Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories

Home , Belonger status, Cockburn Town, Migrant worker

Alejandro Morlachetti Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories Published by UNICEF Office for the Eastern Caribbean Area First Floor, UN House Marine Gardens, Hastings Christ Church Barbados Tel: (246) 467 6000 Fax: (246) 426 3812 Email: bridgetown@unicef.org Website: www.unicef.org/easterncaribbean

August 2017

This Study was commissioned by the UNICEF Office for the Eastern Caribbean Area.

The contents do not necessarily reflect the policies or views of the organizations. Contents

I. Introduction 4

II. Methodology and Structure 6

III. Nationality and Belongership in the UK Overseas Territories 8

I V. The Situation of Migrant Children in the Uk Overseas Territories 12

A. Anguilla 13

B. Montserrat 25

C. Turks and Caicos Islands 37

D. Virgin Islands 56

V. Conclusions 71

References 75

Annexes 79

1. Legislation by territory 79

2. Questionnaire 81

3. List of contact persons and meetings 83 1

Introduction

4 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories The issue of migration has gained increasing importance Children affected by international migration are on the political agendas of both the source and in a situation of double vulnerability: because they destination countries in the Caribbean, and a particular are children and because they are either migrants concern is the impact on children. This study looks themselves – regardless of whether they are alone or at the situation in the four United Kingdom Overseas with their families or they were born to migrant parents Territories (UKOTs) in the region: Anguilla, Montserrat, in countries of destination –or were left behind in the Turks and Caicos Islands and Virgin Islands. country of origin.

Migration represents an increasingly important Such children should have full access to all the same livelihood diversification strategy for many households rights as nationals in line with international human in the world’s poorest nations – for example, where rights principles. Unfortunately, recognition of their one member migrates in order to guarantee support fundamentals rights to basic services is complicated by a for the whole family (Committee of the Rights of the number of factors. This situation in the UKOTs is made Child 2012). Children migrate for diverse reasons and more complex by, for example, the considerable number in a variety of ways. The causes of their movement are of migrants from the Dominican Republic and Haiti not very different to those of adult migration: to seek entering irregularly and/or overstaying their visas and opportunities, whether economic or educational; to remaining undocumented in the territories. reunite with family members who had previously migrated; to move from their place of residence owing In this scenario it is extremely important to stimulate to gradual or sudden changes in the environment that debate in the territories about the current gaps and adversely affect their living conditions; and to flee from the need for the adoption of legislation, policies and the impact caused natural disasters, domestic abuse or programmes that can contribute to improving the extreme poverty. Although children usually travel with situation of migrant children in order to ensure proper, their parents, members of their extended family or other universal protection of the rights of children regardless adults, a growing and significant number are migrating of their migratory status. autonomously and unaccompanied.

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 5 2

Methodology and Structure

6 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories The main goal of this study is to analyse the situation The study has the following primary objectives: of children in the context of migration, including those children who are born in the territories and are  Explore and enhance understanding of the scale, stateless because there are restrictions on their access to nature and characteristics of inward migration a nationality. and disparities between migrant and non-migrant children The research methodology consisted of extensive desk  Review the legislative and policy framework to reviews of existing legislation, policies and regulations assess its compliance with international human of the territories. Additionally, the paper draws on rights standards secondary sources, such as reports on the situation of  Identify the main gaps, bottlenecks and barriers migrant children and demographic and migration data. to realizing the rights of children in the context of migration To assist in the preparation of the study, interviews were  Identify programmatic, policy and legislative conducted with a wide range of key informants from recommendations to ensure the realization of government agencies and with relevant professionals children’s rights, with a particular focus on the involved in programmes related, directly and indirectly, implementation of key international and regional to the rights of children and migrants and with migrants normative frameworks relevant to this area. themselves (see list in Annex 3). Questionnaires were sent to governments, associations and migrants1 The recommendations are based on accepted universal requesting detailed information about legislation, human rights standards on children’s rights in the regulations, statistics and practices. These documents context of migration, in particular international human served as the basis for the semi-structured interviews rights treaties and human rights mechanisms. with key stakeholders in each of the territories (see Annex 1 for the questionnaire).

1 No names are mentioned in this document and no list of those who were interviewed (migrants) is attached. Both measures aim to guarantee the confidentiality and anonymity of the opinions of migrants due to the sensitivity of the matter. Names included in the stories are fictional, but the facts and views are real.

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 7 3

Nationality and Belongership in the UK Overseas Territories

8 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories A. Nationality for children born in the UKOTs from migrant parents

A British Overseas Territories citizen (BOTC) holds a particular category of citizenship conferred by the British Nationality Act (BNA) of 1981 modified by the British Overseas Territories Act 2002 (BOTA).

The rules to become a BOTC are complex, and the options to obtain that status can be classified in three different categories: automatic acquisition, entitlements and discretional.

Acquisition of nationality by children (BNA & BOTA)

Becoming a Children born in the territory BOTC through Section 15 (1) (2) (5) automatic • Child born in a territory to a parent who is a BOTC or settled acquisition • Child found abandoned in a territory • Child adopted in a territory by a BOTC Children born outside the territory Section 16 • Acquisition by descent

Entitled to apply Children born in the territory for registration Section 15 as a BOTC Entitled to be registered as a BOTC in those cases where the child • (3) is born to a parent who is settled in a territory • (4) has spent the first 10 years of their life in the territory and the number of days absent from the territory does not exceed 90 in any of those years Children born outside the territory Section 17 (2) (5) • Entitled to application for registration made within 12 months from the date of birth and/ or made while s/he is a minor for a child born to a parent who is a BOTC by descent, and the BOTC parent should have had three years residence in the overseas territory prior to the child’s birth (this last requirement does not apply in case the child is stateless)

Discretional Section 17 (1) decisions by the • If while a person is under the age of 18 an application is made for his/her registration as a Governor BOTC the Governor may, if s/he thinks fit, cause him to be registered as such a citizen

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 9 Road to become a BOTC for a child born in the territories Section 15 (3) (4) BNA

A migrant can become a BOTC through the process records covering ages 5 to 10). Though not clear, it is of naturalization. The BNA requires adults to have very likely that a child who has been undocumented in resided in the overseas territory for five years,2 but all the islands is not able to benefit under Section 15 (4) of the territories have extended this requirement – from the BNA. eight years in Montserrat to 20 years in Virgin Islands. Basically a child without a parent who has become B. To belong or not to belong: That is the question settled and/or a BOTC has to wait for 10 years to submit an application to become a BOTC under Section 15 (4) There is a difference between BOTC and belonger status. of the BNA. Also s/he has to provide evidence of being The terms ‘belonger’ and ‘non-belonger’ are commonly in the island for the full first 10 years of his or her life used in all UKOTs to denote those who are ‘deemed to (immunization records covering ages 0 to 5 and school belong’ and ‘not deemed to belong’ to the respective territory. In general, to be born with belonger status a person must be born in a territory to a parent who holds 2 Schedule 1 of the BNA provides for a person’s naturalization as a BOTC under section 18(1) with the requirements ”…that he was in belonger status. The requirements for belonger status, the relevant territory at the beginning of the period of five years ending and the rights that it confers, vary from territory to with the date of the application, and that the number of days on which he was absent from that territory in that period does not exceed 450; and (b) territory, but in most cases the status of belonger can be that the number of days on which he was absent from that territory in the period of twelve months so ending does not exceed 90; and (c) that he was obtained by birth, descent or adoption, by being married not at any time in the period of twelve months so ending subject under the for some years to a belonger, by being the dependent immigration laws to any restriction on the period for which he might remain in that territory; and (d) that he was not at any time in the period of five child of someone who becomes a belonger by marriage years so ending in that territory in breach of the immigration laws”. Also that he is “of good character” and has a sufficient knowledge of the English or by being resident in a territory for a long period of language or any other language recognized for official purposes in the time. relevant territory.

10 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories The rules to acquire belonger status are difficult to under the constant control of immigration authorities understand, and there is a high level of political (Morlachetti 2015). discretion in the decision of granting it. Belonger status is important as it confers numerous rights, including Access to health, education, social services and social the right to vote, to hold elected office, to own real protection programmes is much more difficult for non- estate without the necessity for a licence, to reside in belongers, without distinction between children and that territory without immigration restrictions, to have adults. Therefore, the distinction between belongers preference for public employment and to freely accept and non-belongers poses a significant problem that in employment without the requirement of a work permit. particular affects the protection of migrant children and Non-belongers and those without permanent residence children born in the territories of non-belonger parents. status need to renew their work permit annually and are

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 11 4

The Situation of Migrant Children in the UK Overseas Territories

12 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories A. Anguilla The lack of ratification of some key treaties – such as the Convention on the Protection of the Rights of all 1. Overview Migrant Workers and Their Families, the Optional Introduction Protocol to the CRC on a communications procedure,5 Anguilla is one of the most northerly of the Leeward the International Covenant on Civil and Political Rights Islands in the Lesser Antilles. It consists of the main and the International Covenant on Economic, Social island of Anguilla itself, approximately 26 km (16 miles) and Cultural Rights – affects the rights of migrants, long by 5 km (3 miles) wide at its widest point, together including children.6 with a number of much smaller islands and cays with no permanent population. Moreover, it should be noted that Anguilla, like most Commonwealth States, takes the position that treaties Government is exercised through HM The Governor, are not justiciable before national courts. This is due appointed by the Sovereign, and an Executive Council to the common law doctrine that treaties do not form that has the general control and direction of government. part of domestic law and the view that international The Governor has reserved powers in respect of and national law are distinct legal orders. Therefore, for legislation and is responsible for external affairs, international law to be applicable in the national legal offshore finance, defence, internal security (including order, it must be received through domestic legislative the police force) and aspects of the public service. The measures that transform the international rule into a Executive Council consists of the Chief Minister, not national one. National legislation is thus a fundamental more than three other Ministers, the Attorney General instrument in implementing the rights recognized in and the Deputy Governor. The House of Assembly has the CRC and other human rights treaties and granting 12 members, and elections are held every five years. The equal access to basic social services for migrant children judiciary consists of the High Court, the Magistrates’ Court and the Eastern Caribbean Supreme Court Demographics (ECSC), which is the Court of Appeal. Final appeals are According to the 2011 census, the total population heard at the Judicial Committee of the Privy Council of Anguilla is 13,572. This is an approximately 13 per (JCPC) in London (Government of the United Kingdom cent increase over the 2001 census figure of 11,561. The 2014). migrant stock as a percentage of the population is very high, as 43.9 per cent of the population was not born The extension by the United Kingdom to Anguilla of there. Of the 5,954 who were born abroad, 1,118 persons the Convention on the Rights of the Child (CRC), the indicated that they arrived in Anguilla before the age of Convention on the Reduction of Statelessness and the 3 Discrimination against Women; Convention of 25 October 1980 on the Civil Convention relating to the Status of Stateless Persons Aspects of International Child Abduction; and European Convention for the is a fundamental starting point to uphold the rights Protection of Human Rights and Fundamental Freedoms 5 The Third Optional Protocol to the CRC on a communications procedure of migrant children and those children that may be establishes an international complaints procedure for violations of child rights stateless.4 contained in the CRC, the Optional Protocol to the CRC on the involvement of children in armed and the Optional Protocol to the CRC on the sale of children, child prostitution and child pornography. Before the adoption of 3 It should be noted that the United Kingdom has made the following the third protocol, the CRC was the only core international human rights reservation to the Convention relating to the Status of Stateless Persons: that treaty that did not have a communications procedure. it cannot undertake that effect will be given in the West Indies to articles 8, 9, 23, 24, 25, 26 and 31. 6 The following treaties have also not been extended by the United Kingdom to Anguilla: the Convention on the Rights of Persons with Disabilities; ILO 4 The following treaties have also been extended to Anguilla: International Convention No. 182 on the worst forms of child labour; ILO Convention No. Convention on the Elimination of all Forms of Racial Discrimination; 138 on the minimum age for admission to employment and work; and the Convention against Torture and Other Cruel, Inhuman or Degrading three Optional Protocols to the CRC. Treatment or Punishment; Convention on the Elimination of All Forms of

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 13 1 year and 4,724 indicated that they arrived in Anguilla after that age.

Persons migrating to Anguilla before the age of 1 Number of persons by place of birth – Census 2011 year – Census 2011 Frequency Percentage Frequency Percentage

Yes (born in Anguilla) 7,616 56.1 Yes 1,118 8.2 No 4,724 34.8 No (born abroad) 5,954 43.9 Not stated 112 .8 Not stated 2 .0 Total 5,954 100.0 Total 13,572 100.0 Source: Information provided by the Anguilla Statistics Department.

As the following graphic shows, a large proportion of children aged of 0–19 living in Anguilla were born in other countries.

Total population by age and sex, 2013

Source: United Nations et al. 2014.

14 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories Because information from the 2011 census is still under analysis, it has been difficult to obtain information about the nationalities that compose the 5,954 people in Anguilla who were born abroad. The individual questionnaire used in the Census included one question on ethnicity: “To which ethnic/racial group do(es) …… belong?” The options, from which respondents were allowed to choose one, were: African/Negro/Black, Amerindian/Carib, East Indian/Indian, Caucasian/ White, Chinese/Oriental, Hispanic, Syrian/Lebanese, Mixed, Other (specify) or NS (Not Stated). Preliminary information shows that 85.3 per cent of the population responded African/Negro/Black. A total of 668 individuals (4.9 per cent of the population) indicated that they were Hispanic, while 509 persons stated that they were Mixed.

Change 2011/2001 % of the total % of the total 2001 2011 Absolute Growth/ population population change decline %

African/Negro/Black 10,296 90.1% 11,573 85.3% 1,277 12.4%

Amerindian/Carib 19 0.2% 31 0.2% 12 63.2%

East Indian/Indian 93 0.8% 138 1.0% 45 48.4%

Caucasian/White 428 3.7% 431 3.2% 3 0.7%

Chinese/Oriental 21 0.2% 64 0.5% 43 204.8%

Hispanic n.a. n.a. 668 4.9% 668 n.a

Mixed 531 4.6% 509 3.8% -22 -4.1%

Other 40 0.3% 121 0.9% 81 202.5%

Not Stated (NS) 2 0.0% 37 0.3% 35 1,750.0%

TOTAL 11,430 100.0% 13,572 100.0% 2,142 18.7% n.a – not applicable Source: Anguilla Statistics Department 2012.

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 15 Migration 2. Birth registration, acquisition of nationality and According to the migration profile elaborated by United prevention of statelessness Nations et al. (2014), the top five countries of origin of migrants in Anguilla are St Kitts and Nevis, Dominican The registration and issuance of birth certificates for Republic, the United States, Jamaica and the US Virgin children born in Anguilla of non-belongers is not Islands. a problem and is common practice, according to information from the Judicial Department. Migrant stock by origin (2013)

Top five countries or areas of origin Total However, in spite of Anguilla’s ratification of the Convention relating to the Status of Stateless Persons, St Kitts and Nevis 1,049 it is complicated for children born there who do not Dominican Republic 836 have a parent who is a BOTC to either become a BOTC United States 649 themselves or obtain the nationality of their parent’s Jamaica 581 country of origin and hence prevent statelessness. US Virgin Islands 529

Total 3,644 The best scenario is for one of the parents to become a Source: United Nations et al. 2014 BOTC through the process of naturalization. However, the Government made this much harder in 2016 by adopting new regulations. Whereas previously a Even though the absolute migrant stock is comparatively migrant could apply after between five to seven years small in the Caribbean, it is higher as a percentage of (at the discretion of the Immigration Department), the the population than the world’s average – for some period has been extended to 10 years. This amendment countries, over 10 times higher (UNICEF Office of the has an enormous impact on the lives of the parents and Eastern Caribbean 2009). This is clearly the case with their children as it makes the road to citizenship harder. Anguilla, which registers one of the highest percentages It should be noted that this requirement is also higher of migrants among its population. than is required by the BNA for adults, which is five years residence in the overseas territory.7 Most migrants to Anguilla are people from other Caribbean countries who move as a strategy for economic A child without a parent who has become a BOTC survival, and most are parents migrating alone who plan has to wait for 10 years to submit an application under to bring their children later once they are established. Section 15 (4) of the BNA. In addition, s/he has to prove In some cases, applicants for work permits hide the fact with medical and school records that s/he has lived in they have children as they fear that this may affect the Anguilla consecutively for 10 years without any absence granting of the permit. This complicates later decisions for more than 90 days in any of those years. to bring their children into Anguilla as the Immigration Department may take into consideration that they have This means that a child may be without any nationality hidden information in past applications. for a long period if s/he does not obtain a nationality from her/his parents’ country of origin.

7 See footnote 2 above.

16 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories In some cases, children may be able to apply for the number of stateless persons, and to take measures to nationality of their parents but have to travel to their grant their nationality to a person born on their territory parents’ country and comply with a time of residence who would otherwise be stateless.8 to qualify. Anguilla may issue a temporary travel document to allow such travel, but besides the cost of 3. Non-discrimination the travel – which some parents cannot afford – there are also risks involved. If the child has to stay for more The Anguilla Constitution Order Chapter I - Section 1 than 90 days outside Anguilla, s/he may lose the chance states that every person is entitled to the fundamental to apply later to become a BOTC under Section 15 (4) rights and freedoms whatever their race, place of and have to request a discretional waiver under section origin, political opinions, colour, creed or sex. Non- 15 (7) of the BNA. In addition, the parents have to work discrimination and equality principles before the law are in Anguilla so as not to lose their residence status, and enshrined in the Constitution.9 Unfortunately, however, thus they may have to leave the child with their family the same Constitution allows for different treatment in the other country until s/he obtains the nationality. with respect to those persons who “do not belong” to This may mean weeks or even months of separation of Anguilla.10 This provision is discriminatory for all children from their parents and possible interruption of persons and, in particular, seriously affects child rights school attendance. (Morlachetti 2015).

Chapter VII Section 80 of the Constitution Order Ken is a work permit holder. His wife Sasha also lives calls for the establishment of an Anguilla Belonger in Anguilla as Ken’s dependent; both are Jamaican. Commission, which has been created by the Anguilla Having had a child while in Anguilla, they wanted a Belonger Commission Act of 2006 that sets the function passport for the child to travel. Although the child of the Commission and the procedure to grant belonger has the right to be registered as a Jamaican Citizen status to any person who is domiciled in Anguilla and and therefore obtain a passport, they were told they has been ordinarily resident in Anguilla for not less than had to go to Jamaica to commence the process. They 15 years,11 or is a spouse of such a person (belonger) and obtained a travel document and went to Jamaica, but the process for obtaining the passport took so long has been married to such a person for not less than three 12 that they had to leave the child (who was only a few years. months old) with a distant relative until the process was completed. This caused severe emotional trauma 8 See, among others, article 1(1) of the Convention on the Reduction of Statelessness; article 29 of the International Convention on the Protection to the parents, who could not understand why the of the Rights of All Migrant Workers and Members of their Families; article child could not be regarded as an Anguillian. 7(1) of the CRC; and article 24(3) of the International Covenant on Civil and Political Rights. 9 Section 13 provides that no law shall make any provision that is discriminatory either of itself or in its effect and no person shall be treated in a discriminatory manner by any person acting by virtue of any written To summarize, children born in Anguilla of non- law or in the performance of the functions of any public office or any public authority. Anguillan parents are mainly considered as temporary 10 The Anguilla Constitution Order Chapter I - Section 13 (4) provides that migrants, face restrictions in the enjoyment of their “Subsection (1) of this section shall not apply to any law so far as that law makes provision (a) with respect to persons who do not belong to Anguilla”. rights and can be stateless if they cannot obtain the 11 It should be noted that it is relatively easier to become a BOTC than obtain citizenship of the country of origin of their parents. belonger status. To be a belonger you need 15 years of residence, but you need a total of 11 year of residence (10 years + 1 year) to become a BOTC. It should be noted that States are obliged not to adopt 12 The Constitution regulates the belonger status that is assigned to those practices or laws relating to the granting of nationality, who are British Dependent Territories citizens; who were born in Anguilla, whose father or mother was born in Anguilla, whose father or mother became the application of which encourages an increase in the a British Dependent Territories citizen by virtue of having been adopted in

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 17 Non-belongers need a work permit and are under the 4. Family reunification permanent control of the immigration authorities, having to pay fees every year to maintain their status and During the interviews and focus groups, migrant parents that of their children. These fees amount to EC$1,800 identified delays, excessive requirements and lack of EC for adults and EC$900 for children annually.13 This clear and transparent procedures as some of their main is a problem for some families, and if they fail to pay issues. In addition, there are specific periods of time it compromises their temporary residence in Anguilla during the year when they can apply for reunification and may affect their children’s right to education as the that do not necessarily meet family needs. Immigration Department sends a list to the Education Department with the children whose parents have Another issue is that there are some specific requirements outstanding payments of their fees.14 to grant permission to join a family living in Anguilla. One condition is that the Education Department confirms that there is space available in schools Ann-Marie, a Jamaican, came to Anguilla on a according to the age and level of education of the child. visitor’s visa. She had two children, aged 7 and 13, The Immigration Department sends the information whom she left behind with her mother. She extended and request to the Education Departments asking her stay in Anguilla and eventually got employment for space. If the school system states that no space is in a shop. After a year, she was anxious to reunite available, then the reunification request is rejected. The with her children and so she sent for them. She level of knowledge of English is also considered. Some has to pay EC$1,800 per annum for each children. parents mentioned during the focus groups that they That amount becomes very burdensome. She earns were sending their children to learn English in a private EC$1,500 per month and has to pay rent of EC$800 institute in their country of origin to be able to apply and school fees of EC$100 for the younger child as for family reunification in the future. This is a particular well as meet the costs of food and other expenses, challenge for families from the Dominican Republic. causing them to live below poverty line.

Altagracia is from the Dominican Republic and has On a positive note, a new policy was approved in 2016 to been in Anguilla under a work permit and paying waive immigration fess to non- belonger children born all the fees due to the Immigration and Labour in Anguilla. Departments. She has two children: one is aged 6 and is in school in Anguilla; the other is 15 and, after several attempts to bring him to Anguilla, is still in the Dominican Republic attending school and learning English. All requests for permission to join her have been denied so far. She has seen him Anguilla;or to those domiciled in Anguilla, having been ordinarily resident in Anguilla for not less than 15 years, and having been granted belonger status only once in the last five years. by the Commission. 13 Migrants only get temporary permission to stay that must be renewed every year, and the fees must be paid for more than 10 years before they are able to get permanent residence and then one more year to apply for naturalization and become a BOTC. According to the Immigration The Immigration Department may also conduct Department, applications for extension of stay in 2016 (until November) were inspections to check the conditions of housing, financial made for approximately 1,731 adults and 497 children. 14 According the Education Department, they do not deny children’s right resources and the age of the child before making a final to school because of these lists but they confirmed in the interviews that they decision. With regard to this last point, according to receive lists of outstanding payments of immigration fees.

18 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories different sources there appears to be a tendency to be more flexible in granting permission in the case of small M J is from the Dominican Republic (DR) and came children as they are considered less problematic and to Anguilla to work after obtaining a work permit. more adaptable than adolescents. She had two children aged 7 and 9 years. She missed her children and so she borrowed money for them It should be noted that some restrictions on family to spend the summer holidays with her in Anguilla. reunification might imply a violation of the right to During this time, she realized how much they had family life and other contingent rights of children and grown while they were separated and thought that it adolescent migrants that depend on it. In this regard, would be in the best interests of the children to come the Parliamentary Assembly of the Council of Europe and live with her. She sought to find out how to enrol has stated that “the right to respect for family life is a them into school. At the public elementary schools, fundamental right belonging to everyone” and that she was told there was space but that they could not “reconstitution of the families of lawfully resident take the children unless there was approval from the migrants by means of family reunion strengthens the Immigration Department. She said there was a lot of policy of integration into the host society and is in the runaround whenever she went to the Immigration interest of social cohesion”.15 Department for the approval. In the meantime, the available spaces at the public schools ‘evaporated’. According to information provided by the Immigration She went to one of the private elementary schools Department, the total number of children granted and, although it had space and her children would permission to join their parents and attend school in not be a charge on the public purse, it took so long 2016 was 65, while 11 requests for family reunification to get approval that she returned the children to DR were denied. so they would not lose more school days. The family failed to re-unite and so the children remain in DR three years later.

It should be noted that there are visa exemptions to facilitate visits to Anguilla, and 839 persons benefited from this exemption during 2016 as at 9 December. Most visas were granted to nationals of the Dominican Republic (326) and Jamaica (155), which are also among the top five countries of origin. In particular, there was an increase during the month of July 2016 due to a visa exemption period that was granted to allow persons to visit family and friends for the Anguilla Summer Festival.

15 PACE 2004.

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 19 5. Access to fundamental social rights does not communicate the birth to the Registrar Office, this produces delays in the registration and issuance of Health a birth certificate. There are some limitations in the accessibility of health services, and therefore to the full enjoyment of the Education right to health, as there are some services that require In relation to the right to education, The Education Act, payments. The Health Services Fees and Charges 2012, establishes compulsory school attendance from Regulations (Revised Regulations of Anguilla) regulate the age of 5 to 17 years (Section 117). Discrimination is fees and accessibility to medical services. With regards forbidden on account of race, place of origin, political to fees, there are three different categories: (a) uninsured opinions, colour, creed, sex, and mental or physical resident; (b) insured resident and regional residents;16 disability (Section 120). Notwithstanding this clause, and (c) all others. the Education Act does discriminate as it provides that no tuition fee can be charged to a student of compulsory Resident children under 16 years of age are exempt school age, but tuition fees may be payable by those who from payment of fees and charges for dental services. are not belongers by a decision of the Minister.17 They pay 50 per cent of the prescribed health services fees and charges. However, a resident under the age of The Education Department does not register a migrant 16 years or who is a student in a school in Anguilla, child until two requirements are met: a letter from the who receives health services at the Princess Alexandra Immigration Department granting permission; and Hospital during school hours and/or is accompanied a receipt for payment of the immigration permit of to the hospital by a teacher, is exempt from payment EC$900. Therefore, payment of the fee is a condition for of prescribed health services fees, hospital out-patients access to education and may block this right for migrant fees and charges for some laboratory tests. children whose parents cannot afford to pay those fees.18

This means that, in general, children of non-residents Children born in Anguilla from migrant parents are no face higher fees to access health services as the regulations longer required to pay this fee and therefore only have to apply significantly different rates to residents and non- submit their birth certificate and proof of immunization. residents, leaving migrant children, or even children born in Anguilla but of irregular migrant parents, Social services unprotected by the law to have access to health services, Access to social services and social protection particularly if they cannot afford the fees charged at the programmes is regulated by the Social Protection hospital. Act, 2015. Benefits included in this Act are medical exemptions, funeral grants, public assistance in cases of It should be noted that, according to information from disabilities, childcare, utilities, house and educational the interviews and the Registrar Office, there are some assistance, food vouchers and foster care for children. cases where the hospital withholds information about the According to the Act, a person qualified to make an birth because of pending maternity fees. If the hospital 17 The Education Department indicated in the interview that no fees have 16 Regional residents are citizen or belongers to regional jurisdictions as been imposed on non-belongers so far. indicated in Schedule 1 of Health Services Fees and Charges Regulations: 18 The Convention against Discrimination in Education 1960 (extended to Antigua and Barbuda, The Bahamas, Barbados, Belize, Bermuda, Cayman Anguilla on 29 May 1964) mandates that States should ensure, by legislation Islands, Dominica, Dominican Republic, Grenada, Guyana, Haiti, Jamaica, where necessary, that there is no discrimination in the admission of pupils Montserrat, Saint Kitts and Nevis, Saint Lucia, Saint Martin, Saint Vincent to educational institutions and give foreign nationals resident within their and the Grenadines, Saint Maarten, Suriname, Trinidad and Tobago, Turks territory the same access to education as that given to their own nationals and Caicos Islands and Virgin Islands. (art. 3. {b};{e}).

20 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories application for a benefit under it must be a belonger, the Act was still to be determined. The Interpretation and spouse of a belonger or the guardian of a dependent who General Clauses Act, which would be applicable to all is a belonger (Section 10). legislation in Anguilla, does not define it. In the absence of a definition specific to the particular legislation, There is an option in Section 10 (d) for non-belongers there are two options: (a) amend the Social Protection who are resident in Anguilla for no less than 10 months Act to include a definition for resident/ residency for in any calendar year. The problem is that the Act does the purpose of this particular piece of legislation; or not provide a definition of ‘a resident’, and no regulations (b) amend the Interpretation and General Clauses Act of this Act have been published so far. Several questions to include a definition for residency to be applied to all needs answering: Who is considered to be a resident legislation (in the absence of different definition in the under this Act and/or Anguilla law in general? Where is particular Act/Regulations). the term of resident defined? How does a person prove themselves to be a resident? As things stand, non-belonger children and parents may not be entitled to apply for benefits under the Social According the Attorney-General’s chambers, the matter Protection Act, and it appears that the resident clause of residency at the time of drafting the Social Protection has not been used since the enactment of the Act.

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 21 6. Compliance with international human right standards and recommendations

HR standards/ CRC Main gaps Recommendations

Art 2. – Non-discrimination The definition of discrimination in the  Amend the Constitution to ensure equal Constitution does not cover all aspects treatment between national and migrant States Parties shall respect and ensure required by the CRC; in particular children by abolishing discrimination the rights to each child within their it allows for different treatment between belonger and non-belonger jurisdiction without discrimination with respect to those persons who children of any kind, irrespective of the child’s do not belong, including children,  Adopt/amend relevant legislation and or his or her parent’s national, ethnic and therefore the status of parents is policies to apply to all children without origin, birth or other status. transmitted to the child any distinction between national and migrant children

Art 3. – Best interests of the child There is no legislation in place that  Adopt procedures to grant the child the recognizes the best interests principle right to have his or her best interests General comment No. 14 (2013) on and/or policy/procedure for the assessed and taken into account as a the right of children to have his or determination of the best interests of primary consideration in all actions or her best interests taken as a primary the child in immigrations applications decisions that may affect him or her consideration in any decision that may and procedures in any migration procedure (family affect their rights reunification, extension of stay and The view of the child is not taken into residency, naturalizations, etc.) account in decision-making processes that may affect her/his rights

Art 7. – Registration after birth and Birth registration is granted to all  Remove any practice that acts as a barrier acquire a nationality children born in Anguilla without to obtaining birth certificates (e.g., due to distinction, but there are some pending hospital bills) Art. 8 – Preserve the child’s identity, restrictions in practice  Amend national legislation to including a nationality, name and automatically provide children born family relations, as recognized by law Very restrictive access to nationality, in Anguilla with a birth certificate and without unlawful interference including for children born in Anguilla residence status, granting them full access of migrant parents to rights on equal terms with national children

Art 9. – Right to family relations and Legislation/policies do not explicitly  Fully recognize the right to family to be with both parents recognize the principle of family reunification in case of parents and States Parties shall ensure that a child reunification and do not address children living separately shall not be separated from his/her family relations and reunification as an  Approve legislation and/or policies parents against his/her will entitlement that recognize family reunification as an entitlement and establish a clear Art. 10 – Family reunification Lack of clear procedures and guidelines and transparent procedure to reduce In accordance with the obligation under for family reunification discretion in the decisions taken by the article 9.1, applications by a child or Immigration Department his or her parents to enter or leave a High level of discretion in decisions  Include in the procedure full respect for State Party for the purpose of family taken by authorities that may result in due process of law (including the right to reunification shall be dealt with by arbitrary outcomes appeal decisions) States Parties in a positive, humane and  Disseminate information (Internet, etc.) expeditious manner Decisions denying permission for about the procedures and requisites to children to join their parent cannot be apply for family reunification appealed to a higher authority  Consider reducing/abolishing immigration fees to migrant children  Continue existing efforts to facilitate visa exemptions to foster family reunions in Anguilla

22 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories Art. 12 – Right to be heard and There is no policy/procedure providing  Adopt procedures granting the child the participate for the participation and/or hearing right to have his/her views heard and taken of children in migration cases where into account in all cases and decisions that General Comment No 12 (2009) on the decisions that may affect them and/or may affect him or her in any migration right of the child to be heard their parents are taken by immigration procedure (family reunification, extension authorities of stay and residency, naturalizations, etc.)

Art. 24 – Right to health Access (financial) to health services is  Abolish the imposition of higher fees for limited for children and adolescents medical services for children based on General comment No. 15 (2013) on the (there are some exemptions and their or their parent’s migratory status right of the child to the enjoyment of benefits for children of residents)  Assess the financial impact of including the highest attainable standard of health all children without distinction by their (art. 24) Restricted accessibility (financial) migratory status in the benefits under for migrant children of non-resident the Health Services Fees and Charges General comment No. 4 (2003) on parents Regulations (exemptions of some fees and adolescent health and development in 50 per cent in some medical services) the context of the CRC

Art. 26 – Right to social security and The Social Protection Act providing  Amend the Social Protection Act and/or social protection for social protection as a entitlement adopt regulations of the Act to include that include those resident for more a definition for resident/ residency for Art. 27 – Right to an adequate than 10 months as eligible beneficiaries; the purpose of this particular piece of standard of living, including material however, as the term ‘resident’ is not legislation; or amend the Interpretation assistance and support programmes, defined in the Act or in the general and General Clauses Act to include a particularly with regard to nutrition, legislation, the Act vis-à-vis migrants is definition for residency to be applied to clothing and housing not implemented in practice all legislation

Art. 28 – Right to education Registration for and access to education  Remove barriers (requirement of is conditioned on the immigration immigration permit and fees) and Convention against Discrimination in permit and payment of immigration facilitate and promote integration of Education 1960 fees migrant children in the education system (e.g., support to overcome language Some level of migratory controls is barriers) exercised by schools sending letters to  Cease the use of the education system as the Education Department identifying way to exercise pressure on parents to pay children with pending payment of immigration fees, jeopardizing the right migratory fees of children to education

Problems of accessibility due to the lack of space in schools restrict the possibility of family reunification, in particular for adolescents

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 23 Art. 7 – Nationality and statelessness Very restrictive and lengthy process to  Align Anguilla’s legislation and/ or be able to acquire nationality, including policies with the BNA on the time Convention relating to the Status of for children born in Anguilla of migrant required for resident migrants to apply for Stateless Persons parents naturalization (five years)  Consider amending the Constitution to facilitate acquisition of belonger status to children born in Anguilla, particularly to prevent statelessness  Make use of Section 17 (1) of the BNA that allows the Governor (at his/her discretion) to admit an application of a person who is under the age of 18 for registration as a BOTC, particularly to prevent statelessness  Consider reform of the BNA to automatically provide citizenship to children born in the Anguilla regardless of their parents’ status (this recommendation requires action by the United Kingdom)

Lack of ratification of fundamental The lack of ratification of some key Ratify (extend) the following fundamental human rights treaties treaties is a pending matter that affects treaties: the rights of migrants including  The Convention on the Protection children of the Rights of all Migrant Workers and Their Families  The Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children  The Optional Protocol to the CRC on a communications procedure  The International Covenant on Civil and Political Rights  The International Covenant on Economic, Social and Cultural Rights (This recommendation requires action by the United Kingdom)

General recommendations

24 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories B. Montserrat

1. Overview

Introduction Montserrat is one of the Leeward Islands in the Eastern Caribbean, occupying an area of 102 sq. km, entirely volcanic and very mountainous. In August 1995, the Soufriere Hills Volcano, after hundreds of years with no significant volcanic activity, began an eruptive period of ash and lava explosions. In 1996 and 1997, the disaster quickly forced the evacuation of the capital, Plymouth, and the surrounding residential areas, and finally – over a period lasting two years –from the entire southern part of the island. An area around the volcano, approximately two-thirds of the island, has been designated a Special Vulnerable Area and three areas along the coastline have been designated as Maritime Exclusion Zones is a fundamental starting point to upholding the rights (Government of the United Kingdom 2014). of migrant children and those children that may be stateless.20 Government is executed through a Governor appointed by the Crown, a Cabinet, which has the general control The lack of ratification of some key treaties, such as and direction of government, and a Legislative Assembly. the Convention on the Protection of the Rights of all The Governor retains responsibility for external affairs, Migrant Workers and their Families and the Optional defence, internal security including the police, aspects of Protocol to the CRC on a communications procedure,21 the public service and regulation of offshore finance. The affects the rights of all migrants, including children.22 Cabinet is chaired by the Governor and consists of the Premier and three other Ministers, as well as the Cabinet Furthermore, it should be noted that Montserrat, like Secretary, Financial Secretary, Attorney General and most Commonwealth States, takes the position that Deputy Governor. The Legislative Assembly consists of treaties are not justiciable before national courts. This nine elected members and the same ex-officio members as the Cabinet. The Deputy Governor may attend 23, 24, 25, 26 and 31. 20 The following other treaties have also been extended by the United but has no voting rights in the Legislative Assembly Kingdom to Montserrat: the International Convention on the Elimination of (Government of the United Kingdom 2014). all Forms of Racial Discrimination; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights; and the European Convention for the The extension by the United Kingdom to Montserrat of Protection of Human Rights and Fundamental Freedoms. the Convention on the Rights of the Child (CRC), the 21 See note 5 above. 22 The following treaties have also not been extended by the United Convention on the Reduction of Statelessness and the Kingdom to Montserrat: the Convention on the Elimination of All Forms Convention relating to the Status of Stateless Persons19 of Discrimination against Women; the Convention on the Rights of Persons with Disabilities; ILO Convention No. 182 on the worst forms of child labour; ILO Convention No. 138 on the minimum age for admission to employment 19 It should be noted that the United Kingdom has made the following and work; the Protocol to Prevent, Suppress and Punish Trafficking in Persons reservation to the Convention relating to the Status of Stateless Persons: that Especially Women and Children; and the other two Optional Protocols to the it cannot undertake that effect will be given in the West Indies to articles 8, 9, CRC.

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 25 is due to the common law doctrine that treaties do not The situation in Montserrat is different from the other form part of domestic law and the view that international territories as the volcanic eruption that occurred in and national law are distinct legal orders. Therefore, for 1995 completely distorted the island’s economy and international law to be applicable in the national legal demographics. When Plymouth was evacuated, around order, it must be received through domestic legislative 8,000 nationals migrated to Antigua and Barbuda, the measures that transform the international rule into a United Kingdom and the United States. Although sex- national one. National legislation is thus a fundamental disaggregated data are not available on the population instrument in implementing the rights recognized in the that left, it is generally thought that men ensured their CRC and other human rights treaties and granting equal wives and children migrated to safety. The population access to basic social services for migrant children. fell to fewer than 3,000 people (Oye Hesse-Bayne 2015).

Demographics and migration According to information from the migration profile According to the 2011 Census (Statistics Department elaborated by United Nations et al. (2014), the top Montserrat 2012), there were 4,922 persons residing countries of destination of migrants from Montserrat in Montserrat in that year. The child population was in 2013 were the United States, the United Kingdom, around 1,290 – or about 26 per cent of the overall Antigua and Barbuda, Canada and the US Virgin Islands. population (UNICEF 2016) – and 73 per cent of the private household population reported that they were Migrant stock by origin (2013)

Montserratians (Statistics Department 2012). Top five countries or areas of destination Total United States 5,585 Migrant stock by origin (2013) United Kingdom 5,171 Top five countries or areas of origin Total Antigua and Barbuda 1,110 Dominica 278 US Virgin Islands 904 Guyana 242 Canada 836 Saint Kitts and Nevis 117 Total 13,606 Antigua and Barbuda 115 Source: United Nations et al. 2014 United States 115 Total 867 2. Birth registration, acquisition of nationality and Source: United Nations et al. 2014 prevention of statelessness

There is a perception in Montserrat that the number of In common with the other Overseas Territories, the migrants from the Dominican Republic is increasing citizens of Montserrat are British Overseas Territories and may not be represented in the official statistics citizens (BOTC), as conferred by the British Nationality (UNICEF 2016). Act (BNA) 1981, and the full range of rights and entitlements is reserved for those who have belonger Migrants from other countries – in particular from other status. According to the Immigration Act, a person shall Caribbean countries – form part of the labour force. The be deemed to belong to Montserrat if they are a citizen data show that work-permit holders between 2012 and of a British Dependent Territory and acquired that status 2013 were predominately low-skilled male labourers by birth in Montserrat after 1 January 1983 to a parent followed by female domestic workers (Oye Hesse-Bayne who at the time of the birth was a citizen of a British 2015). Dependent Territory under the provisions of the BNA.

26 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories In spite of Montserrat’s ratification of the Convention relating to the Status of Stateless Persons, it is complicated Ruthie is from Haiti and has a child born in for children born in Montserrat who are not related to Montserrat. She arrived in Montserrat more than a parent who is a BOTC to obtain the nationality from 10 years ago as part of a group from Haiti being their country of origin; the actual options to become a trafficked by boat from Dominica to the US Virgin BOTC and prevent statelessness are very limited and Islands (a well-known smuggling route). When lengthy. passing through Montserrat’s coastal waters, the boat developed engine trouble and its captain The best scenario is for the migrant parent to become forced the migrants into the water and they had a BOTC through the process of naturalization. For to swim ashore in the middle of the night. Some adults, the BNA requires five years residence in the of these migrants – including Ruthie – stayed on, overseas territory,23 but the Government of Montserrat all leading productive lives. After eight years on requires eight years of consistent residence to qualify the island, she was granted permanent residence, for permanent residence and later register for a stepping-stone to naturalization. Normally, one naturalization.24 This is a long period of time but less year after obtaining permanent residence one than what is required in the other territories. During that can officially apply for naturalization as a BOTC, eight-year period, migrants are considered as temporary which greatly improves opportunities in the island. residents who have to renew their work permits every However, her application was refused “because year; if they lose their employment, they can be deported you don’t have passports [so] we cannot determine regardless of the amount of years under documented if you are of good character” (quote). At the same status. This puts an enormous burden and pressure on time, she has been unable to leave the island for all migrants, who are constantly afraid of losing their jobs these years because she did not have a passport. and being deported, which would make the path to Ruthie wants to take her children to Haiti to meet citizenship much harder for both parents and children. their grandparents but she cannot travel.

It should be noted that granting naturalization is still highly discretionary and involves several costs and fees, and some migrants just cannot afford these expenses.

23 See footnote 2 above. 24 A person has to live in Montserrat for a period of eight years before becoming eligible for permanent residency. Within that period, s/he must not absent from Montserrat for over 150 days consecutively. If the migrant is married to a citizen of Montserrat, the eight-years period is not applicable as the migrant becomes eligible by virtue of his/her marriage. After one year of permanent residency, the person is eligible to apply for naturalization. Once naturalized, s/he automatically qualifies for a BOTC passport

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 27 A child born in Montserrat whose parents are non- Act provides that the parents or parent or occupier of a Montserratians can obtain naturalization in his or house or nurse present at a birth are required to register her own right at the age of 10 after having lived there the birth of any child within 21 days of his or her birth. continuously since birth, or alternatively whenever The Act does not make any distinction between migrant their parent or parents qualify and apply for permanent parents and parents belonging to Montserrat. residence or naturalization and include their minor child or children as part of that application. This means If registration takes place after 21 days, then a late fee that a child may be without any nationality for a long must be paid. If it takes place three months or more after period of time if s/he does not obtain a nationality from the birth, the registration can only be done by a Justice her or his parents’ country of origin. of the Peace, who must be credibly informed about the circumstances surrounding the birth of pursuant to In the interviews, some government officials denied section 10 (1) of the Registration of Births and Deaths that there are stateless children in Montserrat, arguing Act. In the case of late registration the penalty may be that they can obtain the nationality of their parents. costly, particularly for families living in poverty, as the However, it is rather unfair to consider that children fee (not exceeding EC$200.00) is in the discretion of the born in Montserrat are temporary migrants as they have Registrar. not moved from anywhere or crossed any border. Even if the child can take the nationality of the parent(s) and 3. Non-discrimination be granted an emergency certificate to exit Montserrat, there are high costs involved that not all migrant parents The Montserrat Constitution Order 2010 provides that can afford. no law shall make any provision that is discriminatory either of itself or in its effect and no person shall be To summarize, children born in Montserrat of non- treated in a discriminatory manner by any person acting belonger parents are considered temporary migrants, by virtue of any written law or in the performance of the face restrictions in the enjoyment of their rights and functions of any public office or any public authority. The can be stateless if they cannot obtain the citizenship expression ‘discriminatory’ means affording different of the country of origin of their parents. It should treatment to different persons on any ground such as be remembered that States are obliged not to adopt sex, sexual orientation, race, colour, language, religion, practices or laws relating to the granting of nationality, political or other opinion, national or social origin, the application of which encourages an increase in the association with a national minority, property, birth or number of stateless persons and to take measures to other status. However, in spite of all these provisions, grant their nationality to a person born on their territory the Constitution allows for different treatment with who would otherwise be stateless.25 respect to those persons who are not Montserratians (belongers), including children.26 With regards to birth registration, registration and the issuance of birth certificates for children born in

Montserrat of non-belongers is usually not a problem. 26 Montserrat Constitution Order 2010 Section 16 (5) says that subsection (1) shall not apply to any law so far as that law makes provision with respect to Section 8 (1) of the Registration of Births and Deaths the entry into or exclusion from Montserrat, or the employment or engaging in any business or profession within Montserrat, of persons who are not Montserratians. The Immigration Act (Chapter 13.01) establishes that a 25 See, among others, article 1(1) of the Convention on the Reduction of person under the age of 18 shall be deemed to belong to Montserrat if they Statelessness; article 29 of the International Convention on the Protection are the child, stepchild or adopted child (having been adopted in a manner of the Rights of All Migrant Workers and Members of their Families; article recognized by the law of Montserrat) of a person who belongs or is deemed to 7(1) of the CRC; and article 24(3) of the International Covenant on Civil and belong to Montserrat. It also establishes that a person shall be deemed settled Political Rights. in Montserrat if s/he is the holder of a permit of permanent residence.

28 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 4. Family reunification The lack of family reunification programmes and restrictions on family reunification imply the violation According to the immigration authorities, there are not of the right to family life and other contingent rights formal programmes or benefits for family reunification of children and adolescent migrants that depend on it. in Montserrat; conditions for migrants to bring their Article 10 of the CRC requires that applications by a families over are rather ambiguous and decisions are child or his or her parents to enter or leave a State Party mainly discretional. for the purpose of family reunification shall be dealt with in a positive, humane and expeditious manner. Interviews suggest that if the migrant is coming to work Accordingly, the Parliamentary Assembly of the Council with the Government, provisions will be made in the of Europe has stated that, “the right to respect for family terms of employment to allow him/her to travel with life is a fundamental right belonging to everyone” and his or her spouse and children, but in the case of non- that “reconstitution of the families of lawfully resident government workers, such migrants will have to apply migrants by means of family reunion strengthens the to the chief immigration officer seeking permission. policy of integration into the host society and is in the Inquiries will be carried out to determine whether the interest of social cohesion”.27 immigrant can sufficiently sustain such family members. If a migrant worker wants to bring her or his children to 5. Access to fundamental social rights Montserrat, s/he must submit an application to the chief immigration officer outlining his/her intention and Education showing that s/he has a steady job, sufficient money and With regards to the right to education, the Montserrat proper and suitable accommodation. In addition, s/he Constitution Order 2010 provides that every child of the must show that the necessary arrangements are in place appropriate age, as provided by law, shall be entitled to for the child to enter school upon arrival. receive primary and secondary education, which shall be free. The Education Act states that compulsory school There are some rules and policies to admit a family attendance is from the age of 5 (order by Governor) member who wishes to visit a migrant in Montserrat for until the age of 16. No student can be refused admission a special occasion. Such a person must prove that s/he is on any discriminatory grounds including race, place of in possession of the following: origin, political opinions, colour, creed, sex or mental or physical disability (Section 28). (i) A valid passport (ii) A valid visa where applicable In order to be enrolled in school, certain documents (iii) A return ticket to his/her country of origin have to be provided: birth certificate, last school records/ (iv) Sufficient funds for his/ her upkeep during the stay transcripts and immunization card. In most cases, (v) Suitable accommodation if the migrant child/family do not have the required documentation, they are allowed to attend school The Immigration Act (Chapter 13.01) defines ‘dependant’ without being formally enrolled until the parents obtain in relation to another person as the child or step-child the missing documents. under the age of 16 of such person. It means that the right to family reunification will be limited in the best The lack of disaggregated data makes it difficult to scenario to a person under the age of 16 in spite of the know whether all children in Montserrat have access to definition of a child as under the age of 18 in the CRC.

27 PACE 2004.

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 29 education, but according to those interviewed for this with possibly reduced access, particularly if they cannot document, it is rare to encounter children who are not afford the fees charged at the hospital. enrolled in school due to the small population size.

It seems that the main problem is the poor achievement Annetta, who is from Jamaica, came to Montserrat in schools of non-English speakers as there are no several years ago and started her own business. She specialized teachers or programmes to deal with this came with one daughter and subsequently had a issue. The inability to speak the language leads to second. One of the daughters has a health problem frustration on the part of both students and teachers, needing specialized health treatment and, as they and misunderstandings between migrant and local are not still naturalized, they have had to go back children sometimes flare up into conflict. several times to Jamaica so that the girl can get free treatment as these kinds of treatment in Montserrat Health are expensive for non-nationals. The Public Health Act and Regulations govern the promotion and preservation of health and access to medical services. The Public Health Regulations dictate Social services and programmes the fees that should be paid for health services. The Social Welfare Act and the Social Welfare Regulations (Chapter 18.3 Revised edition 2013) set out the criteria It appears that children are exempt from paying for to qualify for government assistance. According to the most primary health services at district clinics and Regulations (Schedule 2), the legal status of citizen or the emergency department as the regulations indicate resident is an overriding qualification, and an applicant that children are entitled to diagnostic investigations, and the relevant members of that applicant’s household consultation and treatment free of charge (they define who do not fulfil this criteria are not eligible for support a child as a person from birth until the end of full-time regardless of any other circumstances. attendance at an institution offering primary, secondary or technical education, and who is normally domiciled Interviews have confirmed that the Social Services in Montserrat). Department only caters to Montserratians and people Interviews suggest, however, that secondary health with permanent residence and all others are referred care has a fee, including for children. According to the to the Red Cross. The Red Cross receives a subvention Public Health Regulations, there are different fees for from the Government to help migrant families; however, non-belongers, foreigners and Caribbean residents, the amount is minimal compared to the number of cases and non-Montserratians pay two times the rate set and expenditure incurred in addressing them. out for residents. A similar situation is imposed by the Community Health Services Regulations, which Currently Social Services is dealing with only two families establish that no fee shall be charged for community and one single person who are non-Montserratians, but health services provided to residents. ‘Foreigners’ and they all have permanent residence. In sum, families and ‘Caribbean residents’, however, have to pay fees for children, even those born in Montserrat, living for less community services. than eight years in the territory are not eligible for social benefits. The Social Welfare regulations and the narrow This may mean that children of non-Montserratians face interpretation of the definition of ‘resident’ under higher fees for health services, leaving migrant children the Social Welfare Act constitutes a serious breach of and children born in Montserrat of migrant parents Montserrat’s obligations under the CRC (arts. 2, 3, 19,

30 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 26 and 27) as it bars children from having access to is an authorization for the person to work in a specific social programmes and services based solely on their job, for a specific person or company.The intended migratory status and that of their parents. employer must first apply to the Labour Department on behalf of the migrant, outlining the nature of the job and terms and conditions. If successful, the permit is valid Two migrant families are receiving financial for one year and it is the responsibility of the employee support, according to the Social Welfare Act, as to renew it on the expiration date. This system gives they have permanent residence. They are already too much power to employers, promotes low salaries entitled to apply for naturalization, which may help and hides abuses committed against non-belonger to improve their economic situation and the well- employees (UNICEF 2016). It means that if a person being of the entire family, but they cannot afford the loses a job or wants to change employer, the entry costs and the Government will not waive the fees to permit automatically becomes null and void. Usually, a allow them to apply for what they are entitled to time span of three months is given to the migrant to seek after more than eight years living in Montserrat other employment and renew the work permit.

Not having a work permit is a very serious matter as it is 6. Immigration procedures in cases of detention, an offence under the Immigration Act (Section 21) that deportation and admission of children arriving can lead on summary conviction to a fine not exceeding undocumented $1,00028 or imprisonment for a term not exceeding six months or to both fine and imprisonment. In addition, The Immigration Department falls under the the Act also requires that people must show their work responsibility of the commissioner of police, who permit to any member of the police force when requested is referred to as the chief immigration officer. The so to do. If this is provided within 48 hours, the holder immigration officers are a combination of police and shall not be charged. Any person who fails to produce a customs officers referred to as Internal Border Security work permit as required is guilty of an offence and liable Unit; hence the police are also responsible for screening on summary conviction to a fine not exceeding $100 or all migrants in Montserrat to ensure that they fulfil all to imprisonment for a term not exceeding four months. the immigration requirements before being granted leave to land. According to immigration officials, once it is identified that a migrant has overstayed his/her visa, and no The Immigration Act (Chapter 13.01) and the reasonable explanation is given at the discretion of the Undesirable Person’s Expulsion Act (Chapter 13.09) immigration officer, the person will be informed that regulate admission, residence, permits, visas and his/her visa extension will not be extended and must deportations. The Immigration Act establishes that leave Montserrat between specified times. Failure to do any person not belonging to Montserrat who is not in so means s/he will be deemed a prohibited immigrant possession of sufficient means to support himself and and deportation proceedings will follow. If within the his dependants is a prohibited immigrant. specified times s/he remains in the island, s/he will be arrested as an illegal immigrant and taken to court There are certain requirements for persons to be admitted to Montserrat. Entry permits are mainly 28 The Labour Code Section 125 (1) establishes that a person who is not related to work permits, and most people are considered a Montserratian shall not engage in employment or self-employment in temporary residents while employed. A work permit Montserrat unless s/he has a work permit, and a person who contravenes this commits an offence and is liable on conviction to a fine of EC$5,000.

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 31 for breach of the Immigration Act, and deportation There are no specific legislations and/or policies and/ proceedings follow. The court may grant bail or remand or procedures that recognize explicitly the right to the person until the completion of the process. If the participation and provide that every child is able to person is granted bail, then the chief immigration officer express her or his views “in all matters affecting” them will authorize the granting of a temporary visa up to (art. 12 CRC). The right to be heard is granted neither in every court hearing date. judicial and administrative proceedings that may result in the deportation of the child and/or his or her parents According to the authorities, the immigration nor in the procedure for the determination of whether department does not detain children. In the case of deportation may be against the best interests of the child the detention of one or both parents, arrangements are (art. 3 CRC). made for the child to remain with the other parent/a family member or to be sent to child protection services. As pointed out by the United Nations High Commissioner for Human Rights (Bustamante 2009), In Montserrat the rules and practices related to family all authorities and institutions that come into contact reunifications, temporary visits, the acquisition of with children in the context of migration are required temporary and permanent residence, naturalization to determine that their actions are primarily concerned and belongership status are all complicated, and there with protecting the interests of the individual child. is no appropriate dissemination of information about This principle should override all others, including entitlements and requirements to apply for any of these conflicting provisions of migration policy should these options. Rather, most of the decisions are left at the arise (art. 3 CRC; Committee of the Rights of the Child discretion of the authorities, and denied applications are 2013; OHCHR 2010). not usually accompanied by an explanation.

32 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 7. Compliance with international human right standards and recommendations

HR standards/CRC Main gaps Recommendations

Art. 2 – Non-discrimination The definition of discrimination does not  Amend the Constitution to at least recognize cover all aspects required by the CRC; equal treatment between national and States Parties shall respect and in particular, the Constitution allows for migrant children, abolishing discrimination ensure the rights of each child different treatment with respect to those between belonger and non-belonger children within their jurisdiction without persons who do not belong, including discrimination of any kind, children, and therefore the status of  Adopt/amend legislation and policies that irrespective of the child’s or his parents is transmitted to the child apply to all children without any distinction or her parent’s nationality, ethnic between national and migrant children origin, birth or other status.

Art. 3 – Best interests of the There is no legislation in place that  Adopt procedures granting the child child recognizes the best interests principle and/ the right to have his or her best interests or policy/procedure for the determination assessed and taken into account as a primary General Comment No. 14 (2013) of the best interests of the child in consideration in all actions or decisions on the right of children to have immigrations applications and procedures that may affect him or her in any migration their best interests taken as a procedure (family reunification, extension of primary consideration in any The view of the child is not taken into stay and residency, naturalisations, etc.) decision that may affect their account in decision-making processes (in rights particular immigration procedures) that may affect their rights

Art. 7 – Registration after birth Birth registration is granted to most  Amend national legislation to automatically and acquire a nationality children born in the Montserrat without provide children born in Montserrat with distinction permanent residence status, granting them Art. 8 – Preserve the child’s full access to rights on equal terms with identity, including a nationality, Very restrictive access to nationality for national children name and family relations, migrant children, including for those born as recognized by law without in Montserrat unlawful interference

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 33 Art. 9 – Right to family relations Legislation/policies do not explicitly  Fully recognize the right to family and to be with both parents recognize the principle of family reunification in case of parents and children States Parties shall ensure that a reunification and do not address living separately child shall not be separated from family relations and reunification as an his or her parents against his/her entitlement  Approve legislation and/or policies that will recognize family reunification as an Lack of clear procedures and guidelines entitlement and establish a clear and Art. 10 – Family reunification for family reunification transparent procedure to reduce discretion In accordance with the obligation in the decisions taken by the Immigration under art. 9.1, applications by High level of discretion in decisions taken Department a child or his or her parents to by immigration authorities that may result enter or leave a State Party for the in arbitrary decisions regarding family  Include in the procedure clear information purpose of family reunification reunification and visas and full respect for due process of law shall be dealt with by States (including the right to appeal decisions) Parties in a positive, humane and expeditious manner  Disseminate information (Internet, etc.) about the procedures and requisites to apply for family reunification

Art. 12 – Right to be heard and There is no policy/procedure providing  Adopt procedures granting the child the participate for the participation and/or hearing right to have his or her views heard and of children in migration cases where taken into account in all cases and decisions General Comment No 12 (2009) decisions that may affect children and/ that may affect him or her in any migration on the right of the child to be or their parents are taken by immigration procedure (family reunification, extension of heard authorities stay and residency, naturalization, etc.)

 Provide information to migrant children that is adapted to their age and cultural conditions, using simple and clear language and the support of an interpreter, if necessary

Art. 24 – Right to health There are fees involved to access some  Abolish imposition of higher fees for health services and those fees are medical services for children based on their General comment No. 15 (2013) substantially higher for migrant families migratory status and/or their parent’s status on the right of the child to and children the enjoyment of the highest  Assess the financial impact of granting attainable standard of health (art. access to all children, regardless of their 24) migratory status and/or their parent’s status, to the health system General comment No. 4 (2003) on adolescent health and  Adopt a proactive approach to identify development in the context of the migrant children in need of health care, CRC immunizations, etc.

Art. 26 – Right to social security Very restricted interpretation of the Social  Repeal/amend the Social Welfare and social protection Welfare Act and Regulations, excluding Regulations to make it applicable to all migrant families and migrant children children regardless of their migratory status Art. 27 – Right to an adequate and/or children born in Montserrat of and/or of their parents. standard of living, including migrant parents from social programmes material assistance and support and benefits  Adopt a proactive approach to identify programmes, particularly with migrant children in need of social services regard to nutrition, clothing and housing

34 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories Art. 28 – Right to education There are not ESL programmes available  Remove any barriers and facilitate and to support children from non-English- promote integration of migrant children in Convention against speaking countries the education system Discrimination in Education 1960  Implement ESL programmes in primary and secondary schools and reinforce initiatives to assist children from non-English-speaking countries

Art. 7 – Nationality and Very restrictive and lengthy process to  Align legislation and/ or policies with the statelessness be able to acquire nationality, including BNA about the time required for resident for children born of migrant parents in migrants to apply for naturalization (five Convention relating to the Montserrat years) Status of Stateless Persons  Consider amending legislation to facilitate acquisition of permanent residency/ BOTC/ belongership status to children born in Montserrat, particularly to prevent statelessness

 Consider reform of the BNA to automatically provide citizenship to children born in Montserrat regardless of their parents’ status (This recommendation requires action by the United Kingdom)

Lack of ratification of The lack of ratification of some key Ratify (extend) the following fundamental fundamental human rights treaties is a pending matter that affects the treaties: treaties rights of migrants including children  Convention on the Protection of the Rights of all Migrant Workers and Their Families  Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children;  Optional Protocol to the CRC on the sale of children, child prostitution and child pornography  Optional Protocol to the CRC on a communications procedure  Convention on the Elimination of All Forms of Discrimination against Women (This recommendation requires action by the United Kingdom)

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 35 General recommendations

 Incorporate a child rights perspective in migration laws, policies and programmes, together with a rights-based approach, ensuring both that the particular needs and rights of children are expressly included and that all human rights are recognized for all migrant children, irrespective of age, sex, nationality or migration status  Ensure that a child protection perspective prevails over migration and security concerns  Ensure the protection of the child in all migration-related circumstances, regardless of the immigration status of the child or his/ her family, and take into account the best interests of the child as a primary consideration in all migration-related initiatives and actions concerning children at all levels  Establish effective procedures to assess, in a child-friendly manner, the risks children would face if returned to their country of origin or any risk of ‘chain refoulement’ (i.e., removal to third countries in which the person would be at risk of refoulement), including access to asylum procedures and procedures to establish whether they have been subject to trafficking and other serious human rights violations.  Establish favourable family reunification policies that enable children left behind to join their parents, thereby avoiding children being permanently separated from their parents  Avoid migration-related detention of parents with children, adopting alternative measures for the entire family and developing policies for placing the entire family in alternative locations  Comply with the consular notification and access obligations set forth in the Vienna Convention on Consular Relations so that States may provide child-friendly consular assistance, as appropriate, including legal assistance  Train all state officials and personnel who come into contact with children in the context of migration, including border control authorities and personnel, to apply a child-sensitive and rights-based approach that takes account of the specific vulnerability, needs and rights of children on the move; the principles of the CRC should be an integral part of this training  Prioritize the collection of age- and gender-disaggregated data across all government departments on the human rights situation of children in the context of migration to make migrant children visible in Montserrat  Undertake a publicity campaign to ensure that migrants accessing any government service are treated with respect and to promote understanding  Strengthen cooperation mechanisms that foster joint cooperation, dialogue and consensus with countries of origin.

36 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories C. Turks and Caicos Islands

1. Overview

Turks and Caicos Islands (TCI) is located south-east of the Bahamas and around 90 miles north of Haiti and comprises some 40 islands and cays in an archipelago divided into two groups: the Turks Islands (to the east of the Turks Island Passage) and the Caicos Islands (to the west of the Passage).

Six islands are permanently inhabited: Grand Turk – the capital, Salt Cay, South Caicos, Middle Caicos, North Caicos and Providenciales.

TCI is a British Overseas Territory, with a Governor and a ministerial system of government. The new Constitution came into force in July 2011 through The Turks and Caicos Islands Constitution Order 2011. The Governor remains responsible for external affairs, defence, internal security including the police force, and Convention relating to the Status of Stateless Persons29 some public service matters. The legal system, based on is a fundamental starting point to uphold the rights English common law, includes a Supreme Court and of migrant children and those children that may be a Court of Appeal, and has provision for appeal to the stateless.30 Privy Council in London (Government of the United Kingdom 2014). The lack of ratification of some key treaties such as the Convention on the Protection of the Rights of all There is a Human Rights Commission that, according Migrant Workers and Their Families and the Optional Section 97 of the 2011 Constitution, is an institution Protocol to the CRC on a communications procedure31 protecting good governance in TCI. It is composed of are pending matters that affect the rights of migrants, five members and has a broad mandate to protect human including children.32 rights within the territory. The Commission submits an annual report to the House of Assembly on all its 29 It should be noted that the United Kingdom has made the following reservation to the Convention relating to the Status of Stateless Persons: that activities, including main matters and actions taken, it cannot undertake that effect will be given in the West Indies to articles 8, 9, along with the recommendations of the Commission in 23, 24, 25, 26 and 31. 30 The following treaties have also been extended by the United Kingdom to respect of each matter. TCI: the International Convention on the Elimination of all Forms of Racial Discrimination; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the International Covenant on The extension by the United Kingdom to TCI of the Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; the Convention on the Elimination of All Forms of Convention on the Rights of the Child (CRC), the Discrimination against Women; and the European Convention for the Convention on the Reduction of Statelessness and the Protection of Human Rights and Fundamental Freedoms. 31See note 5 above. 32 The following treaties have also not been extended by the United Kingdom to TCI: the Convention on the Rights of Persons with Disabilities;

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 37 Furthermore, it should be noted that TCI, like most is concentrated and where the jobs have been created Commonwealth States, takes the position that treaties (Halcrow Group Limited 2014). are not justiciable before national courts. This is due to the common law doctrine that treaties do not form Migration movements have been by far the main part of domestic law and the view that international components of the population growth in the latest and national law are distinct legal orders. Therefore, for decades. From 2001 to 2012, there was an increase international law to be applicable in the national legal from 19,886 to 31,458 despite only 3,980 births during order, it must be received through domestic legislative that period.35 Moreover, just over eight out of every 10 measures that transform the international rule into a immigrants (82 per cent) were between the ages of 15 national one. National legislation is thus a fundamental and 44 years (ECLAC 2016). Among non-belongers, instrument in implementing the rights recognized in the share of the population under 15 years old fell from the CRC and other human rights treaties and granting approximately 23 per cent for males and 28 per cent for equal access to basic social services for migrant children females in 2001 to 15 per cent and 16 per cent for males and females, respectively, in 2012. The working age 2. The challenge of unprecedented population growth group of persons 15–64 years old accounted for 83 per cent of the total population at the time of the 2012 census (ibid.). The total population of TCI is 37,910 (estimated in The following tables show how the belonger population 2016).33 The territory has experienced unprecedented changed from being a majority group in 1990 to almost population growth over the last 20 years, largely due to matching the Haitian population group in 2012 and less the immigration of people from neighbouring countries than all other nationalities together. seeking employment created by the development of tourism (ECLAC 2016).34 Top countries of origin by number of population

Between 1980 and 2012, the population of the islands Country of citizenship 2012 2001 1990 increased four-fold from approximately 7,400 to 31,500. TCI 12,239 10,335 7,901 Since 1990, average annual immigration has moved from 255 to around 800. The focus of this growth has Haiti 10,928 5,027 2,129 been the island of Providenciales, which accounted Dominican Republic 1,541 693 277 for 42 per cent of the population of TCI in 1990 with United States 874 695 216 4,821 persons. By 2012, the share had increased to 75 48 per cent with a population of 23,769 (ECLAC 2016). Bahamas 551 356 In contrast, with the exception of Grand Turk where there has been steady, if low, growth, the population in Source: Strategic Policy and Planning Department, ‘Total the other islands has declined or stagnated. The reason Population and Population Percentage Breakdown’, 2012. is simple: Providenciales is where the tourist industry

ILO Convention No. 182 on the worst forms of child labour; ILO Convention No. 138 on the minimum age for admission to employment and work; the Optional Protocol to the CRC on the sale of children, child prostitution and child pornography; and the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children. 33 Strategic Policy and Planning Department, http://www.sppdtci.com 34 According to ECLAC, there are no migration statistics for TCI and all the information regarding migration comes from the residual after accounting 35 Strategic Policy and Planning Department, ‘Summary of Population for births and deaths in the intercensal periods. Movements’, 2012.

38 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories Top countries of origin by percentage of population Undoubtedly, the rapid change in the population growth in a small territory presents many social, economic and political challenges. Country of citizenship 2012 2001 1990

TCI 38.9 52 68.9 Haitian migration

Haiti 34.7 25.3 18.6 The largest migrant group are the Haitians followed by the Dominican Republicans. Unlike other groups, Dominican Republic 4.9 3.5 2.4 where there has been a high turnover, 45 per cent of the United States 2.8 3.5 1.9 current Haitian population was resident in 2001 and 0,4 Bahamas 1.8 1.8 virtually all those resident in 2001 are still in TCI. Over 80 per cent of Haitians aged under 15 years were born in TCI as were over 30 per cent of those aged 15 to 24. Yet, Source: Strategic Policy and Planning Department, ‘Total Population and Population Percentage Breakdown’, 2012. although the Haitian population in TCI exhibits a high degree of permanence, only around 20 per cent have According to the current projections, the population of permanent right of residence ( Halcrow Group Limited TCI will increase continuously for the 15-year projection 2014). period. A high projection suggests a population of 61,457 by 2027, while a medium projection shows a total Haitian migrants – and in much less proportion of 55,498 (ECLAC 2016). Net migration accounts for 68 Dominican Republic migrants – quickly filled the labour per cent of this projected increase, with natural change demand for lower-level skills in the dramatic growth of (births less deaths) accounting for the remaining 32 per tourism and financial services and the accompanying cent (ibid.). construction boom in TCI from the early 1990s. The The large volume of immigration into TCI beginning continued growth of the economy depended on access around 1990 has had a considerable impact on the to labour, but once the immigration of Haitians had demographic profile of the islands. There is a male- begun, the flow continued in excess of the demand, dominated movement of persons in the middle age range especially since the international economic downturn of of 15–44 years. This suggests that many immigrants 2008 (Thomas Hope 2011). are not moving with families. The low percentage of the population at the youngest ages also offers some The intention to find work has been by far the most evidence of this (ECLAC 2016). important priority in the decision of migrants from Haitian and Dominican Republic, although some Official migration numbers in TCI do not capture migrate to join family who have already settled in TCI. As those who live in the territory irregularly. Proximity to Thomas Hope (2011) points out, the Haitian population Hispaniola makes it an attractive destination for those in TCI is socially and economically heterogeneous, trying to escape from harsh social and economic realities including the highly educated, economically secure and in their countries of origin. Anecdotal evidence indicates upwardly mobile. However, the dominant picture is one that many stakeholders estimate the total population of many who were underemployed or unemployed. of TCI to be much larger that the official numbers. However, accurate numbers for irregular immigrants Poverty among the Haitian population is 35 per cent, are hard to collect for obvious reasons (UNICEF 2016) much higher than the national average of 22 per cent. The poverty rate for belongers is 18 per cent, slightly below the national average. Haitians account for over

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 39 half (56 per cent) of the poor population, with belongers accounting for a third. Compared to 1999, poverty rates Belongers perceive that non-Belongers are securing for all groups have decreased, apart from the Haitians employment because they are prepared to work for less money where there has been little change (Halcrow Group and are thus ‘preferred’ by employers. They also feel threatened Limited 2014). In addition, around three quarters of by the increasing numbers of migrants, who now constitute the defective houses are occupied by Haitians. Many of majority of the population – feelings which are exacerbated by these are low quality, privately rented properties, but continued illegal migration from Haiti. others are illegal constructions, mostly on crown land on Providenciales (e.g., Dockyard and Five Cays) (ibid.). These feelings were noted in the 2000 CPA, but the crisis has served to heighten them. Resentment also results from In general, there is a high level of stigmatization of the the shortage of places in some government schools in Haitian population. In most interviews with government Providenciales, the perception that crime in TCI is primarily officials, the recurrent word is ‘protection’ (in the sense caused by migrants, and the growth of illegal informal of protecting ourselves from them). There is a feeling settlements on Provo. of being outnumbered and the need to protect the TCI culture and sense of identity. Another recurrent saying For Haitians (and other migrant groups, to a lesser extent), the is that “they have rights, but what about us?” This divide feelings of insecurity and mistrust result from a more diverse between ‘them’ and ‘us’ is very evident in society. range of factors, the most important of which are: • Uncertain rights to permanent residency and The best description of the situation is provided by the citizenship for those resident in TCI for a long time Government in the 2012 Country Poverty Assessment and their children born in TCI. (see box). • Discourteous treatment when dealing with government agencies. • Often sub-standard housing conditions. • Exploitation by employers and agencies providing work permits. • Discriminatory practices relating to education, e.g. admissions and within schools, BUT all migrant children have a right to education and can gain admission to schools. • For those who are on their own, feelings of guilt towards their families who made financial sacrifices for them to come to TCI, but who they cannot support on the incomes they currently make.

Source: Halcrow Group Limited 2014.

Haitians ultimately became the focus of blame for most of the problems on the islands, and festering negative feelings and resentment on the part of Turks Islanders are fuelled by the intermittent arrival of boats

40 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories (small speedboats and larger sloops) transporting Basically a child without a parent who has become a undocumented Haitians attempting, with mixed BOTC has to wait for 10 years to submit an application success, to enter TCI illegally. An additional problem under Section 15 (4) of the BNA. Also s/he has to is that nobody really knows how many undocumented provide evidence of being in the island for the full first 10 migrants live in the territory. In interviews with both years of her or his life (immunisation records covering government officials and organizations that work with ages 0 to 5 and school records covering ages 5 to 10). migrants, numbers quoted are anything from 2,000 to It is not clear, but it is likely that a child who has been 10,000. As an average, the majority opt for between undocumented in the islands will not be able to benefit 5,000 and 7,000 migrants living undocumented. under Section 15 (4) of the BNA.

Although the irregular status in some cases is due to This means that a child may be without any nationality initial illegal entry into TCI, it seems the majority of for a long period of time if s/he does not obtain a migrants had previously been documented but were no nationality from her or his parents’ country of origin. longer in possession of a valid work permit (renewable annually) because they were at the time without During the interviews, most government officials employment. denied that there were stateless children in TCI, arguing that Haitian children could obtain the nationality of 3. Birth registration, acquisition of nationality and their parents. However, the migration law in TCI, in prevention of statelessness combination with the migration status of parents and the laws of the countries from which they come, creates In spite of TCI’s ratification of the Convention relating a situation where children might be stateless – i.e., they to the Status of Stateless Persons, it is a complex might belong to a certain country but not have the legal process for children born in TCI of migrant parents to documents to prove it. For example, children born of either become a BOTC or obtain the nationality from Haitian parents who are illegally residing in TCI do not their parents’ country of origin – and hence prevent have TCI nationality or a birth certificate and, at the statelessness. A resident migrant can become a BOTC same time, may not be registered in their own countries through naturalization. For adults, the BNA requires (UNICEF 2016). five years residence in the overseas territory,36 but the Government of TCI via the ordinance adopted in 2015 The situation is quite complicated as children wanting requires 10 work permits or residence permits issued for to apply for the nationality of their parents might need 10 consecutive years. This means that if you lose your travel to their parents’ country and stay for some time employment and interrupt your legal residence you can to be able to complete the procedures to apply for the be deported, losing the accumulated years regardless nationality and a passport. In some cases, TCI may issue of the amount of years spent living in TCI under a temporary travel document to allow this but – besides documented status. This signifies an enormous burden the cost of the travel that some parents cannot afford – and pressure on migrants, who are afraid to lose their there are also risks involved as if the child interrupts his jobs and be deported after several years on the islands, or her stay in TCI s/he may lose the chance to apply later and makes the road to citizenship much harder for both to become a BOTC under Section 15 (4). In addition, parents and children.37 the parents have to work in TCI so as not to lose their residence status, and this means sometimes having to 36 See footnote 2 above. 37 It is also possible to apply for a permanent residence certificate, which school route, but this requires the completion of primary and secondary opens the way to register as a BOTC via the so-called primary and secondary school in TCI, which takes much longer than 10 years.

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 41 leave their children with families in other countries of non-belongers is usually not a problem if the child until they get their nationality, involving separation of is born in a hospital. In the case of late registration, the children from their parents and possible interruption penalty of US$200 is rather expensive, particularly for of school attendance. Moreover, some migrants express families living in poverty. In addition, for undocumented their fear that once they go to Haiti with their children, migrants, the possibility of registration and obtaining a they may not be authorized to return as migration birth certificate can be quite challenging. Some sources authorities may request additional paperwork and proof from the Education Department indicated that there of sound financial status to raise a child in TCI. are also cases where they cannot admit a child because the birth certificate is held by the authorities due to an outstanding bill at the hospital as a result of non- Daphne is from Haiti and has a work permit. She payment for the delivery of a child. had a child while in TCI and wanted to obtain citizenship and a passport for him. Although the 4. Non-discrimination child is entitled to obtain Haitian citizenship and a passport, she was told that she and her child One of the most significant gaps in the protection of would have to travel to Haiti to apply for it. While human rights is a pattern of discrimination against TCI- she could obtain a temporary travel document, she born children of non-TCI Islander parents and against was not sure if her son was automatically entitled migrant children. to come back into TCI. She prefers to keep him in TCI, even though he does not have a passport, due The TCI Constitution Order 2011 Part I Section 1 to fears that she might not be able to bring him back states that every person in the territory is entitled to with her. the fundamental rights and freedoms of the individual, without distinction of any kind, e.g., based on race, national or social origin, birth or other status. Section To summarize, children born in TCI of non-belonger 7 provides that everyone is equal before the law and has parents are mainly considered as temporary migrants, a right to equal protection and benefit of the law, and face restrictions in the enjoyment of their rights and Section 16 provides protections against discrimination, can be stateless if they cannot obtain the citizenship including social origin, colour, religion, language, creed, of the country of origin of their parents. It should association with a national minority, property, sex, be remembered that States are obliged not to adopt sexual orientation, birth or other status. However, in practices or laws relating to the granting of nationality, spite of all these provisions, the Constitution allows for the application of which encourages the increase in the different treatment with respect to those “persons who number of stateless persons, and to take measures to are not Turks and Caicos Islanders”.39 This distinction grant their nationality to a person born on their territory between TCI islanders and those who are not is widely 38 who would otherwise be stateless. applied and seriously affects children’s rights.

With regards to birth registration, the registration and issuance of birth certificates for children born in TCI 39 Constitution of TCI, Section 16 (1) says that “Subject to subsections (4), (5) and (8), no law shall make any provision that is discriminatory either of 38 See, among others, article 1(1) of the Convention on the Reduction of itself or in its effect.” However, Section 16 (4) states that “Subsection (1) shall Statelessness; article 29 of the International Convention on the Protection not apply to any law so far as that law makes provision with respect to the of the Rights of All Migrant Workers and Members of their Families; article entry into or exclusion from, or the employment, engaging in any business or 7(1) of the CRC; and article 24(3) of the International Covenant on Civil and profession, movement or residence within, the Islands of persons who are not Political Rights. Turks and Caicos Islanders”.

42 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories Being a Turks and Caicos Islander is the highest 5. Family reunification immigration status locally, and only Turks and Caicos Islanders can vote in an election, apply for and be At the interviews, some migrant parents identified considered for the acquisition of residential crown land, excessive requirements – in particular financial – and apply for and be considered for the grant of a government the lack of clear and transparent procedures as the main scholarship and apply for and be considered for the issues related to family reunification. grant of a business license to operate in the restricted business licence category.40 According to consultations with the Immigration and Labour Department, there is an unwritten policy The authority to grant TCI status is provided for in interpreting the immigration ordinance to the effect that section 103 of the Constitution Order 2011 and detailed unskilled workers on work permits may not be joined in the Turks and Caicos Islander Status Ordinance 2015. by their spouses and dependent children. The rationale There are very strict requirements to be eligible and for the policy is that such workers cannot afford to bring lengthy residency requisites for those who are connected their family into TCI and maintain them there. This with an Islander. The final decision is still under the total may constitute discrimination between skilled workers discretion of the Governor to grant the status, taking (who are permitted to be joined by their spouses and into account among other things the “desirability of dependent children under 18, provided they can support granting the right to be an Islander to applicant with them) and unskilled workers, in particular those who different backgrounds and geographical areas so that a are long-term residents. suitable balance in the social and economic life of the island is maintained” (Turks and Caicos Islander Status Ordinance 2015 – Section 7). Maria is from the Dominican Republic and has been in Providenciales on a work permit for more To summarize, most migrants need to be resident for than four years. She has a son who lives in the at least 15 years to satisfy qualifying conditions to be Dominican Republic who she has not been able to granted Turks and Caicos Islander status, but they are bring over due to the kind of work permit she holds. still not necessarily entitled to acquire the status, which It is very difficult for her to travel to the Dominican depends on very ambiguous criteria under the discretion Republic because she does not have enough money of the Turks and Caicos Islander Status Commission.41 as her employer makes her pay the work permit fees and also she sends money (remittances) every month to her child. She knows that it is illegal that the employer makes her pay those fees but she cannot denounce him as she may lose the job

40 See Ministry of Border Control and Employment at https://www.gov.tc/ and therefore her legal residence in TCI, becoming bordercontrol/ps/tcistatus undocumented and losing all the years of residency 41 The additional conditions are: whether it is in the public interest to grant Islander status; the applicant is of good character and conduct; the accumulated. She has not seen her boy for two years applicant has a clean criminal record; whether the applicant suffers from and feels that this is the price she and other migrants any communicable or mental disease that would make him a danger to the society; the economic situation of the islands and protection of persons pay for being migrants in TCI. already engaged in similar gainful occupations have been considered; the desirability of granting the right to be an Islander to applicants with different backgrounds and geographical areas so that the social and economic life of the Islands may be maintained; the applicant brings any exceptional skill to the Islands; the desirability of retaining the economic resources of the Islands in control of Islanders; and the applicant meets any prescribed evaluation Even requirements to obtain a TCI visitor’s visa are criteria (Turks and Caicos Islander Status Ordinance 2015 – Section 7).

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 43 difficult to meet and imply high costs because of the fees has stated that “the right to respect for family life is a and all the paperwork and translations:42 fundamental right belonging to everyone” and that • A current police record from country of origin “reconstitution of the families of lawfully resident (must be translated if not in English) migrants by means of family reunion strengthens the • Job letter (if self-employed, proof of company policy of integration into the host society and is in the business licence) interest of social cohesion”.43 • Original bank reference letter on applicant’s behalf 6. Access to fundamental social rights • Applicant’s passport (must be valid for six months) Education • Copy of surety’s identification (must be certified) In relation to the right to education, the TCI Constitution • Covering letter from surety applying for a visa on Order 2011 Part I Section 12 establishes that every child behalf of the applicant of the appropriate age, as provided by law, shall be • Original school letter entitled to receive free primary education. The Education • Parent’s legal status (in the country where s/he Ordinance establishes the age of compulsory attendance resides) as between 4 and 16 years (Section 40). In Section 41 • Evidence of surety legal status in TCI it states “no person shall be refused admission to any • Administrative fee (US$100 non-refundable) public school on account of the religious persuasion, • Upon approval, an additional payment (US$150) race, social status or language of such person or of his parents”. The list of discriminatory grounds is rather A personal bond is required to make sure that the visitor limited and should be extended to other causes of leaves TCI before the expiration date of stay permitted discrimination, such as, on any discriminatory grounds on entry. If s/he fails to do so, the surety will have to pay including place of origin, colour, sex, and mental or a sum of money to the Government (the bond can be as physical disability, among others (Morlachetti 2015). high as US$5,000). In spite of the non-discrimination clause in the Education For children whose parents are undocumented – Ordinance, there is a provision under which children can even those who had previously been documented but be refused admission to school if their primary language are no longer in possession of a valid work permit is not English or if the Director is of the view that the (renewable annually) because they are currently without child’s knowledge of the English language is insufficient employment – going to Haiti is not an option because for general purposes. This provision is of significant they will not be able to re-enter TCI by legal means. concern, particularly when there are a significant They prefer to stay on the island to find another job. number of children from Dominican Republic and Haiti that can be excluded from school because of this reason It should be noted that long-standing restrictions on (Morlachetti 2015). family reunification imply the violation of the right to family life and other contingent rights of children and The capacity of the education system has become adolescent migrants that depend on it. In this sense increasingly over-stretched by the expansion of the the Parliamentary Assembly of the Council of Europe population, and the shortage of school places has become particularly acute in some districts of Providenciales. One 42 Applications for entry clearance should be made from outside TCI to the nearest British High Commission, Embassy or Consulate, or to the Director of Immigration, Grand Turk. 43 PACE 2004.

44 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories of the main concerns, expressed by both stakeholders Distribution by nationalities in all schools, and ministry personnel, is the overcrowding of some 2014-2015 schools on Providenciales, especially the high school but also some primary schools, which is exacerbating tensions between belonger and non-belonger parents as applications for admission exceed the places available (Halcrow Group Limited 2014). It is a fact that at the entry level in some schools, belonger children are in the minority.

Private schools (almost all on Providenciales) have grown in importance since 2000 in response to two factors: (a) the influx of migrants that could not be catered for in government schools; and (b) a demand for Source: Ministry of Education, Youth, Sports and Library Services 2015. private education from belongers as their incomes rose during the boom years. A significant amount of children are currently attending private schools (Halcrow Group Student nationalities in all schools, 2014–2015 Limited 2014). TCI 2,931 Haiti 1,844 Total enrolment in public and private primary and high schools in 2014/2015 reached 6,141, an increase Dominican Republic 203 of 9.8 per cent from 2013/2014 when total enrolment Jamaica 302 was 5,589. A total of 3,994 students were enrolled in Bahamas 137 public primary and high schools. At privately owned UK 109 primary and high schools, enrolment in 2014/2015 was United States & Canada 360 2,147. Private primary enrolment increased by 25.6 per Other Caribbean 170 cent from 2013 to 2014, whereas at private high school enrolment increased by 111.1 per cent over the same Source: Ministry of Education, Youth, Sports and Library Services period (Ministry of Education 2015). 2015

Turks and Caicos Islanders accounted for 48 per cent In general, migrant children have access to education, of the overall student population. From 2003/2004 to and the Government has made efforts to guarantee more 2014/2015, however, their percentage in overall student places in the education system to them (for example, by enrolment decreased by 15 per cent. Students from Haiti subsidizing families to send their children to private represent the largest non-native population, followed by schools, through plans to build a new public school students from Jamaica, the Dominican Republic, the in Providenciales and by allocating a budget to help Bahamas and the United States. children with classes in English as a second language). This is leading to a growing presence of Haitian children in public schools. However, although the number of migrant children in education has increased, only 30 per cent of children registered in the school system are from Haiti and only 3 per cent are from the Dominican

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 45 Republic, suggesting that there are still a number of small co-payments for all treatments. The introduction children not enrolled in education. of NHIP represented a major change in health financing as previously almost all services had been provided free There are some anecdotal reports that, in practice, of charge at clinics and hospitals. NHIP’s introduction children of belongers are given preferential treatment caused disquiet amongst the population as it came just and children whose status is unclear or who are in as the economic crisis began to bite (Halcrow Group TCI irregularly do not have an easy route to education, Limited 2014). including through education authorities asking for birth certificates and in same cases the parent’s work permit The major issue related to NHIP is the non-coverage as part of the documentation that should be submitted of persons unable to maintain the payments due to before the beginning of the school year (UNICEF 2016). unemployment or other reasons. Although this group is This may leave children from undocumented parents entitled to emergency care and services provided at free out of the school system. If they do not have access government clinics (e.g., Blue Hills Community Clinic to a government school, their only option is to gain for primary health care), it has to pay the full cost of admission to a private school. However, many Haitian non-emergency hospital treatment. This issue affects parents cannot afford to pay these fees. This is somewhat belongers and non-belongers alike (Halcrow Group reflected in the education statistics when comparing the Limited 2014). percentage of students from Haiti in public and private schools. In secondary health care, there are much fewer options available. In addition, medical regulations dictate the In 2014/2015, Haitians accounted for 77 per cent of the fees that should be paid by uninsured belongers and non-native population in public primary schools and all others. It is of particular concern that the provision 70 per cent in public high schools. In private primary states that only school children of belongers are exempt schools in the same year, students from Haiti accounted from paying fees. This means that children of non- for 35 per cent of non-native students, followed by belongers or non-residents will face fees to access health students from the United States and Canada (17 per services, leaving migrant children or even children born cent) and Jamaica (12 per cent). At private high schools, in TCI of migrant parents possibly unable to access the largest non-native population consisted of students health services, particularly if they cannot afford the fees from the United States and Canada (29 per cent) followed charged at the hospital (Morlachetti 2015). by Haitians (23 per cent) (Ministry of Education, Youth, Sport and Library Services 2015). Unfortunately, it seems that there are no statistics available regarding how many children have access Language barriers also seem to keep some children out to primary and secondary health services that might of school, as well as cause children to stop their formal indicate the scope of the problem and possible solutions. education. English as a second language classes are not usually available at primary and secondary schools, and Another important issue is when children need overseas many students whose language is Spanish or French/ treatment because of the lack of options within TCI. Creole are lagging behind (UNICEF 2016). Even in the case of legal residents, taking children out of the islands can prove to be quite challenging because Health of very strict and discretional immigration rules and The National Health Insurance Plan (NHIP) is based practices that lack any child rights perspective. on compulsory contributions from the population and

46 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories Beatrice is from Haiti. When she became pregnant, her pregnancy and delivery were deemed high risk and she had to fly to Jamaica. Once she had given birth, she was not authorized by the immigration authorities to return with her baby because she could not endorse her child on her current work permit. She had to make a decision between raising her baby and losing her job and status in TCI or keeping her job and sending the child to Haiti to be raised by her family while she sends money from TCI but lives apart from her child.

It should be noted that the new National Health Insurance (Benefit)(Amendment) Regulations 2016 that apply for some social benefits under the Department of came into operation on December 2016 provide that Social Development, but they have to meet the criteria for legal residents who are not Turks and Caicos Islanders the programme they are trying to access. Additionally, and who do not qualify for registration under any other the needs and means assessment would have to confirm category of beneficiary may now apply to the chief that they are in need. Several programmes, such as executive officer, on the approved form, for voluntary indigent aid, are only for the belonger population. There registration with NHIP. The cost is still under discussion. are some others that migrant families can access, such as If affordable it would be a good option for those who are burial assistance. legally residing in TCI. According to sources from the Social Development With regards to migrants living undocumented in the Department, many parents who are in TCI irregularly islands, the situation is of extreme concern as some are worried about accessing government services for stakeholders in TCI mentioned cases of mothers fear of repatriation/deportation and therefore do not delivering their babies out of the hospitals since they are step forward when they are in need. However, if they do afraid of going to a clinic or hospital, being identified ask for help – even when they are not eligible to receive as illegal and consequently deported after the baby was services in a formal way due to their immigration status born (UNICEF 2016). Similarly, the country poverty – the Department makes all efforts to assist the family assessment mentions that among non-belongers as best as possible to ensure that their needs are met (including children), about half do not seek public (e.g., most migrant families who cannot benefit from medical attention when needed. Instead, they use bush monetary programmes due to their various status issues medicines, go to private practices (which are more are able to access food and other services from non- expensive), seek over-the-counter drugs and/or seek profit partnerships developed by the Department). help from friends (Harcrow Group Limited 2014). The actual number of migrant families and children Social services and programmes accessing social assistance cannot be assessed as There are no legislative provisions making social statistics are not categorized by whether or not children protection an entitlement in TCI. Migrant families can are migrants.

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 47 7. Immigration procedures in cases of detention, A person without the appropriate documentation is deportation and admission of children arriving immediately taken to the detention centre located in the undocumented Five Cays district of Providenciales. Persons awaiting deportation are detained in a dormitory (one for In the last few years, there have been periods where police male detainees and one for female), without access to officers have regularly raided Haitian communities, with communication with persons outside except for a single some level of violence towards Haitians.44 According to call to inform their next of kin of their detention. Once stakeholders, most deportations now concentrate on the deportation formalities have been completed, the those caught trying to enter the country irregularly, individuals are sent back by plane to their country of usually by boat. However, there are cases where origin. immigrants without residency status or a work permit are prosecuted and deported, even those who have been In such cases, children are usually placed in the Provo living in TCI legally but are currently without a work Children’s Home until they are deported with their permit and looking for a new job (this is not allowed as parents. This depends on the age of the child because they have to leave the islands to apply for a new work the Home does not accept children under the age of permit). 6. Younger children and nursing babies are kept at the

44 The Special Immigration Customs Enforcement (SPICE) teams, which combined police, immigration and customs officers and whose job was to identify and detain illegal Haitian migrants, were suspended from late 2009 following complaints about the level of force used and human rights abuses.

48 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories detention facility with their parents, and the Department • Repatriation mechanisms should allow time of Social Development makes periodic checks to ensure and resources for the identification and special that they have the basic necessities until they are later protection of children and must fully respect deported. the rights of the child and take into account, in conformity with their international obligations When boats are intercepted arriving from Haiti, and commitments, the principles of the best there is procedure by which the Department of Social interests of the child, non-refoulement and Development is called on by immigration officials if family reunification (Committee of the Rights children are on board. In those cases, migrant children of the Child 2005, 2012; Human Rights Council are placed in the Provo Children’s Home and provided 2009; Bustamante 2009) with clothes and food until their deportation. • Migrant children should also be able to be heard in a variety of judicial or administrative Interviewees had several criticisms of the immigration settings, including in all aspects of immigration procedure in cases of deportations, including that the and asylum proceedings such as in the context deportation process in most cases occurs within 24 of the detention or deportation of themselves hours without due process of law, that the consulate or their parents (art. 12 CRC; Committee of the of the country of origin is not notified and that the Rights of the Child 2009; Bustamante 2009). migrants are deprived of liberty without any rights and • States have the duty to ensure full respect for not even allowed to go back to collect their belongings. and observance of the Vienna Convention on It should be noted that migration legislation, regulations Consular Relations, in particular with regard and policies in place do not adopt a children’s rights to the right of all foreign nationals, regardless perspective, nor do they have specific provisions on of their immigration status, to communicate children. Children’s views are not consulted at any time, with a consular official of the sending State in and there are not specific procedures to determine the event of arrest, imprisonment, custody or whether the best interests of the child are to remain detention, and the obligation of the receiving in the territory or be returned to her or his country of State to inform the foreign national without origin. In several cases, no contacts are made with the delay of his or her rights under the Convention consular authorities and/or the social services agencies (Human Rights Council 2009). in the country of origin. Finally, as pointed out by the United Nations High There are several human rights standards compromised Commissioner for Human Rights (Bustamante 2009), by immigration procedures in place in TCI with regards all authorities and institutions that come into contact to children: with children in the context of migration are required • As a general rule, children and families with to determine that their actions are primarily concerned children should not be detained, and priority with protecting the interests of the individual child. should be given to alternatives to detention This principle should override all others, including where families and children are together conflicting provisions of migration policy should these (CMW 2013; Committee of the Rights of the arise (art. 3 CRC; Committee of the Rights of the Child Child 2005, 2012; Human Rights Council 2009; 2013; OHCHR 2010). Bustamante 2009)

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 49 8. Compliance with international human right standards and recommendations

Human rights standards/ Main gaps Recommendations CRC

Art. 2 – Non-discrimination It should be noted that the definition of  Amend the Constitution to at least recognize discrimination does not cover all aspects equal treatment between national and migrant States Parties shall respect and required by the CRC; in particular, the children and abolishing discrimination ensure the rights to each child Constitution allows for different treatment between islanders’ children or not within their jurisdiction without with respect to those persons who do not discrimination of any kind, belong, including children, and therefore the  Adopt/amend legislation and policies that irrespective of the child’s or his or status of parents is transmitted to the child, apply to all children without any distinction her parent’s national, ethnic origin, limiting his/her rights between national and migrant children birth or other status

Art. 3 – Best interests of the child There is no legislation in place that  Adopt procedures granting the child the right recognizes the best interests principle and/ to have his or her best interests assessed and General comment No. 14 (2013) on or policy/procedure for the determination of taken into account as a primary consideration the right of children to have their the best interests of the child in immigration in all actions or decisions that may affect him best interests taken as a primary applications and procedures or her in any migration procedure (family consideration in any decision that reunification, extension of stay and residency, may affect their rights The view of the child is not taken into naturalizations, etc.) account in decision-making processes (particularly immigration procedures) that may affect her or his rights

Art. 7 – Registration after birth Birth registration is granted to most children  Remove any practice that acts as a barrier and acquire a nationality born in TCI without distinction, but there are to get birth certificates (e.g., denial of birth some restrictions in practice certificates due to pending hospital bills) Art. 8 – Preserve the child’s identity, including a nationality, Very restrictive access to a nationality,  Amend national legislation to automatically name and family relations, including for children born in TCI of migrant provide children born in TCI with a birth as recognized by law without parents certificate and residence status, granting unlawful interference them full access to rights on equal terms with national children

50 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories Art. 9 – Right to family relations Legislation/policies do not explicitly  Fully recognize the right to family and to be with both parents recognize the principle of family reunification in the case of parents and States Parties shall ensure that a reunification and do not address family children living separately child shall not be separated from relations and reunification as an entitlement his or her parents against his/her  Approve legislation and/or policies that will Lack of clear procedures and guidelines recognize family reunification as an for family reunification and very strict entitlement and establish a clear and Art. 10 – Family reunification requirements to allow visas to visit TCI transparent procedure to reduce discretion In accordance with the obligation in the decisions taken by the Immigration under article 9.1, applications by High level of discretion in decisions taken Department a child or his or her parents to by immigration authorities that may result  enter or leave a State Party for the in arbitrary outcomes regarding family The procedure should include clear purpose of family reunification reunification and visas information and full respect for due process of shall be dealt with by States law (including the right to appeal decisions) Parties in a positive, humane and  Disseminate information (Internet, etc.) about expeditious manner the procedures and requisites to apply for family reunification

 Consider reducing requirements (documentation and financial) to facilitate visits to TCI of children of parents living there

Art. 12 – Right to be heard and There is no policy/procedure providing for  Adopt procedures granting the child the right participate the participation and/or hearing of children to have his or her views heard and taken into in migration cases where decisions that may account in all cases and decisions that may General comment No 12 (2009) on affect children and/or their parents are taken affect him or her in any migration procedure the right of the child to be heard by immigration authorities (family reunification, extension of stay and residency, naturalization, etc.)

 Provide information to migrant children that is adapted to their age and cultural conditions, using simple and clear language and the support of an interpreter, if necessary

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 51 Art. 24 – Right to health Access (financial) to health services is limited  Repeal legislative provisions and regulations for children and adolescents (there are some discriminating against migrant children General comment No. 15 (2013) exemptions and benefits for children of and preventing them from having access to on the right of the child to the residents) public services and programmes (e.g., medical enjoyment of the highest attainable ordinance and fees regulations) standard of health (art. 24) Restricted accessibility (financial) for migrant children of non-resident parents  Abolish imposition of higher fees for medical General comment No. 4 (2003) on services for children based on their and/or adolescent health and development their parent’s migratory status in the context of the CRC  Guarantee that the NHIP does not become a bottleneck for those families that cannot afford to be part of it.

 Assess the financial impact of including all children without distinction by their migratory status in the benefits under NHIP at affordable costs

 Increase the coverage of secondary health services to children regardless of migratory status

 Ensure that any medical overseas treatment for children (prescribed by doctors) will not put at risk their return to TCI due to immigration regulations

 Employ Spanish and Creole speakers to reduce language problems

 Ensure that migrants are not asked to show any proof of legal residency (avoid migratory controls in public services)

 Adopt a proactive approach to identify children in need of health care, immunizations, etc.

Art. 26 – Right to social security There are no legislative provisions providing  Consider the possibility of adopting a Social and social protection for social protection as an entitlement Protection Act and/or regulations that includes the possibility of accessing benefits Art. 27 – Right to an adequate by migrant children regardless of their and/or standard of living, including their parent’s migratory status material assistance and support programmes, particularly with  Adopt a proactive approach to identify regard to nutrition, clothing and children in need of social services housing

52 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories Art. 28 – Right to education The right to education is granted by the  Remove any legislative and administrative TCI Constitution Order 2011 Part I Section barriers (e.g., request for birth certificate) and Convention against 12 and the Education Ordinance (Chapter facilitate and promote integration of migrant Discrimination in Education 1960 12.01), but there are some provisions that children in the education system may discriminate against migrant children (e.g., language requirement)  Repeal the provision of the Education Act that allows refusal of admission when the child’s knowledge of the English language is insufficient, address the need for ESL in primary and secondary schools and reinforce initiatives to assist children from non-English- speaking countries

 Employ Spanish and Creole speakers to reduce language problems

 Ensure that migrants are not asked to show any proof of legal residency (avoid migratory controls in public services)

 Adopt a proactive approach to identify out-of- school children and develop effective public policies to reinsert them back into formal education.

Art. 7 – Nationality and Very restrictive and lengthy process to be  Align TCI’s legislation and/ or policies with statelessness able to acquire nationality including for the BNA about the time required for resident children born in TCI of migrant parents migrants to apply for naturalization (five Convention relating to the Status years) of Stateless Persons  Consider amending legislation to facilitate acquisition of permanent residency/ BOTC/ belongership status to children born in TCI, particularly to prevent statelessness

 Review the situation of migrants who are ineligible for permanent residency under the current regulations, giving emphasis to those with children born in TCI

 Review the affordability of current fees to obtain a permanent residence certificate

 Consider the reform of the BNA to automatically provide citizenship to children born in TCI regardless of their parents’ status (this recommendation requires action by the United Kingdom)

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 53 Lack of ratification of The lack of ratification of some key Ratify (extend) the following fundamental treaties: fundamental human rights fundamental treaties affects the rights of  Convention on the Protection of the treaties migrants including children Rights of all Migrant Workers and Their Families  The Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children  Optional Protocol to the CRC on the sale of children, child prostitution and child pornography  The Optional Protocol to the CRC on a communications procedure (This recommendation requires action by the United Kingdom)

54 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories General recommendations

 Incorporate a child rights perspective in migration laws, policies and programmes, together with a rights-based approach, ensuring both that the particular needs and rights of children are expressly included and that all human rights are recognized for all migrant children, irrespective of age, sex, nationality or migration status  Ensure that a child protection perspective prevails over migration and security concerns  Ensure the protection of the child in all migration-related circumstances, regardless of the immigration status of the child or his or her family, and take into account the best interests of the child as a primary consideration in all migration-related initiatives and actions concerning children at all levels  Establish effective procedures to assess, in a child-friendly manner, the risks children would face if returned to their country of origin or to any risk of ‘chain refoulement’ (i.e., removal to third countries in which the person would be at risk of refoulement), including access to asylum procedures and procedures to establish whether they have been subject to trafficking and other serious human rights violations.  Establish favourable family reunification policies that enable children left behind to join their parents, thereby avoiding irregular and unsafe channels  Facilitate and ease restrictions to obtaining permanent residence to contribute to migrants’ integration into society, to child development and to the protection of family life  Promote and protect the rights of every child to be registered immediately after birth, to have a name from birth, to acquire a nationality and, as far as possible, to know and be cared for by his or her parents, in particular where the child would otherwise be stateless  Avoid migration-related detention of children as this cannot be justified on the basis of maintaining the family unit (for example, detention of children with their parents when all are irregular migrants); adopt alternative measures for the entire family with children, developing policies for placing the entire family in alternative locations  Comply with the consular notification and access obligations set forth in the Vienna Convention on Consular Relations so that States may provide child-friendly consular assistance, as appropriate, including legal assistance  Train all state officials and personnel who come into contact with children in the context of migration, including border control authorities and personnel in detention centres, to apply a child-sensitive and rights-based approach that takes account of the specific vulnerability, needs and rights of children on the move; the principles of the CRC should be an integral part of this training  Promote employment of Creole speakers across government agencies to facilitate communication and understanding  Prioritize the collection of age- and gender-disaggregated data across all government departments on the human rights situation of children in the context of migration to make migrant children visible in TCI  Undertake publicity campaign to ensure that migrants accessing any government service are treated with respect and to promote understanding  Strengthen access to mechanisms to report discriminatory treatment on an individual and collective basis  Strengthen cooperation mechanisms that foster joint cooperation, dialogue and consensus with countries of origin, in particular with the Government of Haiti

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 55 D. Virgin Islands The lack of ratification of some key fundamental treaties such as the Convention on the Protection of the Rights of I. Overview all Migrant Workers and their Families and the Optional Protocol to the CRC on a communications procedure47 48 The British Virgin Islands is made up of over 42 islands, affects the rights of migrants, including children. rocks and keys. The four largest islands are Tortola (where 83 per cent of the population resides), Virgin Furthermore, it should be noted that the Virgin Islands, Gorda, Anegada and Jost Van Dyke. like most Commonwealth States, takes the position that treaties are not justiciable before national courts. This The Virgin Islands is a British Overseas Territory, is due to the common law doctrine that treaties do not with the Sovereign as the Head of State represented form part of domestic law and the view that international by the Governor. Since 1967, it has held responsibility and national law are distinct legal orders. Therefore, for for its own internal affairs. The Governor has direct international law to be applicable in the national legal responsibility for external affairs, defence, internal order, it must be received through domestic legislative security (including the police), the public service and measures that transform the international rule into a the administration of the courts. The Virgin Islands national one. National legislation is thus a fundamental Constitution Order 2007 provides for the people to be instrument in implementing the rights recognized in the represented by a ministerial system of government, led CRC and other human rights treaties and granting equal by an elected Premier, a Cabinet of Ministers and the access to basic social services for migrant children. House of Assembly. The law of the Virgin Islands is the common law of England and locally enacted legislation, According to the 2010 Census (Central Statistics Office which is administered by the Magistrates’ Courts and 2016), there were 10,830 households and 28,054 persons the Eastern Caribbean Supreme Court (Government of then residing in the Virgin Islands. The child population the United Kingdom 2014; Morlachetti 2015). (0–19) was around 8,000 and corresponded to about 29 per cent of the total population (ibid.; UNICEF 2016). Section 34 of the Constitution Order provides for the establishment of a Human Rights Commission, but this Although, the Virgin Islands has already completed had not yet been set up in spite of the constitutional its demographic transition (low fertility and mortality mandate. levels), the proportion of elderly is still very small due to the large working age population, which is a direct result The extension by the United Kingdom to the Virgin of immigration. Therefore, the territory has very low Islands of the Convention on the Rights of the Child (CRC), the Convention on the Reduction of Statelessness and the Convention relating to the Status of Stateless Forms of Racial Discrimination; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the International Persons45 is a fundamental starting point to upholding Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; the Convention on the Elimination of the rights of migrant children and those children that All Forms of Discrimination against Women; the European Convention for may be stateless.46 The Protection of Human Rights and Fundamental Freedoms. 47 See note 5 above. 48 The following treaties have also not been extended by the United 45 It should be noted that the United Kingdom has made the following Kingdom to the Virgin Islands: the Convention on the Rights of Persons with reservation to the Convention relating to the Status of Stateless Persons: that Disabilities; ILO Convention No. 182 on the worst forms of child labour; it cannot undertake that effect will be given in the West Indies to articles 8, 9, ILO Convention No. 138 on the minimum age for admission to employment 23, 24, 25, 26 and 31. and work; the Optional Protocol to the CRC on the sale of children, child 46 The following treaties have also been extended by the United Kingdom prostitution and child pornography; and the Protocol to Prevent, Suppress to the Virgin Islands: the International Convention on the Elimination of all and Punish Trafficking in Persons Especially Women and Children.

56 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories dependency ratios.49 This translates to direct benefits, came from other Caribbean islands, the vast majority as some of the many implications of low dependency from English-speaking countries (Central Statistics ratios are higher tax revenue and lower government Office 2016). The exception was the influx of migrants expenditure on education and health due to fewer from the Dominican Republic. children and elderly persons. The top 10 countries from which migrants come are According the 2010 Census, about 39 per cent of the Guyana, St. Vincent and the Grenadines, Jamaica, population was born in the Virgin Islands while 60.9 per United States, Dominican Republic, US Virgin Islands, cent was born aboard. The corresponding nationality St. Kitts and Nevis, Dominica, United Kingdom and ratio was 64. This means that for every 64 persons born Grenada. in the Virgin Islands, there were 100 persons who were born elsewhere (Central Statistics Office 2016). Among Top 10 countries of origin the child population aged 0–14 years, 56 per cent were Guyana 2,023 7.2 % reported as saying they were born in the Virgin Islands St. Vincent and the Grenadines 1,968 7.0% (which does not necessarily characterize them as belongers) and the remaining population (44 per cent) Jamaica 1,697 6.0% was born abroad (UNICEF 2016). United States 1,537 5.5% Dominican Republic 1,526 5.4 % For the most part, migration into the Virgin Islands is US Virgin Islands 1,481 5.3% not concentrated on just one nationality but diverse and St. Kitts and Nevis 1,214 4.3% evenly distributed among different nationalities. The Dominica 1,098 3.9% census identified at least 15 ethnic groups of which most United Kingdom 714 2.5%

49 Just over 22 per cent of the population were young (0-14 years), 71.6 Grenada 483 1.7% per cent were of working age (15-64 years) and 6.0 per cent were elderly Source: Adapted from Central Statistics Office 2016 (65 years plus), The broad age distribution of the population yields a young dependency ratio of 31.2 per cent and an old dependency ratio of 8.4 per cent, resulting in a total dependency ratio of 39.6 per cent

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 57 Most persons immigrate to the Virgin Islands for This signifies an enormous burden and pressure on employment. Migrants tend to take on less qualified migrants, who are afraid to lose their jobs, and makes jobs for lower pay. While 33.4 per cent of people from the road to citizenship much harder for both parents abroad earned a relatively low income, this was the case and children. for only 17.4 per cent of persons born in the Virgin Islands ( Central Statistics Office 2016). Basically a child without a parent who has become a BOTC has to wait for 10 years to submit an application 2. Birth registration, acquisition of nationality and to be a BOTC under Section 15 (4) of the BNA.52 This prevention of statelessness means that a child may be without any nationality for a long period of time if s/he does not obtain a nationality Citizenship status is governed by the British Nationality from their parents’ country of origin. Act (BNA) of 1981, the Virgin Islands Constitution Order of 2007, chapter 1, section 2 (2) and the Immigration During the interviews, some government officials and Passport Ordinance. In spite of the Virgin Islands’ denied that there were stateless children in the Virgin ratification of the Convention relating to the Status of Islands, arguing that migrant children could obtain the Stateless Persons, it is complicated for children born in nationality of their parents. But there are some who the Virgin Islands who are not related to a parent who admit that it is unfair that children born in the territory is a BOTC to obtain the nationality from their country are considered temporary migrants as they have not of origin, and the actual options to become a BOTC and moved from anywhere or crossed any border. It is prevent statelessness are very limited and lengthy. difficult to defend that if a child is born in the Virgin Islands to migrant parents, they are required to apply The best scenario is for one of the parents to become a to the Immigration Department for permission for the BOTC through the process of naturalization. For adults, child to reside and even in same cases to pay a costly the BNA requires five years residence in the overseas Immigration Bond as if the child had been brought territory,50 but the Government of the Virgin Islands there from another country. Those officials mention as a matter of policy requires 20 years of consistent the need to change the BNA and also make the internal residence for permanent residence and later to register laws and policies more flexible vis-à-vis children born in for naturalization. It should be noted that it was not a the territory (e.g., granting them immediate permanent law but policy changes that extended the requirement residence and travel documents).53 from seven to 20 years.51 Even when children may be able to obtain the nationality This means that during that 20-year period, migrants of their parents, in practice the situation is quite are considered to be temporary and have to renew work complicated and costly as they have to travel to their permits every year. If they lose their employment, they parents’ country and stay for some time to complete can be deported regardless of the amount of years spent all the procedures for their nationality and passport. In living in the Virgin Islands under documented status. some cases, the child even has to apply for a visa to re- enter the Virgin Islands regardless of the fact that s/he 50 See footnote 2 above. 51 Permanent resident status is granted after application is made to the Immigration Department that is vetted by the Board of Immigration for 52 It is not clear, but it is likely that an undocumented child is not able to consideration and a recommendation made to the Premier’s Officer for benefit under Section 15 (4) of the BNA as s/he may not be able to produce further approval or denial by Cabinet. To be eligible, persons have to be evidence of his or her stay in the Virgin Islands for the required 10 years. residing in the Virgin Islands continuously for 20 years or be married to a 53 The Virgin Islands does issue travel documents in cases of health Virgin Islands belonger for five years and be residing in the Territory for said emergency to have treatment overseas and/or to allow children to go back to period of time. the country of origin of their parents to obtain a passport.

58 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories actually was born there and has a birth certificate issued issuance of birth certificates for children born in the by the territory. Virgin Islands of non-belongers is usually not a problem if the child is born in a hospital. Fees in the case of late registration are not expensive. Kathleen is from Jamaica and has been living in the Virgin Islands for seven years. She has a 3-year-old 3. Non-discrimination boy who is entitled to obtain Jamaican citizenship and therefore obtain a passport, but she has to travel The Virgin Islands Constitution Order of 2007, chapter 2, to Jamaica to apply for it. She obtained a temporary section (9), states that every person in the Virgin Islands travel document so the child could travel and is entitled to enjoy fundamental rights and freedoms asked permission from her work to go to Jamaica. without distinction of any kind such as sex, age, race, Her child was treated as a foreigner by Jamaican colour, language, religion, political or other opinion, immigration because he had a travel document national, ethnic or social origin association with a from the Virgin Islands. She did all the paperwork national minority, property, family relations, economic and obtained the citizenship and passport, but status, disability, age, birth, sexual orientation, marital because Jamaicans need a visa to enter the Virgin status or other status. Islands she had to ask for a visa for her child. She also had to ask for an extension to her permission In addition, Chapter 2 Section 26 (1) (a) of the at work (risking her job) to allow for more time Constitution defines ‘discriminatory’ as meaning to be able to obtain the visa. Finally, she asked for affording different treatment to different persons on permission to return to the Virgin Islands with her any ground such as sex, race, colour, language, religion, child and endorsed him on her work permit to be political or other opinion, national, ethnic or social able to re-enter the country. origin, association with a national minority, property, family relations, economic status, disability, age, birth, sexual orientation, marital or other status. To summarize, children born in the Virgin Islands The Constitution is in compliance with the non- of non-belonger parents are considered temporary discrimination clause of the CRC, but with a fundamental migrants, face restrictions in the enjoyment of their exception that allows for different treatment of non- rights and can be stateless if they cannot obtain the nationals. Chapter 2 Section 26 (2) and 4 (b) allows for citizenship of the country of origin of their parents. different treatment to those “persons who do not belong It should be remembered that States are obliged not to the Virgin Islands”.55 to adopt practices or laws relating to the granting of nationality, the application of which encourages an This distinction between belongers and non-belongers increase in the number of stateless persons, and to take is widely applied and seriously affects child rights measures to grant their nationality to a person born on (Morlachetti 2015). their territory who would otherwise be stateless.54

55 Chapter 2, section 26 (2) states that “subject to subsections (4), (5) and (7), With regards to birth registration, the registration and no law shall make any provision that is discriminatory either of itself or in its effect”. However, the Constitution further states that “Subsection (2) shall not apply to any law so far as the law makes provision…(b) with respect to the 54 See, among others, article 1(1) of the Convention on the Reduction of entry into or exclusion from, or the employment, engaging in any business or Statelessness; article 29 of the International Convention on the Protection profession, movement or residence within, the Virgin Islands of persons who of the Rights of All Migrant Workers and Members of their Families; article do not belong to the Virgin Islands, or for any other purpose with respect 7(1) of the CRC; and article 24(3) of the International Covenant on Civil and to such persons to the extent that the provision is reasonably justifiable in a Political Rights. democratic society”.

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 59 4. Family reunification and show that they can financially afford to bring in their child(ren). In instances where the application is According to the immigration authorities, there are not successful, an entry permit is granted for one year and formal programmes or benefits for family reunification is renewable on a yearly basis if the family decides to in the Virgin Islands. Persons who are there on work remain. Parents have to pay immigration fees and a one- permits and want their dependent children to also reside time immigration bond to the Immigration Department. there have to make a formal application in writing to the chief immigration officer to have this considered. At the interviews, some migrant parents identified excessive requirements – in particular financial – and Conditions for migrants to bring their families are the lack of clear and transparent procedures as their ambiguous and decisions are mainly discretional, main issues. The cost of being a migrant in the Virgin but one fundamental precondition is to apply in Islands can be very high due to immigration fees, work advance for a space in a public and/or private school. permit fees and visa fees that must be paid every year. According the Education Regulations (2016), a person These can add up to as much as a month’s salary for low- desirous of bringing a child into the territory for skilled workers. Consultations with migrant parents and admission to a school shall (a) settle the child’s status the authorities suggest it is difficult for such workers with the Department of Immigration; and (b) contact to bring in their spouses and dependent children as the Ministry to inquire whether a place is available they cannot show that they can afford to support their in a school for the accommodation of the child and family. This situation may last for two decades as they about such other matters as might be necessary for the are still considered temporary migrants until 20 years of admission of the child into a school. consistent residency.

As spaces in public schools are very limited, in most cases parents should ensure a place in private school

60 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories Marta is from the Dominican Republic and has been in the Virgin Islands on a work permit for nine years consecutively, working as a cleaning lady for the same establishment. She has three children living in the Dominican Republic and has not been able to bring them over because she has not been authorized to do so. She applied several times to the Education Department to secure a place in the public schools, but that was denied due lack of space. As she is on the minimum wage, it is impossible for her to afford a private school. She tries to travel to Dominican Republic at least once a year, but sometimes it is every other year. She has to pay for her work permit, visa and immigration fee every year. She thought that she would be able to become a permanent resident some years ago and then have more money for her children, but since the Government changed the rules she has to wait another 10 years and continue paying all the fees every year. Her parents have raised her children, and she has seen them in the last years for only 10 days each year. Now her children are growing up and she is not interested in bringing them to the Virgin Islands anymore; she says they will not be treated fairly and she does not want them to suffer as she does.

It should be noted that the lack of family reunification an educational programme appropriate to their needs. programmes and restrictions on family reunification In addition, the Education (Amendment) Act, 2014 imply the violation of the right to family life and other recently increased the compulsory school attendance contingent rights of children and adolescent migrants age from 16 to 17 years. that depend on it. Article 10 of the CRC requires that applications by a child or his or her parents to enter or Section 30 of the Education Act 2004 makes clear that “a leave a State Party for the purpose of family reunification person who is eligible for admission to a public school shall be dealt in a positive, humane and expeditious or an assisted private school as a student shall not be manner. Accordingly, the Parliamentary Assembly refused admission on any discriminatory grounds of the Council of Europe has stated that “the right to including race, place of origin, political opinions, colour, respect for family life is a fundamental right belonging creed, sex, mental or physical handicap”. to everyone” and that “reconstitution of the families of lawfully resident migrants by means of family reunion The Education Regulations (2016) seem to restrict strengthens the policy of integration into the host which children are entitled to be admitted as students of society and is in the interest of social cohesion”.56 a school.57 In the case of migrant children, it should be a child of a person to whom a Certificate of Residence has been 5. Access to fundamental social rights granted under the Immigration and Passport Act or a child of a person who is ordinarily resident in the Virgin Islands. Education With regards to the right to education, Chapter 2, Section 22 of the Virgin Islands Constitution provides 57 “(a) A child of a person who belongs to the Virgin Islands pursuant to that, “every child of the appropriate age, as provided by section 2 (2) of the Constitution of the Virgin Islands; (b) a child of a Foreign or Commonwealth Diplomat or Consular Officer serving in the Virgin law, shall be entitled to receive primary education …”. Islands; (c) a child of a person employed in the Virgin Islands by an overseas or regional organisation in which the Government of the Virgin Islands participates; (d) a child of a person to whom a Certificate of Residence has The Education Act, 2004 (Section 15) states that subject been granted under the Immigration and Passport Act; (e) a child of a person employed in the service of the Government of the Virgin Islands; (f) a child to available resources, all persons are entitled to receive of a serving member of any of her Majesty’s Forces on duty in the Virgin Islands; (g) a child of a person employed in the service of any Commonwealth country engaged in official duties in the Virgin Islands; (h) a child of a person 56 PACE 2004. who is ordinarily resident in the Virgin Islands”.

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 61 The problem lies with the definition, for the purposes of to education depends on the capability of their parents this regulation, of ‘ordinarily resident’ as a person who to afford private schools. There are no financial subsidies has resided in the Virgin Islands for a period of not less available for parents to help them send their children to than three years immediately preceding the date of the private school.58 application to admit his/her child into a school, and that (a) the number of days on which he was absent from the Moreover, children of irregular migrants (work permit Virgin Islands in that three-year period did not exceed over-stayers) are not able to even apply to school because 270 days; (b) the number of days he was absent from the they are required to present their passports and work Virgin Islands in the period of 12 months immediately permits, and the Education Department confirms the preceding the date of the application did not exceed 90 legal status with the Immigration Department.59 days; and (c) he was not, at any time during the relevant period of three years, in breach of the immigration laws Finally, another problem commonly faced by migrant of the Virgin Islands. children, in particular migrants from Haiti and the Dominican Republic, is the language. There are no Does this mean that children of parents residing less English as a second language (ESL) programmes in than three years in the Virgin Islands or interrupting for place to support these children (Morlachetti 2015). a period of time their residence in the territory are not entitled to education in the territory? Does it mean that Health if the parents were unemployed and overstayed their With the implementation of the National Health visa due to the expiration of their work permit any time Insurance (NHI), which is based on compulsory during the previous three years, their children lose their contributions from the population and small co- right to education? payments for most treatments, legal residents with work permits are able to sponsor their children, who can As education is compulsory, and the Constitution and obtain an NHI card. The contribution of workers to the the Education Act formally protect children from any NHI does no change with the inclusion of children. The discrimination in admission to schools in compliance Social Security (National Health Insurance) Regulations with art. 2 of the CRC, the Education Regulations should (2015) consider a child as an unmarried person who is not limit the legal entitlement to education for children the biological or adopted son or daughter of a resident because of the nationality, migratory status or residence and has not attained the age of 18 years or has not attained length of their parents. the age of 25 and is receiving full-time education at a university or other educational institution. In addition, in practice there are still huge obstacles for migrant children to access the educational system. In order to apply, a birth certificate, valid passport, valid There is not enough space in public schools for the work permit and proof of immigration status has to be growing population of children, and authorities from provided. the Education Department confirmed unwritten policies that they give priority in the allocation of spaces in the public schools: first to children of belonger parents, 58 The Convention against Discrimination in Education 1960 (Extended second to children born in the Virgin Islands and lastly to the Virgin Islands on 9 December 1964) mandates that States should ensure, by legislation where necessary, that there is no discrimination in the to migrant children born abroad. As a result of the lack of admission of pupils to educational institutions and give foreign nationals spaces and the preference by nationality, many children resident within their territory the same access to education as that given to their own nationals (art. 3). will not find a place in public school, and so their access 59 Ministry of Education and Culture undated.

62 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories The major issue related to NHI is the non-coverage The Act defines ‘resident’ as a person granted status of persons unable to apply and/or maintain coverage under the Immigration and Passport Ordinance, and due to unemployment and/or change in immigration this very ambiguous definition creates a problem. status. In such cases, children lose their NHI card and According to the authorities interviewed, migrants do entitlement to health services; and even when health apply but applications are only successful for belonger care may be provided in practice, a bill will be sent to families and permanent residents. The vast majority their parents.60 of migrant children living in the Virgin Islands (even those born in the territory) are therefore not covered in This means that children of non-belongers or non- practice by the Act. residents face fees to have access to health services, leaving migrant children – and children born in the This interpretation of the Act constitutes a serious breach Virgin Islands but of migrant parents with irregular of the Virgin Islands obligations under the CRC as it status – unprotected by the law to have access to health bars children from having access to social programmes services, particularly if they cannot afford the fees and services based solely on their migratory status and charged at the Peebles Hospital. of their parents (arts. 2, 3, 19, 26 and 27).

Social services and programmes In cases of violence and abuse, the child protection The Virgin Islands Public Assistance Act, 2013 regulates services intervene and, if necessary, place children in access to social programmes. Benefits included in this residential care according the Children and Young Act are medical assistance, food and household supplies, Persons Act (2005) regardless of the migratory status of funeral and burial assistance, childcare assistance, the children and/or their parents. transportation and rent assistance and emergency assistance. 6. Immigration procedures in cases of detention, deportation and admission of children arriving The first problem with this Act is that it defines a child undocumented as a person under the age of 16 years, which contradicts the protection obligation for persons under 18 years The Immigration and Passport Ordinance (Cap 130) outlined in the CRC. regulates admission, residence and employment in the Virgin Islands. Persons have to meet certain requirements In addition, according to the Act, the Public Assistance to be admitted. Most persons are considered temporary Committee may provide assistance to a person who (a) residents whilst being employed. Entry permits are is a belonger, or (b) is a resident, or (c) is the spouse of a mostly related to work permits, and applications should belonger or (d) is responsible for the care of a dependent be done while the person intending to reside in the person who is a belonger or resident. Virgin Islands is abroad.61 This means that, under the law, once a person loses a job or just want to change employer, the entry permit automatically becomes null and void. The only remedy is for that person to leave the 60 The Hospital Regulations, 2014, provide that in cases of dependant children, the Ministry of Health and Social Development is liable for the hospital charges payable under these Regulations in respect of the persons, and in most cases children will have free access to health services. But the 61 A work permit is not an authorization for the person to work in the problem for migrant children lies with the definition of ‘dependant child’ territory; rather, it is an authorization for the person to work in a specific job, in the Regulations: “’Dependant child’, in relation to a Belonger or resident, for a specific person or company. Moreover, the permit has to be renewed means an unmarried person who is the biological son or daughter of the annually, a system which gives too much power to employers and promote Belonger or resident or, is treated as a child of the family”. low salaries and hide abuses committed against non-belonger employees (UNICEF 2016).

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 63 territory and make a new application to re-enter. In most cases, the Government issues a Notice of Intent to deport, giving the person time to give reasons in writing In 2016, the Government, through the Immigration to the Governor as to why a deportation order should Department, introduced changes to the Ordinance to not be made against him or her. If the request is denied, allow the chief immigration officer to grant permission a deportation order is issued and the deportee has seven to persons to remain in the Virgin Islands for the days to appeal. According to immigration authorities, purpose of seeking employment. Persons who have if someone has a family and is the sole breadwinner, a been working in the territory for five years or more and decision will be taken by the chief immigration officer as are looking for a new job and changing employers will to whether the rest of the family may or may not remain. no longer be required to leave during the transition There are no specific laws, policies and/or procedures process. A conditional permit valid for 90 days will that recognize explicitly the right to participation and be issued. The reason for this amendment, according provide that every child is able to express her or his views to the authorities, is to reduce any detrimental social “in all matters affecting” them (art 12. CRC). The right effects and unnecessary financial hardships on families, to be heard is not granted in judicial and administrative businesses and the economy. proceedings that may result in the deportation of the child and/or his or her parents and neither is it granted Still, only persons who have worked in the territory for in the procedure for the determination of whether a period of five years would ordinarily qualify. Those deportation may be against the best interests of the child persons who have held entry permits for one to four (art 3. CRC). years will not be considered unless they can demonstrate exceptional circumstances where the amendment may apply. Allan and Christine have been living for several years in the Virgin Islands. He is from Jamaica and The possibility of extension or not of the work permits she is from St. Vincent and the Grenadines. They is a very serious matter as overstaying is considered a have a toddler. They had been on work permits and criminal offence under the Immigration and Passport regularly paid all the fees to the Immigration and Ordinance. If a person is taken to the Court for knowingly Labour Departments. However, Allan lost his job overstaying, they may be imprisoned, fined and finally and under the law he is not allowed to remain. He deported. The place to which they are remanded is not was invited to leave the island voluntarily but did a detention centre for migrants awaiting deportation not want to do so as his family is there and his wife but rather Balsam Ghut prison, where they are with has a job and a valid work permit. He was finally prisoners charged with committing real crimes.62 deported to Jamaica and his family remains in the Virgin Islands He tried to return, but his application has been turned down as he had been deported.

62 In January 2017, according to local newspapers, a 34-year-old woman from the Dominican Republic was remanded to prison when she appeared in the Magistrate’s Court for remaining in the Virgin Islands without a valid permit. She had lost her job as a waitress in a bar in October 2016. She had According to the authorities, the Immigration been to the Immigration Department to seek a new permit, and officers there instructed her to submit a few documents for a new permit to be processed. Department does not detain children. In the case of It is reported that she submitted some of the required documents on 10 the detention of one or both parents, arrangements are November and was told to return with the others. She did not return, and instead cut off communication with the Department. Immigration officers made for the child to remain with the other parent/a subsequently charged her with overstaying. The Magistrate denied the woman bail after noting that she did not have any remaining ‘time’ in the family member or be sent to child protection services. jurisdiction (BVI Online 2017). Policies and rules regulating family reunifications,

64 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories temporary visits, the acquisition of temporary and permanent residence, naturalization and belongership status in the Virgin Islands are still extremely complicated, and there is not appropriate dissemination of information about entitlements and requirements to apply for any of these options. Rather, most decisions are left at the discretion of the authorities, and explanations are not usually offered when applications are denied.

There are several human rights standards compromised by immigration procedures in place in Virgin Islands with regards to children: • As a general rule, children and families with children should not be detained and priority should be given to alternatives to detention where families and children are together (CMW 2013; Committee of the Rights of the Child 2005, 2012; Human Rights Council 2009; Bustamante 2009) • Repatriation mechanisms should allow time and resources for the identification and special protection of children, and must fully respect the rights of the child and take into account, in conformity with their international obligations and commitments, the principles of the best interests of the child, non-refoulement and family reunification (Committee of the Rights of the Child 2005, 2012; Human Rights Council, 2009; Bustamante 2009) custody or detention, and the obligation of the • Migrant children should also be able to be heard receiving State to inform the foreign national in a variety of judicial or administrative settings without delay of his or her rights under the including in all aspects of immigration and Convention (Human Rights Council 2009) asylum proceedings such as in the context of the detention or deportation of themselves or their Finally, as pointed out by the United Nations High parents (art. 12 CRC; Committee of the Rights of Commissioner for Human Rights (Bustamante 2009), the Child 2009; Bustamante 2009). all authorities and institutions that come into contact • States parties have the duty to ensure full respect with children in the context of migration are required for due process of law and observance of the to determine that their actions are primarily concerned Vienna Convention on Consular Relations, in with protecting the interests of the individual child. particular with regard to the right of all foreign This principle should override all others, including nationals, regardless of their immigration status, conflicting provisions of migration policy should these to communicate with a consular official of the arise (art. 3 CRC; Committee of the Rights of the Child sending State in the event of arrest, imprisonment, 2013; OHCHR 2010).

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 65 7. Compliance with international human right standards and recommendations

HR Standards/CRC Main gaps Recommendations

Art. 2 – Non-discrimination The definition of discrimination does  Amend the Constitution to at least recognize equal not cover all aspects required by the treatment between national and migrant children States Parties shall respect and ensure CRC; in particular, the Constitution and abolish discrimination between belonger and the rights to each child within their allows for different treatment with non-belonger children jurisdiction without discrimination of respect to those persons who do  Adopt/amend legislation and policies that apply any kind, irrespective of the child’s or not belong, including children, and to all children without any distinction between his or her parent’s nationality, ethnic therefore the status of parents is national and migrant children origin, birth or other status. transmitted to the child

Art. 3 – Best interests of the child There is no legislation in place that  Adopt procedures granting the child the right to recognizes the best interests principle have his or her best interests assessed and taken General comment No. 14 (2013) on and/or policy/procedure for the into account as a primary consideration in all the right of children to have their determination of the best interests of actions or decisions that may affect him or her in best interests taken as a primary the child in immigrations applications any migration procedure (family reunification, consideration in any decision that may and procedures extension of stay and residency, naturalisations, affect their rights etc.) The view of the child is not taken into account in decision-making processes (in particular immigration procedures) that may affect her/his rights

Art. 7 – Registration after birth and Birth registration is granted to most  Amend national legislation to automatically acquire a nationality children born in the Virgin Islands provide children born in the Virgin Islands with without distinctions permanent residence status, granting them full Art. 8 – Preserve the child’s identity, access to rights on equal terms with national including a nationality, name and Very restrictive access to nationality, children family relations, as recognized by law including for children born in the without unlawful interference Virgin Islands of migrant parents

Art. 9 – Right to family relations and Legislation/policies do not explicitly  Fully recognize the right to family reunification in to be with both parents recognize the principle of family case of parents and children living separately States Parties shall ensure that a child reunification and do not address  Approve legislation and/or policies that recognize shall not be separated from his or her family relations and reunification as family reunification as an entitlement and parents against his/her will entitlements establish a clear and transparent procedure to reduce discretion of the decisions taken by the Art. 10 – Family reunification Lack of clear procedures and guidelines Immigration Department In accordance with the obligation under for family reunification and very strict  Include clear information in the procedure and art. 9.1, applications by a child or his or requirements to allow visas to visit the full respect for due process of law (including the her parents to enter or leave a State Party Virgin Islands right to appeal decisions) for the purpose of family reunification  Disseminate information (Internet, etc.) about shall be dealt with by States Parties in High level of discretion in decisions the procedures and requisites to apply for family a positive, humane and expeditious taken by immigration authorities reunification manner. that may result in arbitrary outcomes  Consider reducing requirements (documentation regarding family reunification and and financial) to facilitate visits to the Virgin visas Islands of children of parents living there

66 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories Art. 12 – Right to be heard and There is no policy/procedure Adopt procedures granting the child the right to participate providing for the participation and/ have his or her views heard and taken into account or hearing of children in migration in all cases and decisions that may affect him or her General comment No 12 (2009) on the cases where decisions that may affect in any migration procedure (family reunification, right of the child to be heard children and/or their parents are taken extension of stay and residency, naturalization, by immigration authorities etc.)  Provide information to migrant children that is adapted to their age and cultural conditions, using simple and clear language and the support of an interpreter, if necessary

Art. 24 – Right to health Restricted accessibility for migrant  Guarantee that the NHI does not become a children of non-resident parents bottleneck for those families that cannot afford General comment No. 15 (2013) on the and/or are not legally allowed to be part of it right of the child to the enjoyment of  Abolish imposition of higher fees for medical the highest attainable standard of health services for children based on their and/or their (art. 24) parent’s migratory status  Assess the financial impact of including all children, regardless of their and/or their parent’s General comment No. 4 (2003) on migratory status, in the benefits under the NHI at adolescent health and development in affordable costs the context of the CRC  Ensure that migrants are not asked to show any proof of legal residency (avoid migratory controls in public services)  Adopt a proactive approach to identify migrant children in need of health care, immunizations, etc.

Art. 26 – Right to social security and Restricted interpretation of the Virgin  Repeal/amend the Public Assistance Act and/ social protection Islands Public Assistance Act, 2013 or adopt a regulation that will make it applicable excludes most migrant children to all children regardless of their and/or their Art. 27 – Right to an adequate and/or children born in the Virgin parents’ migratory status. standard of living, including material Islands of migrant parents from social  Adopt a proactive approach to identify migrant assistance and support programmes, programmes and benefits children in need of social services particularly with regard to nutrition, clothing and housing

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 67 Art. 28 – Right to education The Education Regulations (2016) and  Remove any legislative and administrative barriers practice by the Education Department and facilitate and promote integration of migrant Convention against Discrimination in restrict the definition of children children in the education system Education 1960 entitled to education and make it more  Repeal and amend the Education Regulations difficult for migrant children to be in to comply with the non-discrimination clause public schools of the Education Act, the Convention against Discrimination in Education and the CRC, The Education Department requires providing that education is an entitlement for all proof of immigration status and children regardless of their and/or their parent’s communicates the information to migratory status immigration authorities in order to  Ensure that migrant children are not asked to admit an application to schools show any proof of legal residency (avoid migratory controls in public services) There are no programmes available to  Reform practices of the Education Department financially assist parents who cannot that give preference to spaces in public schools afford to send their children to private based on nationality schools  Consider the implementation of a programme to financially assist parents in need who cannot There are no ESL programmes afford to send their children to private schools available to support children from  Consider the need for ESL programmes in primary non-English-speaking countries and secondary schools and reinforce initiatives to assist children from non-English-speaking countries

Art. 7 – Nationality and statelessness Very restrictive and lengthy process to  Align legislation and/or policies with the BNA be able to acquire nationality, including about the time required for resident migrants to Convention relating to the Status of for children born in the Virgin Islands apply for naturalization (five years) Stateless Persons of migrant parents  Review the policy requirement that increased from seven to 20 years to qualify for permanent residency, giving emphasis to those parents with children born in the Virgin Islands  Consider the possibility of amendment of the legislation to facilitate acquisition of permanent residency/ BOTC/ belongership status to children born in the Virgin Islands, in particular to prevent statelessness  Consider reform of the BNA to automatically provide citizenship to children born in the Virgin Islands regardless of their parents’ status (this recommendation requires action by the United Kingdom)

68 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories Lack of ratification of fundamental The lack of ratification of some key Ratify (extend) the following fundamental treaties: human rights treaties treaties is a pending matter that  Convention on the Protection of the Rights affects the rights of migrants including of all Migrant Workers and Their Families children  Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children;  Optional Protocol to the CRC on the sale of children, child prostitution and child pornography  Optional Protocol to the CRC on a communications procedure (This recommendation requires action by the United Kingdom)

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 69 General recommendations

 Incorporate a child rights perspective in migration laws, policies and programmes, together with a rights-based approach, ensuring both that the particular needs and rights of children are expressly included and that all human rights are recognized for all migrant children, irrespective of age, sex, nationality or migration status  Ensure that a child protection perspective prevails over migration and security concerns  Ensure the protection of the child in all migration-related circumstances, regardless of the immigration status of the child or his or her family, and take into account the best interests of the child as a primary consideration in all migration-related initiatives and actions concerning children at all levels  Establish effective procedures to assess, in a child-friendly manner, the risks children would face if returned to their country of origin, or to any risk of ‘chain refoulement’ (i.e., removal to third countries in which the person would be at risk of refoulement), including access to asylum procedures and procedures to establish whether they have been subject to trafficking and other serious human rights violations  Establish favourable family reunification policies that enable children left behind to join their parents, thereby avoiding children being permanently separated from their parents  Consider the feasibility of exempting and/or reducing the burden of the various fees (immigration, work permits and visas) that migrant workers have to pay annually, particularly for minimum wage workers with dependant children  Facilitate and ease restrictions and time requirements to obtaining permanent residence, which might greatly contribute to migrants’ integration, to child development and to the protection of family life  Avoid migration-related detention of parents with children, adopting alternative measures for the entire family and developing policies for placing the entire family in alternative locations  Comply with the consular notification and access obligations set forth in the Vienna Convention on Consular Relations and provide child-friendly consular assistance, as appropriate, including legal assistance  Train all state officials and personnel who come into contact with children in the context of migration, including border control authorities and personnel, to apply a child-sensitive and rights-based approach that takes account of the specific vulnerability, needs and rights of children on the move; the principles of the CRC should be an integral part of this training  Prioritize the collection of age- and gender-disaggregated data across all government departments on the human rights situation of children in the context of migration to make migrant children visible in the Virgin Islands  Undertake a publicity campaign to ensure that migrants accessing any government service are treated with respect and to promote understanding  Establish the Human Rights Commission with powers and functions according to Section 34 of the Constitution that include a children’s ombudsperson or commissioners with a broad children’s rights mandate  Strengthen cooperation mechanisms that foster joint cooperation, dialogue and consensus with countries of origin.

70 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 5

Conclusions

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 71 Although States have the sovereign power to control Yet, in migration-related decisions – including the their borders and formulate migration policies, they also review of migration and international protection have a duty to respect and ensure the human rights of applications, as well as the implementation of migration migrants when enacting and implementing immigration control policies, such as deportation and restrictions on policies and laws. States may establish mechanisms to access to basic rights – the best interests of the child are control the entry into and departure from their territory rarely considered and even at times disregarded. Even in of persons who are not their nationals provided that decisions regarding family unity, when according to the these policies are compatible with the norms for the CRC the best interests of the child should be paramount, protection of human rights established in international these are not systematically assessed, if at all (Committee treaties and standards. This is even more important in on the Rights of the Child 2012). the case of children, where an approach aimed at the comprehensive protection and guarantee of their rights Efforts must also be made to recognize the rights must prevail. of children affected by migration to understand proceedings and to express their views. This implies the Particularly relevant to the situation of children in the need for competent and child-friendly interpretation context of migration is the CRC and its three Optional in migration proceedings. Furthermore, this right Protocols. These treaties enshrine a set of universal requires that the child be informed about the matters, rights that constitute the minimum standards that States options and possible decisions to be taken as well as the must ensure for every child within their jurisdiction. consequences of these decisions. The Committee on the In its General Comment No. 6, the Committee on the Rights of the Child has stressed the close relationship Rights of the Child stated, “the enjoyment of rights that exists between the best interests of the child and the stipulated in the Convention is not limited to children right to be heard, stating that “there can be no correct who are nationals of a State Party and must therefore, if application of article 3 [best interests of the child] if the not explicitly stated otherwise in the Convention, also components of article 12 [right to participate and for be available to all children – including asylum-seeking, the views of the child to be given due weight] are not refugee and migrant children – irrespective of their respected” (Committee on the Rights of the Child 2012). nationality, immigration status or statelessness”. In all four overseas territories, policies and rules International human rights apply to all children in regulating family reunification, temporary visits, the the context of international migration, and in order acquisition of temporary and permanent residence, to comply with their obligations States must treat all naturalization and citizenship are extremely complicated, children as children, first and foremost, regardless of a high level of discretion is used in the decisions taken their or their parents’ migration status, and ensure by migration authorities and there is no appropriate that the principle of the child’s best interests takes dissemination of information about entitlements and precedence over migration management objectives requirements to apply for any of these options. Moreover, or other administrative considerations (Committee there is a double deficit largely present in legislation and on the Rights of the Child 2012). Migration policies public policies that should be urgently addressed: (a) an and procedures must first adhere to this one essential absence of child-sensitive migration-related legislation, prerequisite: that all practices and decisions adopted in policies and practices; and (b) a lack of migration-related relation to the entry, stay or return of a child and/or of issues in laws and policies relating to children that take his or her parents must be determined by the principle into account the special needs and vulnerable situation of the best interests of the child, as per article 3 of the CRC. of migrant children and children affected by migration.

72 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories There is already a large population of migrants in temporary migrants. This has many benefits, including Anguilla, TCI and the Virgin Islands and a good number better chances at accessing the education system, better of them are undocumented, in particular in TCI.63 In chances for parents to bring children still living in their Montserrat, the proportion of migrants relative to the country of origin to the territories and no longer having local population is substantially lower in comparison to pay different fees annually and therefore having more with the other territories, and in fact Montserrat needs money to improve their lives. to increase its population and attract Montserratians to return along with migrants from other countries.64 The instability created by a system of being permanently in transit and the costs of this are detrimental to the well- Many migrants and their families have been living in the being of families and their children. As an example, a territories for several years, most of them holding a very person in the Virgin Islands earning the minimum wage weak temporary status based on annual work permits. and needing a visa has to pay practically one full month’s That is to say, a large part of the population is in a grey salary every year in different fees to the Government area, at risk of finding themselves in an illegal situation (immigration fees, work permit fees and visa fees). It is if they lose their jobs, without any regard for the number incomprehensible why a person in possession of a work of years they have spent peacefully working. Losing permit and already in the territory also has to renew his their job and work permit leaves them in an irregular or her visa at the same time as paying an immigration situation all a sudden and at permanent risk of being fee, and why work permits and visas in general are only deported and in some cases even remanded to prison. valid for a year rather than longer.65

This is particularly the case in TCI, where there is a In the territories, migrants contribute substantially to large population of migrants – mostly from Haiti – the economy, not only through paying taxes and other that has been living in the territory for several years. contributions previously described but also because However, among non-belongers in 2012, only 20 per most of the territories have very low dependency ratios. cent had permanent right of residence, 66 per cent were This means higher tax revenues due to a larger working on temporary work permits and the remainder (14 per population and lower government expenditures on cent) had no legal status (UNICEF 2016). education and health due to fewer children and elderly persons. Nevertheless, migrants are still denied access This situation has worsened with policy changes that to social programmes and other benefits, including the have been adopted recently in some of the territories right to participate actively in public issues (for example, to increase the time needed to apply for permanent the right to vote is reserved for belongers, which actually residence (currently 10 years in Anguilla and TCI, make up a minority of the population in some of the eight years in Montserrat and 20 years in the Virgin territories). Moreover, migrants in the territories do not Islands). Permanent residency is almost the only route feel welcome in general,66 or at least the constant feeling to naturalization – to obtain a BOTC passport and of being considered inferior to the locals is reinforced by stop parents and their children from being considered the instability created by a system of being permanently

63 It should be remembered that many of the people living undocumented 65 Interviews with the authorities in the Virgin Islands seem to indicate that are migrants who have held work permits but lost their jobs, leaving them in the main objective is revenue collection. In fact, following news of a public an irregular situation all of a sudden. budget deficit, the Government has confirmed that from April 2017 it will 64 Under Montserrat’s Population Medium-Term Objective 3 to “Create increase the cost of work permits in all categories. In 2016, the Government initiatives which will facilitate the increase of the population”, one strategic issued a total of 10,434 work permits (including renewals and new permits). action is to “Developing and promote a package of incentives to encourage 66 Qualitative assessment in Montserrat has shown that non-national CARICOM nationals to have their immediate family members residing with children feel excluded by their peers, teachers and other adults, even when them in Montserrat” (Ministry of Economic Development and Trade 2010). they have been in the territory for many years (UNICEF 2016).

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 73 in transit. Migrants are economically vulnerable because Finally, a policy shift is urgently needed with respect to of having to pay more for health treatment, not being children born in the territories who cannot continue eligible for social welfare and facing bureaucratic issues to be considered immigrants and should be granted related to work permits and immigration requirements, the status of permanent resident – where possible by and are usually considered cheap labour. becoming a BOTC – with the effect of being able to benefit from the same rights and equality as children A paradigm shift on the part of the authorities is born in the territories from belonger parents. essential with regards to the population that has been living on the islands for some time: to abandon While States are not obliged, under international the current perspective, which is based entirely on human rights law, to grant their nationality to every control and punishment and not on integration. As child born in their territory, they are required to adopt recommended by the Special Rapporteur on the human every appropriate measure, both internally and in rights of migrants (Bustamante 2009), there is a need cooperation with other States, to ensure that every child to adopt a comprehensive rights-based approach to the has a nationality when s/he is born. The deprivation of management of migration, in particular for families with nationality places children in a situation of increased children, to consider adopting regularization policies vulnerability to human rights violations, including their and to relax rules about work permits – e.g., addressing right to an identity, education, the highest attainable the issue of migrants whose work permits have expired standard of health, family life and an adequate standard (over-stayers) through temporary extensions to enable of living. The right of every child to acquire a nationality them to legally search for work. This would strengthen is guaranteed in international human rights law with social integration and cohesion, ensure the human rights the aim of avoiding a situation whereby the child is of those migrants already in the islands and help attain afforded less protection because s/he is stateless. The state goals such as security and social inclusion. Actual territories must ensure that comprehensive safeguards policies excluding legal avenues for the regularization of to prevent statelessness are incorporated into domestic irregular migrants and prohibiting the access of irregular law and implemented effectively in practice, including migrants to employment have an enormous impact on provisions allowing for the acquisition of permanent the standard of living of children (ibid.). residency and/or nationality by an otherwise stateless child as soon as possible after birth (Human Rights Council 2015).

74 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories References

Abramovich, Victor, Pablo Ceriani and Alejandro Morlachetti, The Rights of Children, Youth and Women in the Context of Migration, Division of Policy and Practice, United Nations Children’s Fund, New York, 2010.

Bakker, Caroline, Martina Elings-Pels and Michele Reis, ‘The Impact of Migration on Children in the Caribbean’, Paper No 4, UNICEF Office for Barbados and Eastern Caribbean, Christ Church, Barbados, August 2009.

Bustamante, Jorge, ‘Report of the Special Rapporteur on the Human Rights of Migrants: Promotion and protection of all human rights, civil, political, economic, social, and cultural rights, including the right to development’, A/ HRC/11/7, 14 May 2009.

Committee on the Rights of the Child, General Comment No. 4 (2003): Adolescent Health and Development in the Context of the Convention on the Rights of the Child, CRC/GC/2003/4, 1 July 2003.

______, General Comment No. 5 (2003): General measures of implementation for the Convention on the Rights of the Child, CRC/GC/2003/5, 27 November 2003.

______, General Comment No. 6 (2005): Treatment of unaccompanied and separated children outside their country of origin, CRC/GC/2005/6, 1 September 2005.

______, (2006) General Comment No 8 (2006): The right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (Arts. 19; 28, Para. 2; and 37, inter alia), CRC/C/GC/8, 2 March 2007.

______, General Comment No 12 (2009): The right of the child to be heard, CRC/C/GC/12, 1 July 2009.

______, General Comment No. 13 (2011): The right of the child to freedom from all forms of violence, CRC/C/GC/13, 18 April 2011.

______, ‘Report of the 2012 Day of General Discussion: “The Rights of All Children in the Context of International Migration”, , accessed 2 May 2017.

______, General Comment No. 15: The right of the child to the enjoyment of the highest attainable standard of health (art. 24), CRC/C/GC/15, 17 April 2013.

______, General Comment No. 14: The right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), CRC/C/GC/14, 29 May 2013.

CMW (Committee on Migrant Workers), General Comment No. 2 on the Rights of Migrant Workers in an Irregular Situation and Members of their Families, CMW/C/GC/2, 28 August 2013.

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 75 Government of the United Kingdom of Great Britain and Northern Ireland, ‘Common Core Document Forming Part of the Reports of States Parties’, HRI/CORE/GBR/2014, 29 September 2014.

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______, ‘Report of the Secretary-General: Impact of the arbitrary deprivation of nationality on the enjoyment of the rights of children concerned, and existing laws and practices on accessibility for children to acquire nationality, inter alia, of the country in which they are born, if they otherwise would be stateless’, A/HRC/31/29, 16 December 2015. Inter-American Court of Human Rights, ‘Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection’, Advisory Opinion OC-21/14, 19 August 2014. Morlachetti, Alejandro, Current Legislation in the British Overseas Territories from a Children’s and Women’s Rights Perspective, UNICEF Office for the Eastern Caribbean, Christ Church, Barbados, 2015.

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United Nations General Assembly, ‘Migrant Children and Adolescents’, A/RES/69/187, 18 December 2014.

References by territory

Anguilla

Anguilla Statistics Department, ‘Census 2011 – Vision Statement’, Ministry of Economic Development, Investment and Commerce, The Valley, Anguilla, 26 June 2012.

Carvalho, Marcio, ‘Situation Analysis of Children in Anguilla’, UNICEF Office for the Eastern Caribbean Area, Government of Anguilla and UK Aid, Christ Church, Barbados, March 2016.

UNICEF Office of the Eastern Caribbean Area and UK Aid, Anguilla: 2015 child protection statistical digest, UNICEF Office of the Eastern Caribbean Area, Christ Church, Barbados, October 2015.

76 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories Montserrat

Government of Montserrat and UNICEF Office for the Eastern Caribbean Area, ‘Situation Analysis of Children in Montserrat’, UNICEF Office for the Eastern Caribbean Area, Christ Church, Barbados, 2016. Ministry of Economic Development and Trade, ‘Montserrat Sustainable Development Plan 2008–2020: Journey to sustainable prosperity’, Government of Montserrat, Brades, 2010. Oye Hesse-Bayne, Lebrechtta, ‘Country Gender Assessment (CGA) Montserrat’, Caribbean Development Bank, Wildey, Barbados, March 2015.

Statistics Department, ‘Census 2011: Montserrat at a glance’, Government of Montserrat, Brades, 2012.

UNICEF Office for the Eastern Caribbean Area, Montserrat Child Protection Statistical Digest, UNICEF Office of the Eastern Caribbean Area, Christ Church, Barbados, 2015.

Turks and Caicos Islands

ECLAC (Economic Commission for Latin American and the Caribbean), ‘The Development of Population Projections for the Turks and Caicos Islands 2012–2027’, LC/CAR/L.501, 20 July 2016.

Government of the Turks and Caicos Islands and UNICEF Office for the Eastern Caribbean Area, ‘Situation Analysis of Children in Turks and Caicos Islands’, UNICEF Office for the Eastern Caribbean Area, Christ Church, Barbados, 2016.

Halcrow Group Limited, Country Poverty Assessment, 2012: Final report – Volume 1: Main report, Government of the Turks and Caicos Islands and the Caribbean Development Bank, May 2014.

Human Rights Council, ‘Report of the Independent Expert on the Situation of Human Rights in Haiti, Michel Forst’, A/HRC/20/35/Add.1, 4 June 2012.

Ministry of Education, Youth, Sports and Library Services, Education Digest 2014/2015, Government of Turks and Caicos Islands, Cockburn Town, 2015.

Strategic Policy and Planning Department, ‘Summary of Population Movements and Intercensal Components of Growth for the Turks and Caicos Islands, 1921–2012’, 2012, , accessed January 2017.

______, ‘Total Population and Population Percentage Breakdown by Country of Citizenship for Census Years: 1990– 2012’, 2012, , accessed 5 May 2017.

Thomas Hope, Elizabeth, ‘The Characteristics and Impact of Haitian Migration in the Turks and Caicos Islands: A study for the International Organization for Migration (IOM)’, Kingston, Jamaica, 2011.

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 77 United States Department of Labor, ‘Findings on the Worst Forms of Child Labor – Turks and Caicos Islands, 2013’, , accessed January 2017.

Virgin Islands

BVI Online, ‘Woman Loses Job, Remanded for Alleged Over-Staying’, 18 January 2017, , accessed 8 May 2017.

Central Statistics Office, ‘Virgin Islands 2010 Population and Housing Census Report’, Government of the Virgin Islands, 1 December 2016, , accessed 5 May 2017.

Government of the British Virgin Islands and UNICEF Office for the Eastern Caribbean Area, ‘Situation Analysis of Children in British Virgin Islands’, UNICEF Office for the Eastern Caribbean Area, Christ Church, Barbados, 2016.

Ministry of Education and Culture, ‘Application for Entry into Virgin Islands’ Schools for Non Virgin Islanders’, undated, , accessed 9 May 2017.

78 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories Annexes

1. Legislation by territory

Anguilla  Anguilla Constitution Order 1982  Anguilla Belonger Commission Act (2006)  Child Abduction and Custody Act (Revised Regulations under Child Abduction and Custody Act R.S.A. C. C32) (2008)  Criminal Code (2010)  Education Act (2012)  Employment of Women, Young Persons and Children Act (2000)  Fair Labour Standards Act (2000)  Health Authority of Anguilla Act (R.S.A. C. H3) and Health Services Fees and Charges Regulations (2010)  Immigration and Passport Act (2006)  Labour Department Act (2000)  Social Protection Act (2015)

Montserrat  Children (Care and Adoption) Act 2016  Community Health Services Regulations (2002)  Education Act (2008)  Education (Amendment) Act, 2014  Immigration Act (2002)  Labour Code 2012  Montserrat Constitution Order 2010  Montserrat Scholarship Act (2011)  Public Health Act (2002)  Public Health Regulations  Social Welfare Act (2002)  Social Welfare Regulations  Undesirable Person’s Expulsion Act (2008)

Turks and Caicos  Education Ordinance (2009)  Employment Ordinance (2009)  Human Rights Commission Ordinance (2009)  Islanders Status Ordinance (2015)  Immigration (Amendment) Ordinance (2015)  Immigration Regulations Permanent Residence  Medical Ordinance

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 79  Migration’s Temporary Detention Ordinance (2009)  National Health Insurance (Amendment) Regulations 2016  The Turk and Caicos Islands Constitution Order 2011

Virgin Islands  BVI Health Services Authority Act, 2004 (No. 14 of 2004) – Hospital Regulations, 2014  Children and Young Persons Act, 2005  Education Act, 2004  Education (Amendment) Act, 2014  Education Regulations, 2016  Health Ordinance, 1977  Immigration and Passport Ordinance (Cap 130)  Labour Code Act, 2010  The Virgin Islands Constitution Order of 2007  Virgin Islands Public Assistance Act, 2013

80 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 2. Questionnaire

1. Statistical information a. How many migrants are in the territory b. How many of them are children? c. Where are they from? Percentages of nationalities of migrant children? d. Do all children migrate to the territory with their parents? Are unaccompanied children migrating to the territory? e. How many children from migrant parents are born in the territory? f. What is the percentage of children born in the territory from migrant parents who have been granted a birth certificate? g. What is the percentage of children born in the territory from migrant parents who have been granted nationality? h. What is the percentage of migrant children (including those born in the territory with migrant parents) who are enrolled in schools? i. What is the percentage of migrant children (including those born in the territory with migrant parents) who have access to health care? j. What is the percentage of migrant children (including those born in the territory with migrant parents) who are enrolled in and/or have benefited from social programmes (social services/social protection)?

2. Policy and legislation a. Which policies are in place to prevent discrimination between migrant children and non-migrant children (nationals)? b. Which policies/plans/programmes are in place to prevent that the distinction between belongers and non-belongers affects migrant children and children born in the territory of non-belonger parents? c. Which policies are in place to prevent children born in the territory from migrant parents to become stateless? d. Which policies/plans/programmes are in place to prevent discrimination and promote access to schools by migrant children and overcome cultural and language barriers? e. Which policies/plans/programmes are in place to prevent discrimination and guarantee access to health services by migrant children? f. Which policies/plans/programmes are in place to prevent discrimination and guarantee access to social protection programmes. Does documentation required to be eligible to social programmes exclude non-belongers? g. Which policies/plans/programmes are in place by immigration authorities to prevent deportation of children? h. Which policies/plans/programmes are in place by immigration authorities to facilitate family reunification of children with their families? i. Which are the conditions for a migrant to be admitted into the territory as a resident? Please describe the procedure for applying for work permits. j. Please describe work permits and residence permits characteristics k. For how long are they valid? l. How often should migrants renew their permission of residence? m. What is the cost (fees) involved in the migration/residence process? n. How much is the cost of work permits and who pays for it? o. Is there an immigration fee? In that case, how much is the immigration fee? Is it annual? p. Do children pay immigration fees?

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 81 q. What are the conditions for a migrant to bring his or her family with him/her? Can migrants performing low-skilled jobs endorse their children to live in the territory? r. Please describe the procedure to apply for family reunification (cases where migrant workers want to bring their children to the territory). Which are the rules and policies in place (formal/informal) to admit or not a child to live with their parent in the territory? s. Please describe the requirements for migrants to bring their family to visit them on special occasions? How does the visa procedure works? What are the rules and policies to admit or not a family member to visit their family in the territory? t. What happens if a migrant loses his/her job? Does s/he loses his/her residence? How much time does a migrant have to look for another job in order to renew his/her work permit? u. What happens in the case of a child born in the territory from migrant parents (non-belongers/ non-BOTC passport) who is stateless and needs to go back to the parent’s country to get his/her passport? Is the child provided with a temporary travel ermit to exit the territory? Is the child automatically allowed to go back to the territory? v. What happens in case migrants overstay their visa? What happens with families with children overstaying their visa? w. In case of deportation, please describe procedures in place to comply with the principle of the best interests of the child and the CRC, which forbids the deportation of children to places where they may be at risk. Do you communicate with authorities of the country of origin to assess the risks of the child before making a decision to deport the child?

82 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 3. List of contact persons and meetings67

Anguilla68 • Dr Bonnie Richardson Lake, Permanent Secretary, Ministry of Health & Social Development • Ms Kiesha Gumbs Bibby, Social Development Planner, Ministry of Health & Social Development • Mr Sanford Richardson, Department of Social Development • Mr Clive Smith, Senior Social Worker, Department of Social Development • Ms Laureen Bryan, Chief Immigration Officer, Immigration Department • Ms Brenda Proctor, Deputy Chief Immigration Officer, Immigration Department • Mr Raphael Evans, Chief Financial Officer, Health Authority of Anguilla. • Nurse Janice Hodge, Coordinator of Community Nursing, Primary Health Care, Health Authority of Anguilla • Ms Ivenia Benjamin, Judicial Department • Ms Aunika Webster-Lake, Labour Commissioner, Labour Department • Mr Kenneth Hodge, Ministry of Home Affairs • Ms Rhonda Connor, Chief Education Officer, Education Department • Ms Susan Smith, Education Department • Ms Oralyn Reid, Naturalization Processing Officer, Attorney General’s Chambers • Ms Yvette Wallace, Managing Partner, Keithley Lake & Associates – Attorneys at Law • Focus group with migrant families

Montserrat69 • Mr Elijah Silcot, Permanent Secretary, Ministry of Health and Social Services • Mr Phillip Chambers, Permanent Secretary, Ministry of Education, Youth Affairs & Sports • Mr Glenn Francis, Director of Education • Ms Colin R Meade, Registrar, Supreme Court • Mr Peter WA White, Director General, Montserrat Customs and Revenue Service • Mr Steve G Foster, Commissioner of Police • Inspector Albert C Williams, Royal Montserrat Police Service • Mr Sullivan, Director of Public Prosecutions • Ms Elaine Ryan, (Ag) Director of Social Services, Child Protection and Safeguarding Specialist • Dr Lowell Lewis, Chief Medical Officer • Mr Richard Aspen, Director, Red Cross • Dr Asha Gopal, Paediatrician, Montserrat Children’s Society

67 The author expresses his gratitude to all the authorities in the territories and other independent professionals and migrant families, whose willingness to meet, answer questions and share information has been critical to the success of this study 68 The author expresses his special gratitude for the invaluable support provided by Dr Bonnie Richardson Lake and Ms Kiesha Gumbs Bibby. 69 The author expresses his special gratitude for the invaluable support provided by Ms Elaine Ryan and Mr Elijah Silcot.

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 83 TCI70 • Ms Bridgette Newman, Deputy Permanent Secretary, Ministry of Home Affairs, Transportation and Communication • Ms Ashley D Adams, Acting Director, Department of Social Development • Ms Perle Brewster, Education Planner, Department of Education • Ms Sharon Taylor, Deputy Permanent Secretary, Ministry of Border Control • Mr Anthony Swann, Deputy Director of Immigration • Mr Alpheus Smith, Assistant Commissioner of Labour • Mr Peter Patrick, Assistant Director of Immigration (Providenciales) • Ms Sigrid Lightbourne, Registrar General, Registration and Citizenship • Dr Victoria King, Acting Department of Heath Services (DHS) • Ms Sutton, Primary Health Care Manager • Mr Daniel Carriere, Chief Executive Officer • Ms Straudy Jackson, Patient Administration Manager • Dr Larry Godfrey, Chief of Medical Services • Dr Hamlet Nation, Medical Officer, National Health Insurance Board • Mr Mark Garland, Deputy Director of Education • Ms Janae Fritz-Pratt, Administrative Assistant, Department of Education • Ms Doreen Quelch-Missick, Director, Human Rights Commission • Mr Donald Metellus, Chief of Immigration & Protocol, Haitian Consulate in Turk and Caicos • Ms Maria Michelle Eustache, Vice Consul, Haitian Consulate in Turk and Caicos • Captain Dereck Miller, Salvation Army • ADRA (Adventist Development and Relief Agency) • Meetings with migrant families

Virgin Islands71 • Ms Petrona Davies, Permanent Secretary, Ministry of Health and Social Development • Ms Tasha Bertie, Deputy Secretary, Ministry of Health & Social Development • Ms Sandra Gardner-Fahie, Senior Administrative Assistant, Ministry of Health and Social Development • Ms Stephanie Benn, Registrar General, Civil Registry and Passport Office • Ms Toya Fahie, Senior Administrative Officer, Civil Registry and Passport Office • Mr Baba Aziz, Attorney General, Attorney General’s Chambers • Ms Geraldine Ritter Freeman, Chief Immigration Officer, Immigration Department • Mr Guy Hill, Deputy Chief of Immigration, Immigration Department • Dr Irad Potter, Chief Medical Officer, Public Health Unit, Ministry of Health and Social Development • Ms Connie George, Chief Education Officer, Ministry of Education and Culture • Mr Raymond Phillips, Director, Central Statistics Department • Ms Janice Rymer, Commissioner of Labour, Labour Department • Ms Stacy Stoutt-James, Deputy Chief Social Development Officer, Social Development Department

70 The author expresses his special gratitude to the invaluable support provided by Ashley D Adams.

71 The author expresses his special gratitude to the invaluable support provided by Tasha Bertie and Sandra Gardner-Fahie.

84 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories • Family, Children Protection Services, Social Development Department • Ms Marian Turnbull, BVI Health Services Authority • Ms Sherri Ann George Smith, BVI Health Services Authority • Antigua & Barbuda (BVI) Association • Nevis Alliance Progressive Society of the BVI • Association of Guyanese in the BVI • The Association of Jamaican Residents (BVI) • Grenada Association • Migrants parents from Dominica, Dominican Republic and Jamaica

Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories 85 86 Study on Children in Situations of Migration and Statelessness in the Caribbean UK Overseas Territories

Published by the UNICEF Office of the Eastern Caribbean Area First Floor, UN House, Marine Gardens, Hastings Christ Church, Barbados Tel: (246) 467 6000 Fax: (246) 426 3812 Email: [email protected] Website: www.unicef.org/easterncaribbean www.youtube.com/UNICEFeastcaribbean August 2017