Citizenship by Investment (“CBI”) refers to the process of becoming a citizen through a government approved investment, usually of a financial nature. This industry first landed on the shores of St. Lucia in 2015. Since officially accepting applicants in January 2016, St. Lucia has welcomed over one thousand persons as citizens via its CBI programme and generated more than sixty million Eastern Caribbean dollars from the investments .
The motives for obtaining citizenship and the perceived benefits of CBI vary. However, the desire to obtain and retain citizenship of a respected, legitimate democracy governed by the “rule of law” is shared by all current and potential citizens, regardless of country of origin.
Rule of Law in the Caribbean Region
The rule of law is at the cornerstone of St. Lucia’s democracy. The preamble to the Constitution of St. Lucia reads, “The people of Saint Lucia believe that all persons have been endowed equally by God with inalienable rights and dignity… and maintain that these freedoms can only be safeguarded by the rule of law.” Similar pronouncements are made in the constitutions of Grenada, Antigua & Barbuda and the remaining CBI offering Caribbean states.
The CARICOM (Caribbean Community) Charter of Civil Society (“Charter”) also provides that the Caribbean states shall respect the fundamental human rights and freedoms of the individual, without discrimination, but subject to respect for the rights and freedoms of others and for the public interest. Additionally, the Charter dictates that no person shall be deprived of their rights except by due process of law. However, the protections envisaged by the Constitution and the Charter are of little value without proper implementation and enforcement; as pronounced by Gandhi, all good thoughts and ideas mean nothing without action.
Implementation of the Rule of Law
The principle of constitutionality mandates that all laws enacted, and all actions of the state, must conform to the Constitution of St. Lucia. A law, procedure or act which violates the Constitution is unconstitutional and void. Thus, fundamental constitutional principles of protection of the law, fairness and due process must, and indeed have, been incorporated into the Citizenship by Investment Act (“CBI Act”) and the Citizenship of Saint Lucia Act (“Citizenship Act”).
Under the CBI Act, registered citizens by investment may have their citizenship revoked in very limited circumstances, as set out in the legislation. For example, if it is found that citizenship was obtained by fraud or deceit. Further, the legislation provides that the State must specify, in writing, the grounds for revocation of citizenship. Persons who have had their citizenship revoked may appeal to the Court.
Similarly, under the Citizenship Act, a citizen may only have citizenship revoked in limited circumstances. For example, if the citizen has been found to have committed treason. Like the CBI Act, the Citizenship Act provides citizens with the right to be heard by an independent body before any revocation of citizenship.
These statutes therefore provide limited and clearly defined circumstances where citizenship may be revoked and, in all cases, are to be interpreted in line with the Constitution. Further, the right of appeal affords the affected party protection of the law and ensures that the constitutional safeguards put in place for citizens are considered by an impartial court.
Enforcement of the Rule of Law by the Courts
The CBI offering Eastern Caribbean states are all under the jurisdiction of the Eastern Caribbean Supreme Court (“ECSC”). This court, established in 1967, is responsible for the interpretation and application of the laws of six member states including St. Lucia, Antigua & Barbuda, and Grenada, and three British Overseas Territories including the British Virgin Islands. Final appeal from the decisions of the ECSC lie to the Caribbean Court of Justice or the Privy Council in the United Kingdom.
The Caribbean Court of Justice has over time given a wide interpretation to a citizen’s right to protection of the law stating: “…the right to protection of the law is a multi-dimensional, broad and pervasive constitutional precept grounded in fundamental notions of justice and the rule of law. The right to protection of the law prohibits acts by the Government which arbitrarily or unfairly deprive individuals of their basic constitutional rights to life, liberty or property. It encompasses the right of every citizen of access to the courts and other judicial bodies established by law to prosecute and demand effective relief to remedy any breaches of their constitutional rights. However, the concept goes beyond such questions of access and includes the right of the citizen to be afforded, adequate safeguards against irrationality, unreasonableness, fundamental unfairness or arbitrary exercise of power.”
Similar pronouncements have been made by the Privy Council, which is St. Lucia’s final appellate court. Two cases from the ECSC exemplify the application and enforcement of the rule of law.
The ECSC, sitting in Antigua and Barbuda, heard one of the only known cases involving citizenship by investment in the region. In that case, the Chief of Immigration confiscated the passports of two persons who had obtained citizenship under the country’s CBI scheme. The ECSC concluded that the confiscation, without due process, breached the citizens’ constitutional right to protection from deprivation from property and ordered that the passports be returned.
The rights of a foreign national who obtained citizenship through marriage were also upheld by the ECSC, sitting in Grenada. The Court found that the fundamental right to equal protection of the law was infringed when the foreign national’s citizenship of Grenada was revoked without him being heard. Significantly, the ECSC declared that the order depriving him of his citizenship was null and void.
The Constitution of St. Lucia provides similar protections, and it is our opinion that the ECSC would undoubtedly reach the same conclusion on similar facts.
The above case law should be welcomed. Current and prospective citizens, whether by investment or otherwise, are guaranteed St. Lucia’s continued observance of the rule of law and its Court’s commitment to due process, fairness and impartiality.
Prepared by Geoffrey Du Boulay, Partner and Keith Isaac, Associate.
FLOISSAC, DUBOULAY & THOMAS provides this information for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship. This guidance note is not intended to be, and should not be construed as, legal advice for any particular situation and you should not act upon this information without seeking advice from a lawyer. If you have any questions, please feel free to contact us at email@example.com.
For more information on citizenship by investment in St. Lucia visit our affiliate’s website, Polaris Citizenship & Investment Consultancy Services Ltd.