitutional exception that permits the government to enforce laws such as the Immigration Act, with work permit regulations and residence regulations.  These do not apply to Anguillians, but only to non-belongers.  

Movement

Protection of freedom of movement:  The fourth of our fundamental rights enshrined in the 1982 Anguilla Constitution is protection of freedom of movement.  It is found at section 5(1) of the Constitution, which reads:

No person shall be deprived of his freedom of movement, and, for the purposes of this section the said freedom means the right to move freely throughout Anguilla, the right to reside in any part of Anguilla, the right to enter Anguilla, the right to leave Anguilla, and immunity from expulsion from Anguilla.

This right is quite a complicated one.  To explain, the section says, first, that this freedom means the right to move freely throughout Anguilla.  This seems obvious to us now.  But, there was a time when labourers in England and slaves in Anguilla were obliged to reside on the farm or estate they were connected to.  It was a criminal offence, punishable with the most severe penalties, for us to be found outside of the farm or estate we were tied to.  Those days are long past, but this expression of this fundamental right serves to remind us of the long way we have come in recognition of human rights in the intervening centuries.

The section goes on to say that the right means the right to reside in any part of Anguilla.  This, again, seems obvious to us.  Who can stop me if I want to move from Island Harbour to live in West End?  But, it has not always been so.  In other countries, there are laws that prohibit certain types of people from living in certain places.  We find this type of provision in countries that have a poor record on recognising human rights.  Countries like Saudi Arabia, Sudan, North Korea, Israel, China and Burma, spring to mind. 

The explanatory words in the section remind us that this fundamental right extends to the right to enter Anguilla.  No law can be passed, say, by a West End government of Anguilla restricting the right of people from East End to enter Anguilla, if we could imagine such a thing being done.  Similarly, if a law were to be passed stating that any Anguillian travelling outside of Anguilla must pay a $100.00 tax to re-enter Anguilla, that law might very well be unconstitutional as hindering our right to re-enter Anguilla.

This constitutional freedom extends to our right freely to leave Anguilla.  Government cannot put any hindrances in our way to travel freely into and out of Anguilla.  It is that right that has forced governments to invent all kinds of travel documents to supplement the passport.  We have a right to a passport, once we qualify as a citizen, if it is necessary for us to travel.  If we cannot get a passport, then government must devise some other type of travel document.  If government tries to put too many barriers in our way of getting a passport, we may even be able to bring a constitutional action to oblige the Passport Office to issue a passport that they may be holding up.