A controversial figure who was given a diplomatic appointment under the Keith Mitchell-led New National Party (NNP) administration is EC$60, 000.00 richer based on a high court ruling in his favour in St George’s.
Oleg Firer was denied entry into Grenada by the Congress government of Prime Minister Dickon Mitchell, prompting him to institute legal proceedings against the nearly two-year old administration.
An attorney for the ex-diplomat argued that he was never informed about the allegations made during the NNP rule of Dr. Keith Mitchel that resulted in the revocation of his ambassadorial appointment.
In his ruling in the case, high court judge Justice Glasgow said:-
*Mr. Firer’s claims for constitutional relief on the grounds that he was at the material time a citizen of Grenada are refused.
I have however found that Mr. Firer’s common law right to procedural fairness was breached in that he was not informed of the specific allegations against him which influenced his recall as ambassador prior to his recall and given an opportunity to respond to those allegations.
It is therefore ordered as follows:
(1) The prayers for declarations in the originating motion on the grounds that Mr. Firer was at all times a citizen of Grenada are all refused;
(2) It is declared that the decision to recall Mr. Firer as ambassador of Grenada without informing him of the specific allegations of impropriety against him and allowing him an opportunity to make representations prior to his recall breached his right to procedural fairness;
(3) Mr. Firer is awarded the sum of $50, 000.00 as damages for the breach of his right to be informed of the specific allegations of impropriety against him and allowing him an opportunity to make representations prior to his recall;
(4) No order is made for exemplary and/or aggravated damages; and
(5) Prescribed costs are payable to Mr. Firer in the sum of $10,000.00.
As a public service, THE NEW TODAY reproduces in full the Justice Raulston Glasgow ruling on the Oleg Firer case:-
PRESUMPTION OF REGULARITY
[27] The presumption of regularity is an established common law maxim taken from the Latin maxim of omnia praesumuntur rite et solenniter esse acta donec probetur in contrarium, meaning – all things are presumed to be done correctly until the contrary is proved. The maxim applies to several areas of law, including legislation, and official acts done pursuant to legislation by public officers, including the production of documents. Through the maxim, it is presumed that any acts, decisions or documents prepared by public officials in execution of their public duties are done in accordance with the legal requirements, until the contrary is proved. The presumption of regularity can also be rebutted if there is a manifest, glaring or capricious exercise of discretion. As stated by Lord Diplock in Regina v Commissioners of Inland Revenue ex parte Rossminster.
“Where Parliament has designated a public officer as decision maker for a particular class of decisions, the High Court, acting as a reviewing court … is not a court of appeal. It must proceed on the assumption of omnia praesumuntur rite esse acta until that presumption can be displaced by the applicant for review – upon whom the onus lies of doing so. Since no reasons have been given by the decision maker and no unfavourable inference can be drawn …, the presumption that he acted intra vires can only be displaced by evidence of facts which cannot be reconciled with there having been reasonable cause for his belief …”
THE EVIDENCE ACT OF GRENADA
[28] Section 114 of the Evidence Act6 deals with the issue of estoppel, and the section provides:
“When one person has by his or her declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, otherwise than but for that belief he or she would have acted, neither he or she nor his or her representatives in interest shall be allowed in any suit or proceeding between himself or herself and such person or his or her representative in interest to deny the truth of that thing.”
[29] With respect to Mr. Firer, I have found that the presumption of regularity cannot assist him in his assertion that he is a citizen of Grenada. Further, the provision of the Evidence Act referenced is also of no assistance, as it deals generally with evidence in proceedings. I have found that the presumption of regularity is rebutted on Mr. Firer’s own evidence. The law on the acquisition of citizenship in Grenada will show why Mr. Firer’s claim for citizenship and any constitutional relief on that basis are untenable.
ACQUISITION OF CITIZENSHIP IN GRENADA
[30] The law is clear that the burden of proving citizenship lies on the individual asserting it7. Notwithstanding Mr. Firer’s indications about his service to Grenada, and the alleged representations made to him, the acquisition of citizenship is primarily governed by the Constitution of Grenada, which is the supreme law of the state. A person can acquire citizenship by virtue of the Constitution of Grenada through birth, naturalisation10, parentage11 or marriage to a Grenadian citizen12. Mr. Firer has not shown on his evidence that he falls within any of the categories for the grant of citizenship under the Constitution of Grenada as I have stated above.
[31] The Constitution of Grenada also permits parliament to make provisions for the acquisition, deprivation and renunciation of citizenship by persons who are not eligible to obtain citizenship under the Constitution of Grenada. In this regard, Parliament enacted the Citizenship Act14 in 1976. Sections 5 and 7 of the Citizenship Act outline the criteria for the registration of persons who wish to become citizens of Grenada. The material aspects of sections 5, 7, 8 and 11 of the Citizenship Act for the purposes of this discussion provide:
“5(1) Upon application made to the Minister in the prescribed manner, the Minister may cause any person of full age and capacity who is a Commonwealth citizen or a citizen of the Republic of Ireland to be registered as a citizen if the Minister is satisfied –
(a) That the person is of good character;
(b) That he or she has an adequate knowledge of the English language;
…
(c) …
(d) …”
[32] Moreover, section 7 of the Citizenship Act provides:
“(1) The Minister may grant a certificate of naturalisation to any person of full age and capacity who makes application therefor in the prescribed manner and satisfies the Minister –
(a) That he or she has the qualifications specified in section 5(1)(a) and (b);
(b) That he or she has resided in Grenada throughout the period of twelve months immediately preceding the date of his or her application;
(c) That during the seven years immediately preceding the said period of twelve months he or she has resided in Grenada or has had service under the Government or has had partly such residence and partly such service, for periods amounting in the aggregate to not less than five years; and
(d) That he or she intends in the event of a certificate being granted to him or her to reside in Grenada or to enter or continue in service under the Government.
(2) The Minister may, in such cases as he or she thinks fit –
(a) allow a continuous period of twelve months ending not later than six months before the date of the application to be reckoned for the purpose of subsection (1)(b) as if it had immediately preceded that date; and
(b) allow periods of residence or service under the Government earlier than the seven years preceding the date of the application to be reckoned in computing the aggregate period mentioned in subsection (1)(c).
(3) Notwithstanding the provisions of subsections (1) and
(2), the Minister may, in such special circumstances as he or she may prescribe, subject to the approval of both Houses of Parliament grant a certificate of naturalisation to an alien or British protected person of full age and capacity.
(4) An alien or a British protected person shall not be granted a certificate of naturalisation until he or she takes the oath of allegiance.
Section 8 of the Citizenship Act reads:
“A person to whom a certificate of naturalisation has been granted shall become a citizen by naturalisation as from the date of the certificate.”
Section 11 of the Citizenship Act reads:
“(1) The Minister in such cases as he or she thinks fit on the application of a person with respect to whose citizenship of Grenada a doubt exists, whether as a question of fact or law, may certify that that person is a citizen of Grenada.
(2) A certificate issued under this section shall, unless it is proved that it was obtained by means of fraud, false representation, or concealment of a material fact be conclusive evidence that that person was a citizen of Grenada on the date thereof, but without prejudice to evidence that he or she was a citizen of Grenada at an earlier date.” (Bold emphases mine)
[33] Clearly there is a distinction between an application for citizenship made according to section 5 and section 7 of the Citizenship Act. Section 5 refers to applications by those who may be termed non-aliens, being persons who are citizens of the Commonwealth, the Republic of Ireland, or those married to citizens of Grenada. Section 7 refers to applications made by persons who the Citizenship Act classes as aliens. The Citizenship Act defines an alien as a person who is not a Commonwealth citizen, a British protected person or a citizen of the Republic of Ireland.
[34] From the evidence presented by Mr. Firer, he would qualify as an alien under the Citizenship Act, given his USA citizenship. Mr. Firer has neither indicated that he qualified nor applied for citizenship. Equally he has not shown that the Minister had at any time exercised his powers under section 7(3) of the Citizenship Act in Mr. Firer’s favour. Further, Mr. Firer has neither produced to the court a certificate of citizenship confirming his citizenship status, nor stated that at any time he took the oath of allegiance. There is also no evidence of Mr. Firer seeking recourse to the Minister’s powers of confirmation of his citizenship status under section 11 of the Citizenship Act.
[35] While Mrs. McLeish – Hutchinson denies that Mr. Firer was a citizen, she makes reference in her evidence to the fact that Mr. Firer was granted ‘diplomatic citizenship status while he was ambassador’. It is unclear what law in Grenada creates or permits such a concept, but it does not appear to me to form any part of the laws of Grenada. On Mr. Firer’s own evidence, the presumption of regularity as to his status as a citizen by virtue of the public documents is rebutted. I pause to note my disquiet with the fact that Mr. Firer had in his possession and was able to present to this court, documents issued by public authorities, namely the driver’s license and diplomatic passports which recited on their face that he was a citizen of Grenada. These declarations are not supported by any of the constitutional or statutory requisites to which I have alluded above.
[36] All in all, the facts do not support Mr. Firer’s assertion that he is a citizen of Grenada or that he ought to have been treated as such on the day in question. This finding materially affects Mr. Firer’s claim for constitutional relief on the basis of his being a Grenadian citizen. For the reasons that I have stated above, he was not entitled to be treated as a citizen on the day in question and as such he is not entitled to any of the reliefs for the rights allegedly breached by the defendants as a citizen.
LEGITIMATE EXPECTATION
[37] In the alternative to the finding of citizenship, Mr. Firer asks the court to declare that he had a legitimate expectation that he would not be removed from Grenada in the way that he was on 22nd February, 2023. Based on Mr. Firer’s evidence, I find that this aspect of his claim is arguable.
[38] The law on legitimate expectations has been expounded on fulsomely by Baptiste JA in Patricia Yvette Harding v The Attorney General of Anguilla17, relying on the dicta of Laws LJ in R (Bhatt Murphy) v The Independent Assessor:
“Legitimate expectation is now a well-known public law headline which encompasses two kinds: procedural legitimate expectation and substantive legitimate expectation… legitimate expectation of either kind may arise in circumstances where a public decision maker changes, or proposes to change an existing policy or practice. The doctrine will apply in circumstances where the change or proposed change of policy or practice is held to be unfair or an abuse of power. Unfairness and abuse of power march together and it is notorious that what is fair or unfair depends on the circumstances of the case…
Procedural legitimate expectation arises where a public authority has provided an unequivocal assurance, whether by means of an expressed promise or an established practice that it will give notice or embark upon a consultation before it changes an existing substantive policy. In the paradigm case, the court will not allow the decision maker to effect the proposed change without notice or consultation, unless the want of notice or consultation is justified by the force of an overriding legal duty owed by the decision maker, or other countervailing public interest such as the imperative of national security…
Substantive legitimate expectation arises where the court allows a claimant to enforce the continued enjoyment of the content – the substance – of an existing policy in the face of the decision maker’s ambition to change or abolish it. Thus, it is to be distinguished from a mere procedural right…
Presumably there will either be an authoritative representation of what the relevant policy is and will continue to be, or else simply the fact of a policy being settled and established in practice. A promise or practice: but not the kind of promise or practice found in the paradigm case of a procedural legitimate expectation. In the procedural case, we find a promise or practice of notice or consultation in the event of a contemplated change. In the substantive case, we have a promise or practice of present and future substantive policy. This difference is at the core of the distinction between procedural and substantive legitimate expectation.
[39] In R (Bibi) v Newham London Borough Council20, the court identified 3 questions to be determined in all cases concerning the alleged breach of a legitimate expectation:
“(1) To what has the public authority, whether by practice or promise, committed itself;
(2) Has the authority acted or does it propose to act unlawfully in relation to its commitment? and
(3) What should the court do?”
[40] Mr. Firer seems to be saying that even if he is simply a citizen of the USA, there was an expectation that he would not be denied entry due to the visa waiver arrangements between Grenada and the USA, and that denial of entry or removal from Grenada must be accompanied by cogent reasons and adoption of the correct procedures. In rebuttal, the OAG avers that as Mr. Firer was an alien, he could properly be deemed an undesirable visitor and refused entry.
[41] An alien is defined in the Immigration Act as a person who is not a citizen of Grenada. It follows from the above discourse that Mr. Firer was also an alien by definition under that Act. The Defendants submit that Mr. Firer was denied entry under section 4(1)(f) of the Immigration Act, which provides:
“Except with the authority of the Minister and subject to such conditions as to duration and place of residence, occupation or any other matter or thing as the Minister may think expedient, an immigration officer shall not grant leave to an alien to enter Grenada if the alien is a prohibited alien that is to say –
A person who, from information or advice received from the government of any other country through official or diplomatic channels is deemed by the Minister to be an undesirable inhabitant of or visitor to Grenada.”
Section 4(2) of the Immigration Act reads:
“The decision of the Minister under subsection (1)(f) …shall not be brought into question in any court.”
Section 4(3) of the Immigration Act is also of import:
“Notwithstanding anything contained in this Act, the Minister may prohibit the entry of any alien into Grenada.” (bold emphases mine)
[42] From the cumulative reading of these sections, the defendants would appear to be correct that they acted within the scope of their powers under the Immigration Act by refusing Mr. Firer entry on 22nd February, 2023 as an alien. However, Mr. Firer’s riposte is that at the time he arrived in Grenada on 22nd February, 2023, he was still in the service of the Government of Grenada. Mr. Firer asks to court to find that this fact restricted the manner in which the Chief Immigration Officer was able to exercise his discretion to refuse Mr. Firer entry on the basis of legitimate expectation. The OAG conversely refutes Mr. Firer’s charge that he was in service to the Government at the material time.
[43] It appears that Mr. Firer is trying to invoke the protection afforded to persons in service of the Government as provided in section 7 of the Immigration Act which provides:
“The following persons or classes of persons shall not be prohibited aliens for the purposes of this Act namely –
(a) Members of Her Majesty’s regular naval, military or air forces;
(b) Persons in the service of the Government;
(c) Persons who are duly accredited to Grenada by or under the authority of Her Majesty or the Government of a foreign state, or the wife, family, staff or servants of any such persons;
(d) Any other specified persons or classes of persons to whom this section may be applied by the Minister by Order.” (Bold emphasis mine)
[44] The parties could not agree on the evidence as to whether Mr. Firer was in the service of the Government of Grenada on 22nd February, 2023. This engages the question of whether Mr. Firer was in fact properly recalled from his office of ambassador. The question of whether Mr. Firer was recalled from office would have a substantial impact on if there could be a legitimate expectation, whether procedural or substantive, about the treatment Mr. Firer would be afforded when he attempted to enter Grenada on 22nd February, 2023.
REMAINING ISSUES FOR THE COURT’S DETERMINATION
[45] After assistance from counsel for the parties, it was the court’s view that the question of whether Mr. Firer was in service of the Government of Grenada and more particularly whether he was properly recalled as ambassador could be distilled by answering the following questions:
(1) Whether Mr. Firer’s diplomatic status was revoked or more properly, whether he was recalled as ambassador prior to 22nd February, 2023?
(2) If Mr. Firer’s diplomatic status had in fact been revoked prior to 22nd February, 2023, whether the State was obligated to inform Mr. Firer of his recall?
(3) If Mr. Firer was notified of his recall, was the State required to give Mr. Firer an opportunity to make representations prior to the recall?
(4) Whether Mr. Firer could properly be declared an alien or undesirable person, and if so, whether Mr. Firer was entitled to any due process before he was so declared?; and
(5) Whether Mr. Firer is entitled to any relief?
[46] The parties were invited to file written submissions with authorities and any supplemental evidence on these issues, which will be discussed seriatim. The OAG previously filed written submissions and authorities on 30th January, 2024 and chose to rely on those submissions on the issues. Mrs. McLeish – Hutchinson also filed a supplemental affidavit on 4th March, 2024. Counsel for Mr. Firer filed written submissions and authorities on 4th March, 2024.
TO BE CONTINUED