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:-
JUDGMENT
Background
[1] GLASGOW, J.: This matter concerns an originating motion brought by the Claimant (Mr. Firer) for redress and review of the decisions of the Grenada’s Chief Immigration Officer, Minister of Immigration, and Citizenship by Investment Committee. Mr. Firer alleges breaches of his constitutional rights as a citizen of Grenada. His main complaint stems from the Chief Immigration Officer’s decision to refuse him entry into Grenada on 22nd February, 2023. Mr. Firer claims that the acts of detainment and refusal of entry into Grenada breach his rights to personal liberty, protection of the law, freedom of movement, and freedom from discrimination pursuant to sections 3, 8, 12 and 13 respectively of the Constitution of Grenada.
[2] Mr. Firer also asks this court to estop the defendants from denying that he is a citizen of Grenada, or alternatively to find that he had a legitimate expectation that no decision would be made to remove him from Grenada as done by the Chief Immigration Officer. Mr. Firer pleads that the decision to remove him from Grenada was arbitrary, irrational, and ultra vires the Immigration Act. Mr. Firer further claims that a publication by the Citizenship by Investment Committee (CBIC) in March, 2023 contravenes his right to protection of the law pursuant to section 8 of the Constitution of Grenada, and that the publication was likely to contravene his right to freedom of expression pursuant to section 10 of the Constitution of Grenada. Mr. Firer seeks to recover general and exemplary damages, interest and costs.
[3] The Office of the Attorney General (OAG) vigorously opposes Mr. Firer’s claim. The OAG denies that Mr. Firer is a citizen of Grenada or that any representations had been made to create a legitimate expectation that Mr. Firer would not be refused entry into Grenada. The OAG further avers that as Mr. Firer was no longer in service to the Government of Grenada on the 22nd February, 2023, he could properly be denied entry into Grenada. Further, the OAG asserts that the decision to deem Mr. Firer an undesirable visitor was properly exercised by the Chief Immigration Officer and the Minister of Immigration in accordance with the provisions of the Immigration Act. The OAG refutes the claim that Mr. Firer was entitled to any of the relief sought and asks that his claim be dismissed.
Chronology of Evidence
Mr. Firer’s affidavit in support of Originating Motion
[4] Mr. Firer recites that he was born in Ukraine, is of Jewish origin, and is a citizen of the United States of America (USA), having obtained USA citizenship in 1996. Mr. Firer says he started his career in 1991 as an entrepreneur and businessman, and was later appointed to several diplomatic roles and positions, where he received numerous awards for entrepreneurship and diplomacy. Mr. Firer was engaged bythe Government of Grenada in 2015 after introduction to its former Prime Minister, and during that time, he says he worked with the Grenada Postal Corporation. Mr. Firer was later appointed by the Ministry of Foreign Affairs of Grenada to the diplomatic post of ambassador. Pursuant to that appointment, he was first issued a diplomatic passport by the Government of Grenada on 18th August, 2018. This diplomatic passport was subsequently renewed on 16th January, 2020.
[5] Mr. Firer explains that the diplomatic passport became his main travel document when he worked and travelled on behalf of the Government of Grenada. Mr. Firer states that he was very happy when he received the diplomatic passport, as it confirmed his status as a citizen of Grenada. As ambassador, Mr. Firer says he began working with the Government of Grenada to set up a full diplomatic mission in Moscow, Russia. He recounts that he worked with the Grenadian Government from 2016 – 2019, during which time he attended several international meetings with the Grenadian delegation and assisted the Minister of Foreign Affairs by preparing briefs.
[6] After Mr. Firer’s appointment as ambassador, he opened a full diplomatic mission in Moscow, Russia. The cost of the opening and operating the mission, he says, were fully borne by him. After several discussions with the then Prime Minister, Mr. Firer posits that he became convinced that Grenada would benefit greatly from the mission and embassy in Russia. While stationed in Russia, Mr. Firer was appointed by the Government of Grenada as a non – resident ambassador to Monaco, Czech Republic, Serbia and Kazakhstan on 22nd June, 2020 and to Albania and Bulgaria on 25th June, 2021. Mr. Firer recites the work he purportedly did for Grenada in the economic, cultural, investment and medical spheres. This work included negotiating visa waiver agreements and trade contracts, strengthening diplomatic relations with other countries, promoting economic trade and investment by the creation of various forums, encouraging investors to support Grenada by acquiring properties for the major developments in Grenada and sourcing donations of medical equipment.
[7] Mr. Firer states that from his first visit to Grenada in 2015, he enquired about acquiring citizenship in Grenada. He alleges that he was informed that citizenship could be granted to him based on years of service to the Government. He states that this assurance caused him to dedicate himself to bringing benefits and advancement to Grenada. Mr. Firer claims to have had several conversations with officials in the Ministry of Foreign Affairs, who he says assured him that citizenship would be resolved in his favour. He also claims to have been told that there was no immediate issue, since he was the holder of a Grenadian diplomatic passport, which stated that he was a citizen. Prior to obtaining the diplomatic passport from Grenada, Mr. Firer explains that he used his ordinary USA passport to travel to and from Grenada by himself or accompanied by family. Even after being issued the diplomatic passport, Mr. Firer recounts that he never had issues with entering Grenada.
[8] Mr. Firer claims that he obtained property in St. George’s, and that during one of his visits, he spoke to officials from the Ministry of Foreign Affairs about obtaining a Grenadian driver’s license. Mr. Firer states that he filled out the required form to obtain a Grenadian driver’s license and submitted same to the Ministry of Foreign Affairs. Mr. Firer discloses that he subsequently received his first Grenadian driver’s license on 24th January, 2019, which indicated that he was a citizen. Mr. Firer believes that as the diplomatic passport and the driver’s license delineated on their face that he was a citizen, his citizenship status had been confirmed by the Government of Grenada. For this reason, he says that he did not see the need to have any other document presented to him which confirmed his citizenship.
[9] Mr. Firer further pleads that he became unsure of his position with the Government of Grenada, given that elections had been scheduled to be held in 2022. Mr. Firer testifies that this caused him to engage legal counsel to obtain an ordinary Grenadian passport, as it was clear to him that he held a political appointment. Mr. Firer says he was made aware of several negative statements made by the current administration during their political campaign before elections, regarding diplomatic appointments made by the then Government of Grenada. This caused him to holdgrave apprehension regarding the way he would be treated after the general elections scheduled for June, 2022. After the general elections, Mr. Firer says he attempted to communicate with the newly elected administration, but his attempts were futile, as he received no response to his communications.
[10] In January, 2023, Mr. Firer says that Permanent Secretary in the Ministry of Foreign Affairs, Mrs. McLeish – Hutchinson reached out to him via WhatsApp, and informed him that she wished to convene a meeting to discuss administrative matters about the Embassy in Russia. They discussed his availability, and Mr. Firer says he informed her that he intended to travel to Grenada in February, 2023. Mr. Firer further says that he requested that they confirm arrangements for the meeting after he arrived. On 22nd February, 2023 Mr. Firer indicates that he travelled to Grenada using his USA passport, and when he reached the front of the immigration line, Mr. Firer says that he went to the next available immigration officer and presented his USA passport. He alleges that the immigration officer handed the USA passport to one ASP Leroy Joseph, the Head of the Immigration Department.
[11] Mr. Firer expresses that he felt that Mr. Joseph was waiting for his arrival, as he was standing near to the immigration officer’s booth. Mr. Firer says that Mr. Joseph demanded that he accompany him to the office, asked him if he had the Grenadian diplomatic passport with him and commanded that he hand it over. Mr. Firer indicates that he complied with the demand, as he was unaware of what was happening or what was to come. Mr. Firer recalls that he thought he was being detained by Mr. Joseph, and enquired of the reason for his detention. He alleges that Mr. Joseph responded – “he did not know as we have to wait for some decisions to be made.” Mr. Firer says that he remained with Mr. Joseph in the office for almost 2 hours, and Mr. Joseph left the room from time to time to take phone calls.
[12] While in the room, Mr. Firer professes that he glanced at the screen which displayed the title “Border Control Management System”. Next to his name, Mr. Firer claims, he saw “Watch List Status with a red encircled “X” next to it. Mr. Firer’s name was the only one on the list with the symbo l, and he notes that the column representing nationality next to his name had the letters “GRD”. From his international experience, Mr. Firer claims that he knew “GRD” refers to a citizen of Grenada. After one of Mr. Joseph’s telephone calls, Mr. Firer alleges that Mr. Joseph informed him that a decision was made to deny him entry into Grenada, and no further questions were asked. Mr. Firer laments that he was not served with any document to remove him from Grenada, and complains that at no time prior to 22nd February, 2023 was he made aware or given any notice of any decision to deny him entry into Grenada. He deduces that he was ordered to leave Grenada because he had the diplomatic passport in his possession.
[13] Mr. Firer pleads that Mr. Joseph handed him an economy ticket back to London, but he informed Mr. Joseph that he only utilizes business class when he flies commercially. Mr. Firer says that Mr. Joseph did not respond, and ordered him to board the flight and return to London. Mr. Firer states that he was deeply embarrassed by the way he was treated, and instructed his attorney to write to the authorities and request the grounds or reasons for his denial of entry into Grenada. This was done twice, alleges Mr. Firer, but a substantive response was never received. Mr. Firer’s case is that there is no power to lawfully detain or expel a citizen from Grenada as done by the Chief Immigration Officer. He expresses the view that his detention and removal was due to his appointment by the former administration of the Government of Grenada of the New National Party. Mr. Firer also asks the court to declare that he was detained and expelled from Grenada on account of the contrary political opinions that he was perceived to have held.
[14] The next month on 28th March, 2023, without any prior communication or warning to him, Mr. Firer claims that the CBIC published a notice on their website. Mr. Firer alleges that the publication contained the innuendo that he was involved in activities and practices contrary to law, and he finds the publication to be patently embarrassing, accusative, highly injurious and defamatory to his character. Mr. Firer says he again instructed his attorney to write and seek an explanation and reasons for the international publication by the CBIC, but he says no response has ever been received. Mr. Firer alleges that the international publication was made without due process, in contravention of his right to protection of the law, and the purpose and intent of the publication was to unlawfully restrict his right to freedom of expression.
Ms. Elyan Purcell’s affidavit in response to Mr. Firer’s affidavit
[15] Ms. Purcell is the Officer in Charge at the Immigration and Passport Department. She states that Mr. Firer, not being a Grenadian citizen, arrived in Grenada on 22nd February, 2023 on a British Airways flight. At that time, she says that Mr. Firer was no longer in the service of the Government, as the records showed that Mr. Firer was appointed and later recalled by the previous administration. Upon Mr. Firer’s arrival, she claims that Mr. Firer presented an American passport, and he was also in possession of the diplomatic passport. Ms. Purcell deposes that the diplomatic passport was taken from Mr. Firer, as it was government property. Further, she indicates that Mr. Firer presented the diplomatic passport at the time of his departure from London, even though he knew of his recall as ambassador.
[16] As with all in bound arrivals in Grenada, Ms. Purcell states that Mr. Firer’s record was checked, and he was found to have been declared an undesirable visitor in accordance with section 4(1)(f) of the Immigration Act. She alleges that Mr. Firer was interviewed, refused landing on those grounds, and accordingly informed. She also says that Mr. Firer later flew back to London on the same flight on which he arrived. Ms. Purcell’s answer to Mr. Firer’s claims is that as Mr. Firer was not a citizen, he was rightfully denied entry, and could be removed from Grenada by law. She denies that Mr. Firer was detained, but rather that he was put on hold to board another flight back to London. Ms. Purcell concludes that Mr. Firer’s refusal of entry was not unlawful, arbitrary or contrary to law, and claims that Mr. Firer was never treated as a detainee, as he was afforded all privileges necessary while awaiting his flight back to London.
Mrs. Roxie McLeish – Hutchinson’s affidavit in response to Mr. Firer affidavit
[17] Mrs. McLeish – Hutchinson is the Permanent Secretary in the Ministry of Foreign Affairs, Trade and Export Development. She accepts that Mr. Firer was appointed by the Government of Grenada as an ambassador to the Russian Federation, and as non – resident ambassador to Albania, Bulgaria, Hungary, Monaco, Czech Republic, Serbia and Kazakhstan. Mrs. McLeish – Hutchinson states that Mr. Firer was given a diplomatic passport based on his ambassadorial post to facilitate his movement, but denies that his citizenship had been determined by the diplomatic passport. She equally denies certain aspects of the work that Mr. Firer claims he did during his time as ambassador.
[18] Mrs. McLeish – Hutchinson states that the grant of diplomatic citizen status during Mr. Firer’s ambassadorial posting was a privilege attached to the diplomatic passport, which was withdrawn after Mr. Firer’s recall. Mrs. McLeish – Hutchinson asserts that the Ministry of Foreign Affairs had no record of assisting Mr. Firer with obtaining a driver’s license, and further asserts that a driver’s licence obtained on the status of a diplomatic passport did not qualify Mr. Firer for citizenship. Mrs. McLeish – Hutchinson states that Mr. Firer was never declared a citizen, and no issue of deprivation of citizenship arose. Mrs. McLeish – Hutchinson says that Mr. Firer was recalled by the previous administration as ambassador, and informed of his recall as ambassador to Russia by letter addressed to him on 9th May, 2022. She explains that Mr. Firer was later informed of his recall as non – resident ambassador by letter addressed to him on 29th May, 2022.
[19] Mrs. McLeish – Hutchinson decries Mr. Firer’s allegation that he was terminated after the election in June, 2022. She replies that even if he was terminated then, it is normal for a new administration to review and revamp its policies. Mrs. McLeish – Hutchinson further elucidates that prior to Mr. Firer’s recall as ambassador, he refused to comply with a request sent to all heads of missions to submit monthly financial reports about the operations of their embassies. She says that Mr. Firer resisted his recall and ignored letters sent to him. Further, she says he continued to host activities at the embassy in Russia, in defiance of instructions from the Ministry of Foreign Affairs. In view of Mr. Firer’s actions, Mrs. McLeish – Hutchinson testifies that the Minister of Immigration was well informed of Mr. Firer’s behaviour as a security threat to Grenada, and deemed Mr. Firer an undesirable visitor under section 4(1)(f) of the Immigration Act. Further, the Minister instructed that Mr. Firer be refused entry she says, having deemed Mr. Firer persona non grata due to his conduct towards Grenada before and following his recall. Mrs. McLeish – Hutchinson claims that she contacted Mr. Firer via WhatsApp in 2023 to discuss administrative matters about the embassy in Russia, but avers that there was no arrangement to meet in person, or in Grenada. During that conversation, she states that Mr. Firer only agreed to send the financial information which was being requested from the Ministry of Foreign Affairs. Mrs. McLeish – Hutchinson says the information was never sent.
[20] In relation to the CBIC publication, Mrs. McLeish – Hutchinson explains that she was informed by the CEO of CBIC, Mr. Thomas Anthony, that stakeholders in the international community were making enquiries about Mr. Firer’s involvement and connection to CBIC’s marketing and other services. On this basis, Mr. Anthony informed her that the CBIC could not individually address all of the queries about Mr. Firer. This led to the publication, as the most practical way to reach the CBIC’s local, regional and international community. Mrs. McLeish – Hutchinson explains that Mr. Thomas informed her that this method of publication has often been utilized by the CBIC and was not meant to disparage or embarrass Mr. Firer. Rather the publication simply served, she expresses, to indicate that Mr. Firer was not a marketing agent, given his close association with Grenada. Mrs. McLeish – Hutchinson concludes that Mr. Firer’s averments of owning property, obtaining a driver’s license and diplomatic passport, or providing services to Grenada during his ambassadorship neither qualify Mr. Firer’s acquisition of citizenship nor form a basis for allowing a security threat to enter Grenada. As such, Mrs. McLeish – Hutchinson asks that Mr. Firer’s originating motion be dismissed.
Mr. Firer’s affidavit in response to the affidavits of Ms. Purcell and Mrs. McLeish – Hutchinson
[21] Mr. Firer repeats that he was never informed of the reasons for his removal upon being detained, and says that he only learned of the rationale in Ms. Purcell’s affidavit. In response to Mrs. McLeish – Hutchinson’s affidavit, Mr. Firer states that the diplomatic passport issued to him listed his nationality as Grenadian, and there is no provision in the Citizenship Act which speaks to diplomatic citizenship. Mr. Firer says that he was always led to believe that his citizenship was confirmed.
[22] Mr. Firer also repeats that the Ministry of Foreign Affairs assisted him in obtaining a Grenadian driver’s license. He produced a Memorandum dated 17th January, 2019 signed by the former Permanent Secretary in the Ministry of Foreign Affairs, Mr. Alva Browne to support this allegation. This memorandum was directed to the licensing department of Grenada and requested that Mr. Firer be issued a driver’s license for 3 years. Mr. Firer opines that if there was any illegality, it was on the defendants’ part, since they issued him the official documents. Mr. Firer further contends that if his citizenship was withdrawn, it had to be done legally, and no evidence of this was presented.
[23] Mr. Firer admits receiving the letter of 9th May, 2022 about his recall as ambassador of Russia, but he denies receiving the letter of 29th May, 2022 which recalled his non – resident ambassadorial appointment. Mr. Firer states that no notes of his recall were served on any of the states to which he was appointed. This is since Mr. Firer claims to have continued to receive communication from those states, asking him to present his credentials. Mr. Firer also alleges that he had a conversation with the then Minister of Foreign Affairs, who specifically told him to ignore any communication until the end of elections. Mr. Firer denies that he refused to provide financial information to the Ministry, stating that he in fact provided the financials to the Permanent Secretary in the Ministry. Mr. Firer denies that he was a security risk to Grenada, as he always acted in the interest of Grenada. In conclusion, Mr. Firer maintains that in relation to the CBIC publication, he has never inquired or applied for a CBIC license, provided any quotations to prospective citizens or collected any fees. He says he only assisted the CBIC by working with marketing agents in the region, which the Ministry knew about, through the then Permanent Secretary.
PRELIMINARY POINT – MR. FIRER’S CLAIM FOR CONSTITUTIONAL RELIEF ON THE BASIS OF GRENADIAN CITIZENSHIP
[24] Having read the factual and legal contentions on the originating motion, I enquired of counsel at the hearing on 13th February, 2024 whether Mr. Firer could properly bring a claim for constitutional relief on the basis of his alleged Grenadian citizenship. From Mr. Firer‘s evidence, it was clear to me that he was relying on 2 grounds to establish his citizenship – the presumption of regularity and estoppel under section 114 of the Evidence Act, Cap. 92 of the laws of Grenada. Mr. Firer’s evidence posits that the declarations by the relevant authorities that he was a citizen of Grenada were clothed with the presumption of regularity that applies to decisions made by public authorities.
[25] He further proposes that the Defendants were precluded by section 114 of the Evidence Act Cap. 92 from denying his citizenship, based on the representations made to him and the statements in the official driver’s license and diplomatic passports that he is a citizen of Grenada. Mr. Firer argues that the diplomatic passports and driver’s licence constitute declarations or acts which conclusively indicate his citizenship1. The OAG strenuously denies that Mr. Firer could rely on either ground to establish Grenadian citizenship.
[26] Each of Mr. Firer’s contentions will be addressed hereunder.
{TO BE CONTINUED}