The Real Immigration Crisis

The East Antarctic Ice Sheet is the largest on the planet.  On 15 August, a part of it began to slip into the sea.  At a height of 15,000 feet, the sheet is home to the South Pole.   If the entire thing floated, the result would be a sea level rise of 53 meters world-wide.  Fortunately, this particular August slip was minor.  Over the space of a year a mere 6 inches was added to the height of the world’s oceans.

The effect was not immediately obvious.  There was no tsunami effect.  The smallest of ripples spread out from Antarctica to all the continental slopes facing south.  Cape Town reported the sea rise first.  A few blocks of the city were affected.  No similar immediate consequences for Europe or North America were forecast.  The world relaxed.

Bangladesh in south-east Asia hosted a total population of 185 million, mostly Sunni adherents.  The delta of the Ganges and Brahmaputra rivers was home to 85 million of them.  Most of the delta population lived and farmed a few inches above sea level.

World media did not immediately take notice when twenty hours after the ice slip many delta dwellers were up to their ankles in water.  When the raised water level did not recede, it became apparent to the east Bengalis that they could no longer survive in their ancestral delta lands.  They would starve if they stayed put.  They must move to higher ground.

They had a choice.  They could trek north over the Chittagong Hills and up the Brahmaputra River valley.  This way led to Assam and thence to Bhutan and China.  Or, they could march west up the valley of the Ganges towards Patna.

The ten million minority who chose the first route up the Brahmaputra River Valley eventually approached Arunachal Pradesh on the border of China.  That was a mistake.  China would not accept ten million Sunni Muslims immigrating into their territory.  They had enough experience of that problem.  Urgent steps were called for.

The thermonuclear bomb destroys life and property.  The neutron bomb by contrast is harmful to life but does not destroy property.  It will kill all life within its reach, but leaves the landscape untouched.  Most countries have agreed not to develop the neutron bomb.  But, it has proven too perfect a weapon to be abandoned.  As the Chinese government saw it, the need to remove the threat of millions of Bangladeshis invading China was pressing.  And, it must be done without damaging any of the territory of China.  Three strategically placed neutron bombs soon obliterated the Sunni threat.  China was saved.  The Secretary General of the United Nations fumed against this brutality.  The Chinese said nothing.

The remaining 75 million men, women and children marched up the valley of the Ganges, heading west to India.  The government of India was faced with an invasion.  India too is a nuclear power.  There was the Chinese example.  Four strategically placed neutron devices ensured that, with a minimum of damage to India’s territory, the refugees were nudged on their way westwards.  The International Bar Association expressed outrage.  The 70 million surviving refugees continued through Indian Kashmir towards Pakistan.

Pakistan is also a nuclear power.  Opening a wide path along the Silk Road gave the refugees safe passage to the west without having to bomb them.  There were one thousand miles to go to reach Afghanistan.  Aid agencies flocked to help mollify the human tragedy.  It took months of walking, and many died, but the majority made it.

Medicin Sans Frontieres provided clinics along the way.  UNICEF and Save the Children Fund opened food outlets to feed millions on the march.  The air fleets of the United States, France and the United Kingdom made parachute drops.  A million tons of foodstuffs, water and medicines were delivered.  Hundreds of thousands fell by the way, but the survivors continued through Pakistan towards Afghanistan.

They swarmed the Khyber Pass in late spring.  Afghanistan had no nuclear bombs.  Villagers tried to protect their lands with a combination of scimitar and Kalashnikov.  But, the westward flow could not be stemmed.  As row upon row of marchers were mowed down, the now desperate followers stepped over the fallen bodies and continued onwards to their ultimate destination.  The president of Amnesty International resigned.  Its offices closed as funding dried up.

The border between Iran and Afghanistan was no barrier to Alexander the Great in 327 BC.  It was no barrier now to the surviving 60 million desperate souls.

Word went out from the Supreme Leader.  Let the marchers pass.  With help from the Red Crescent, the majority survived.  Bangladesh was a distant bad memory.  The west and the good life beckoned them onwards.

Turkey was no stranger to millions of refugees arriving from the east.  Recent immigrants had stayed put.  The present visitors wanted no stayover in Turkey.  Their aim was further west.  All that was necessary was for the Turks to open the borders and help usher the crowds westwards, plying them with food and water and all the transport they could muster.

In Europe, preparations to meet the coming invasion proceeded apace.  Bulgaria, North Macedonia and Albania, erected machine gun towers every 100 meters along the borders, marked out by a series of forty-foot fences.

The Prime Minister of Hungary shrugged off criticism with the explanation, “If they breed like rats, let them die like rats.”  His only question was whether there were enough bullets in all of Europe to match the numbers of coming immigrants.

Italy and France positioned armed gunboats every two hundred and fifty meters the length of the Mediterranean Sea.  The only official fear was that gaps in the line would develop as boats returned to shore to rearm.

The European Union showed signs of collapse.  Brussels became a ghost town.  In Geneva, the UN Human Rights Commissioner put a gun to his own head.

Barely nine months after the ice slip occurred, on 1 May, the wave of would-be immigrants topped the range of Anatolian hills that, two thousand five hundred years before, had confronted Xenophon’s retreating army of Ten Thousand Greeks.  As the masses crested the ridge, their ultimate destination was in sight.  The front ranks of the survivors looked down with joy at the banks of the Bosporus. 

It was not the old cry of Xenophon’s Greeks that rang out, “Thalassa, Thalassa, Thalassa.”  Instead, full 50 million cried out in Urdu, “لو ہم آ گئے کوپن ہیگن“

Or, if you prefer English, “Copenhagen, here we come!”

Landlord and Tenant in Anguilla

The law of landlord and tenant in Anguilla is a minefield of bad law.  Neither tenant nor landlord has the protection of a properly thought out statutory regime governing their relationship, unlike in most of the Leeward Islands.

During the 30-odd years that I was called on to advise Anguillian landlords on the proper procedure to evict a non-rent paying tenant, I was constrained to explain there was no better or more effective method than banging a large kettle with an iron spoon outside the bedroom window early in the morning.  It was either that or start a law suit in the High Court.  As for tenants who were being persecuted by avaricious landlords, I explained there was nothing a landlord could do (short of paying an exorbitant legal fee to bring a lawsuit in the High Court) to evict the tenant.  Of course, the use of force on either part was always prohibited by common law.

Today, thirty eight years after I began the practice of “law” in Anguilla in the year 1980, the situation has not changed.  Other than the obscure common law rules, no modern statute regulates the relationship of landlord and tenant in Anguilla.

The Recovery of Rent Act of Anguilla is a very old law of the Colony of the Leeward Islands.  Anguilla has inherited it from the former Associated State of St Kitts, Nevis and Anguilla.  It was enacted in 1890.  It is written in the languorous and discursive style of one of the novels of Jane Austin.  Additionally, its text is dense and impenetrable.

The main object of the Act was to provide a mechanism for landlords to distrain.  This process of ‘distress’ involved seizing the livestock, furniture and goods of tenants who were delinquent in paying their rent.  These goods were sold by a licensed Bailiff to recover arrears of rent.  No court process was involved.  Because it was a self-help remedy, it could lead to ill-feelings if not violence.

This Recovery of Rent Act of Anguilla is obsolete and needs to be replaced by a modern law of distress.  An illustration of its obsolescence is seen in section 6.  This section gives the landlord a remedy where the tenant’s goods have been fraudulently removed or concealed to prevent their being distrained.  In such a case, the landlord may file a complaint in the Magistrate’s Court.  If the complaint is proved, the Court may impose on the tenant, or on the person who assisted the tenant, a penalty of double the value of the goods.  If the person fails to pay the penalty, the Court may commit that person to prison for up to 3 months.  This is a pretty draconian remedy.  It is meant to frighten off any tenant or his aider who is minded to conceal the tenant’s furniture and possessions from the distress procedure.  However, the Magistrate’s jurisdiction is stated to be limited to cases where the value of the goods fraudulently carried away does not exceed EC$24.00.  In other words, the provision is obsolete, and does not apply to modern items of furniture such as a stove or fridge.  This Act needs to be seriously overhauled and or replaced by modern recovery of rent provisions.

The Rent Restriction Act is a 1939 law of the Colony of the Leeward Islands.  It came out of the 1938 labour demonstrations against the exploitative social conditions of the period which adversely impacted the working classes.  In the sugar islands of St Kitts and Antigua, workers occupied mainly rented accommodation in the slums and building “projects”.  Few could afford to own their own home.  The tenancy system of St Kitts, Nevis and Anguilla was then, and continued for decades to be, that agricultural workers paid the sugar estate a nominal sum, perhaps a shilling or 25 cents a year, to occupy a small house lot.  The estate provided building zones in non-agricultural areas designated for workers to erect their small chattel houses.  The occupants on the estates could never own their own lot, and were subject to instant eviction if they fell out with the plantation overseer.  In the towns and villages of the Leeward Islands moveable chattel houses were common.  It was normal to see a home-owner, whether in town or in the countryside, moving house by means of a donkey cart, or later, a truck.

The Rent Restriction Act of 1939 was an essential piece of social legislation.  It was in its time a reforming Act.  It set out clearly the rules for a landlord to give proper notice to quit to a tenant, and vice versa.  As with the Recovery of Rent Act, it was meant to provide modern rules to govern the relationship of landlord and tenant.  It established an inexpensive mechanism for them to resolve their disputes without having to go to court.  It can be said to have provided an efficient form of Alternative Dispute Resolution.

The efficacy of the Rent Restriction Act depended on the intervention of the Central Housing Authority (CHA) in Basseterre.  This was the body established in the 1940s that built inexpensive housing in the “projects” of St Kitts for rental and sale to workers.  The CHA was staffed by administrators who were experts in the construction and rental of public housing.  They were much better placed professionally than lawyers, magistrates and judges to act as a tribunal for the resolution of rental disputes.  The Act gave the CHA the power to act as Rent Commissioners.  It empowered the Rent Commissioners to mediate disputes between landlords and tenants.

However, the Rent Restriction Act applied only to rental properties that fell within the reach of the Act.  Not every rental property fell within the ambit of the Rent Commissioners.  The Act limited their jurisdiction to very small properties, that is, to houses and building land of a value not exceeding EC$10,000.  (Agricultural land was also excluded.  This was governed by the Agricultural Small Holdings Act).  Rental properties worth more than EC$10,000 and falling outside the Act were subject to the jurisdiction of the High Court, or to the Magistrate’s Court in the case of disputes that fell within the very limited jurisdiction of the Magistrates Code of Procedure.  For properties outside the Act, the common law on landlord and tenant applied.  And, only the expensive process of court proceedings was available to such a landlord and tenant who had a dispute between themselves.

The Rent Restriction Act of Anguilla has been superficially revised to delete the references to St Kitts and the Central Housing Authority.  The $10,000 value has been removed, so that theoretically the Act should apply to all rental properties in Anguilla.  However, this admirable aim was not achieved.

Section 2 of the Act limits its applicability to (a) building land; (b) dwelling houses; and (c) public or commercial buildings.  However, unlike in St Kitts in the early the colonial period, there is in Anguilla no mechanism for landowners to set aside part of their property for building purposes.  So far as I know, the Planning Department in Anguilla is not authorised to appoint certain areas as building land to bring them under the Act.  The result is there is no designated building land in Anguilla.

Section 2 makes it clear that the Act does not apply to furnished or partly furnished dwellings.  The Act applies only to unfurnished houses, offices and other commercial buildings.  There must be very few of these in Anguilla.  This provision automatically excludes all of the furnished or partly furnished houses and apartments available for rent in Anguilla.  These are the large majority of rental properties in Anguilla.

Nor is there in Anguilla any public housing department similar to the CHA that can furnish officers with the necessary expertise to apply the technical rules of the Act.  The result is that, to all intents and purposes, the Rent Restriction Act does not apply to rental properties in Anguilla.

It would be helpful if the House of Assembly could widen the applicability of the Act by removing the words “attendance or use of furniture” in section 2.  That simple amendment would make the Act applicable to the vast majority of rental properties in Anguilla, and would provide relief to most landlords and tenants who fall into disputes with each other.

Even if the above limitations were corrected by amendment, the rules for calculating a fair rent and preventing landlords from exploiting tenants and vice versa depend on the existence of a corps of professionals able to act as Rent Commissioners.  These are required to calculate and apply the “standard rent” and the other concepts and rules in the Act.  The Act only works if there is a cadre of trained professionals serving as Rent Commissioners.

So far as I know, no Rent Commissioners have ever been appointed in Anguilla.  In the absence of a mechanism for calculating fair rents, the ADR provisions of the Act fail to apply.  The parties to a rent dispute must instead bring their issues to the courts.  Courts are notoriously ill equipped with tools to assist in the task of mediating between landlord and tenant.  The court process in landlord and tenant disputes is expensive, time consuming, and generally unsatisfactory for all concerned.

The relationship of landlord and tenant in Anguilla over the last 50 years since the Anguilla Revolution can be described as a lawless zone.  Whichever one is stronger or bolder, or has more friends in powerful positions, is usually able to exploit the other, for a time at least.  Both landlords and tenants in Anguilla deserve better than this.

Justice Don Mitchell CBE (Retd)

15 August, 2018

Paper delivered at a Workshop for Training Rent Commissioners in Anguilla