Malene Alleyne | Standing with Haitian refugees

The Ministry of National Security’s (MNS) refusal to grant asylum to 37 Haitian asylum seekers is heartbreaking. Decision letters were delivered to the Haitians at around 9 p.m. on February 27, under the cover of darkness, like much of the process thus far. I waited with the group that night, not just as their attorney-at-law, but as a human being who desperately wants to honour the dignity of persons who journeyed across treacherous waters to seek refuge at our shores.

PROCEDURAL FLAWS

The MNS’s decision exposes significant due process issues that continue to plague the asylum procedure, with devastating consequences for the applicants. The decision was made without giving the applicants an opportunity to be heard before the Eligibility Committee, and the applicants are still being excluded from access to basic information, such as the composition of the Committee, the Committee’s recommendation to the MNS, and the documentation that informed the decision.

Importantly, it is unclear whether the best interests of the child were taken into account, especially since at least one child is not accounted for in the decision letters. More broadly, based on my review of the letters, the reasons are inadequate and were not written in the applicants’ native language, all of which undermine their right to appeal.

DETERIORATION IN SITUATION

This development marks a significant deterioration in the already dire situation of Haitian migrants in Jamaica. Since July 2023, over 120 Haitian migrants arrived in Jamaica by boat amid the devastating crisis in Haiti. Of that number, over 80 have been forcibly returned to Haiti without being allowed to access an asylum procedure or communicate with legal counsel.

Meanwhile, Haitian nationals who have been living undisturbed in Jamaica for years are being arrested on suspicion of illegal entry, detained without access to a lawyer, and separated from their Jamaican families. In one such case, young children were ripped from their homes and placed in state custody for a prolonged period following the detention of their Haitian mothers on suspicion of illegal entry.

WILFUL DISREGARD FOR INTERNATIONAL LAW

I fear that the MNS’s decision may be construed by the international community as Jamaica’s wilful disregard for international law and policy, including the UN’s non-return advisories for Haiti. Jamaica is a State Party to the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which prohibit refoulement – the forced removal of people to a place where they may face risk of persecution, torture or other serious or irreparable harm. To safeguard the principle of non-refoulement, the UN Refugee Agency has called upon States to suspend the forced return of Haitians, warning that the situation in Haiti is dire and not conducive to forced returns.

In November 2022, the UN High Commissioner for Human Rights warned that “uremitting armed violence and systematic human rights violations in Haiti do not currently allow for the safe, dignified and sustainable return of Haitians to the country.” In November 2023, the UN High Commissioner described the deteriorating situation in Haiti as “cataclysmic”, warning that “with terrible violence against the population expanding – within and outside Port-au-Prince – and the inability of the police to stop them, the much-needed Multinational Security Support mission needs to be deployed to Haiti as soon as possible.” Last week, the Inter-American Commission on Human Rights similarly expressed alarm about “the intensification of violence in Haiti”, including reports of women and girls being brutally raped, tortured and kidnapped by gangs, with sexual violence being used as a weapon of war.

Given this evidence, it is disturbing that Jamaica would seek to return Haitian asylum seekers, including women and girls, without at least ensuring due process in the assessment of their claims. This is particularly troubling since the Government of Jamaica’s Refugee Policy provides that applicants who are not recognised as refugees may nonetheless be granted exceptional leave to remain in Jamaica on humanitarian grounds.

The silence of the Caribbean Community (CARICOM) is also cause for concern, especially given the goal of free movement under the Revised Treaty of Chaguaramas. Pursuant to that treaty, Haitian nationals, as CARICOM nationals, have a right of hassle-free entry and automatic stay of up to six months in CARICOM member states, the right not to be discriminated against on the basis of nationality only, and the right to most favoured nation treatment. The Caribbean Court of Justice has emphasised that the right of entry includes procedural safeguards attendant upon that right, including the right to consult with an attorney or consular official, especially given the “sense of belonging” that Community Law seeks to instil in CARICOM nationals. Contrary to that standard, Haitians across the region are disregarded, treated as disposable, and subjected to an escalating cycle of migration-related abuse, including collective expulsions and arbitrary detentions, which are prohibited under international law.

PATH FORWARD

The Government of Jamaica must urgently reform the asylum procedure and adopt a rights-based response to Haitians fleeing persecution, with strict adherence to the principle of non-refoulement. The Caribbean Community – with the support of the international community and multi-stakeholder groups – must further establish a comprehensive, regional approach to ensure the protection of Haitian refugees and asylum seekers in line with principles of humanitarian assistance, protection, cooperation, and international solidarity.

To operationalise this approach, it is imperative that governments and stakeholders establish a regional inter-agency coordination platform for Haiti to implement humanitarian, protection, and socio-economic integration activities to assist the situation of Haitian refugees and migrants.

We must not turn our backs on Haiti.

Malene C. Alleyne is an international human rights lawyer with Freedom Imaginaries. Send feedback to info@freedomimaginaries.org