THE ACT OF "SOFT" DENATIONALIZATION OF JAMAICAN CITIZENS LIVING OVERSEAS

RECENT PROPOSAL BY THE ECONOMIC GROWTH COUNCIL TO AMEND THE IMMIGRATION ACT IS A CONTINUATION OF THE PNP's "SOFT" DENATIONALIZATION OF JAMAICANS LIVING OVERSEAS.

“War, revolution, and ethnic hatred have long wreaked havoc on the nationality of individuals. Soviet Russia, Nazi Germany, Fascist Italy, and post-WWII Czechoslovakia, Poland, Yugoslavia, and Japan all passed legislation expressly denationalizing large segments of their populations.' More recently, the Dominican Republic, Ethiopia,' and Mauritania have implemented ethnically-based expulsion programs that in effect functioned as denationalization programs.” 

Under International Law, the Government of Jamaica (GoJ) can apply "the dominant and effective nationality test in situations of dual nationality" to deny you entry and treat you like non-Jamaican if you do not possess a Jamaican passport upon entry. Over time, successive changes to the Immigration Act without the express statement of senior government official in support of dual citizenship will effectively denationalize all Jamaicans living overseas and not holding a Jamaican passport or any travel document not having the same rights and authority as a passport due to lack of “binding state action” under international laws.

It is for this reason that the Prime Minister, Andrew Holness is silent on the issue of citizenship rights for overseas Jamaicans under the new proposal to issue migrant cards (visa) to Diaspora Jamaican. "Nonetheless, I argue that passport issuance is a suitable triggering event for the law of binding state action. The common core of these doctrines is that certain representations made by a state can in the future have a binding effect on that state. It is clear that, at a minimum, representations made by heads of state'" and senior government officials with a responsibility for foreign affairs"' can have this effect. It is also clear, however, that representations made by lower level government officials operating outside their sphere of competence will not have this effect. Thus, the operative question becomes whether issuance of a passport is more like a representation by a senior government officer operating in his or her area of competence or more like a representation by a lower level official acting outside of his or her authority."

Suffice to say the Government of Jamaica has been engaged in "soft" denationalization of Jamaicans with dual citizenship. Prior to December 2015, I could fly on a one-way ticket to Jamaica using my Canadian Passport, since page 1, clearly states that I was born in Jamaica and a dual Citizen under the British Commonwealth Agreement. In January 2016 tried to purchase a one-way ticket and was refused on the basis of my Canadian Passport. The ticket agent for Air Canada demanded a government of Jamaica documentation or ID and fortunately, I had a Social Insurance Card Issued by the Government.

In recent initiatives recommended by the Economic Growth Council (EGC) appointed by Prime Minister Holdness contains proposals to amend the Immigration Act to the effect:

“Amend the Immigration Act to facilitate the issuance of a special “Global Jamaican” Immigration Card for members of the Jamaican Diaspora. This is similar to what several countries have done for their Diaspora populations who no longer have their home country citizenship. All persons born in Jamaica or of Jamaican parentage or heritage would be eligible to hold the card and would provide all the benefits of Jamaican passport holders (except the right to vote), and allows the cardholders the right to stay for an extended period in Jamaica. The purpose would be to encourage the Diaspora to return, get involved, and invest in Jamaica.” –EGC

“Minister of Foreign Affairs and Foreign Trade Senator Kamina Johnson Smith has said that the Government is looking to amend the Immigration Act to give overseas Jamaicans certain benefits akin to holders of a Jamaican passport. ...She said the move was proposed by the Economic Growth Council (EGC) in response to the concerns of overseas Jamaicans about the hassles they often face when they come home to do business.” 

"Under Chapter two of the Jamaican Constitution, persons born in Jamaica and persons born outside Jamaica of Jamaican parents have an automatic right to Jamaican citizenship. Applications for Jamaican Citizenship are done in different categories. "

These include applications for citizenship: 1. Descent. 2. Marriage.

3. naturalization, 4. Registration (Commonwealth) and

5. Registration (Minor)- JAMAICA INFORMATION SERVICE

PASSPORTS AND DUAL NATIONALITY (page 347)

Adam I. Muchmore, Passports and Nationality in International Law, 10 U.C. Davis J. Int'l L. & Pol'y 301 (2004).

Because current international law applies the dominant and effective nationality test in situations of dual nationality, it is necessary to take account of the test in applying the law of binding state action to the nationality of passport holders. Under this test, an individual who is a national of State A under State A domestic law and also a national of State B under State B domestic law will be a national of one state but not the other for purposes of international law. In this case, it would be inconsistent with international nationality law to apply the law of binding state action to the country of non-dominant nationality, if the internal laws of that country do not recognize dual nationality.

For instance, assume an individual holds passports of both States A and B but is a dominant and effective national of State B. If the individual were traveling in a third state, State C, State A would not be able to assert diplomatic protection over State C's objection." " If State A recognizes dual nationality, it is appropriate to apply the law of binding state action. The passport holder's possession of an additional nationality does not have any effect on his or her continued possession of the nationality of State A. " If State A does not recognize dual nationality, its issuance of a passport to the individual is an assertion not only that it believes the individual to be a State A national, but that it does not believe the individual to be a State B national (or a national of any other state). In this case, an individual holding a passport from another state no longer fulfills one of the basic conditions of State A nationality that he does not possess the nationality of any other state. Therefore, if State A does not recognize dual or multiple nationalities, the law of binding state action should not be applied to hold State A responsible for a person who is a dominant and effective national of State B. "It does not matter whether State B recognizes dual nationality, because State B is the state of dominant and effective nationality. It will always be prevented by the law of binding state action from denying the nationality of one of its dominant and effective nationals.

Nonetheless, I argue that passport issuance is a suitable triggering event for the law of binding state action. The common core of these doctrines is that certain representations made by a state can in the future have a binding effect on that state. It is clear that, at a minimum, representations made by heads of state'" and senior government officials with a responsibility for foreign affairs"' can have this effect. It is also clear, however, that representations made by lower level government officials operating outside their sphere of competence will not have this effect."7 Thus, the operative question becomes whether issuance of a passport is more like a representation by a senior government officer operating in his or her area of competence or more like a representation by a lower level official acting outside of his or her authority.