Sutton v The Attorney General of Anguilla

• Jurisdiction: Anguilla
• Court: Court of Appeal (Anguilla)
• Judge: Byron, J.A.
• Judgment Date: 08 May 1995
• Neutral Citation: AI 1995 CA 1
• Docket Number: Civil Appeal No. 2 of 1993
• Date: 08 May 1995

Court of Appeal

Byron, J.A Singh J.A. Joseph, J.A. (Ag.)

Civil Appeal No. 2 of 1993

Sutton

and

The Attorney General of Anguilla

Appearances:

Mr. C. Abel and Dr. Henry Brown for the appellant.

Mr. E. Mottley Q.C., and Mr. P. Patterson for the respondent

Constitutional - Belonger status — Whether the trial judges was wrong in finding no such status — Appellant contends that even if he did not qualify for belonger status under the Anguilla Constitution he had a legitimate expectation to be granted belonger status — Section 80 of the Anguilla Constitution, 1982 — The appellant did not satisfy any of the requirements under s.80 — Appeal dismissed.

Byron, J.A.

1 On 1st July, 1992 the appellant commenced proceedings in the High Court by way of Notice of Motion. The principle relief he sought, around which the entire matter revolved, was a Declaration that he should be regarded as a person belonging to Anguilla. On 28th July 1993 d'Auvergne J. ruled that the appellant was not entitled to be so regarded under any of the Constitutional provisions relevant to Anguilla, and dismissed his application.

2 The Notice of Appeal contained some 11 grounds of appeal which contended that the appellant did qualify for Belonger status under various provisions of the Anguilla Constitution, and that even if he did not so quality he had a legitimate expectation to be granted Belonger status.

3 During the appeal, Counsel for the appellant conceded that the appellant'sexpectations were based on certain factual misconceptions as to his mother'splace of birth and abandoned the grounds of appeal based on legitimate expectations.

The Factual Background

4 The appellant was born in St. Kitts on 5th October 1942. His father James W. M. Sutton was a native of Nevis and his mother Georgiana Sutton nee Gumbs was born in St. Kitts. His maternal grandmother Olive Hawley was born in Anguilla.

5 The appellant'smother was taken back to Anguilla when she was just about one week old and grew up there until the age of about 24. Consequently, there was a time when the appellant and many of the government officials wrongly believed that she had been born in Anguilla. If she had been, the appellant would have been entitled to the Declaration he sought.

6 The appellant'sparents had their family home in St. Kitts except for the five year period of 1954 – 1959 when his father worked as a teacher in Anguilla. The entire family moved to Anguilla during that period.

7 The appellant adduced evidence to show that he had spent much of his time in Anguilla visiting relatives, between 1949 and 1959 and that he actually lived there full time attending school from 1952 – 1959. The learned trial judge considered the evidence and made a finding of fact that he had been ordinarily resident in Anguilla for the five years between 1954 and 1959. This finding of fact has been seriously challenged on appeal.

8 However, I can see no reason to disturb it because there was evidence to support the finding. In addition it accords with the general principle that the ordinary residence of a child of tender years is in the matrimonial home of his parents. This was expressed by Denning M.R. in Re P. [G.E.] [An Infant] [1965] 1 Ch. 568 at 585:

“But then we are faced with the question, what is the ordinary residence of a child of tender years who cannot decide for himself where to live, let us say under the age of 16? So long as the father and mother are living together in the matrimonial home, the child'sordinary residence is the home — and it is still his ordinary residence, even while he is away at boarding school. It is his base, from whence he goes out and to which he returns.”

9 The appellant returned to St. Kitts in 1959. He deposed to extensive academic and medical training in Canada, Jamaica and Trinidad. In 1984 he became a medical practitioner and returned to St. Kitts. He served as District Medical Officer in St. Kitts from April 1984 to April 1988 when he went to Anguilla.

10 He deposed that he had discussions with various government officials on the basis that he was Anguillan, and that he was told that he could establish a medical practice without obtaining a work permit. This, however, was rebutted by affidavits from officials who denied giving him the alleged assurances as to his status under the Immigration legislation.

11 In any event he did embark upon his medical practice in Anguilla, without obtaining a work permit. He invested in setting up his practice and his home and in addition entered fully into the life of the community.

12 He purchased land without obtaining an aliens landholding licence. He had a weekly radio programme and made television appearances. He taught mathematics, as a volunteer, at a comprehensive school. He formed an association of concerned citizens named Access and sent copies of the minutes of the meetings to the government.

13 On 15th December 1990 Immigration Officers verbally informed him that he needed a work permit to continue working in Anguilla. The appellant did not agree. He made representations to all relevant officials including the Chief Minister, and obtained letters and affidavits of support from several members of the community.

14 His representations were all met with the unambiguous and unanimous response that he needed to obtain a work permit. He exhibited letters signed by the Permanent Secretary in the Chief Minister'soffice and the Permanent Secretary, Labour and Immigration. A dispute developed between the appellant and the government about his status in Anguilla. It is unnecessary to recount its details.

15 On 29th July 1991 the appellant received an official notice rejecting his application for belonger status, and on 4th May 1992 he received an official notice rejecting his application for a work permit. On 15th May 1992 a warrant of arrest on suspicion of being a prohibited immigrant and for contravention of the Immigration and Passport Act was executed on the appellant.

The Constitutional Background

16 In 1967 St. Kitts-Nevis-Anguilla, which had previously been a Colony became an Associated State with the United Kingdom. During the same year Anguilla forcibly removed itself from the association with St. Kitts and Nevis and eventually established a direct colonial relationship with the United Kingdom. In 1976 by Imperial Statutory Instrument No.50 of 1976 the Constitution of Anguilla 1976 came into force. In 1980 the Anguilla Act [United Kingdom] formally enacted the legal separation of Anguilla from St. Kitts and Nevis. In 1982 a new Constitution came into force revoking and replacing the 1976 Constitution.

17 In 1983 St. Kitts-Nevis became an independent nation with its own nationality and citizenship.

18 The point should be made that prior to 1983 the nationality and citizenship of St. Kitts and Nevis, as well as Anguilla was that of British Dependent Territories Citizen as prescribed by the British Nationality Act, 1981. There had never been a legal status of citizen of St. Kitts-Nevis-Anguilla nor the status of Belonger of St. Kitts-Nevis-Anguilla. It was the independence of St. Kitts and Nevis in 1983 which interrupted the application of the British Nationality legislation to St. Kitts and Nevis and caused the creation of the status of citizen of St. Kitts and Nevis.

19 In consequence of the new nationality and citizenship established on...