An adult suffrage not quite yet universal
The recent Court of Appeal decision of Minister for Home Affairs v Tavares has caused some confusion regarding the rights of British Overseas Territories citizens in Bermuda.
BOTCs are people who have citizenship because of their connection to Bermuda. Most Bermudians are also BOTCs; it is possessing BOTC that entitles you to a Bermuda passport, not Bermudian status. However, nationality law and Bermudian status law do not always go hand in hand. Thus, there are some Bermudians who are not eligible to be BOTCs and, conversely, there is an increasing number of BOTCs who are not eligible for Bermudian status.
The significance of BOT citizenship, beyond being able to hold a Bermuda passport, is that the Bermuda Constitution deems naturalised BOTCs as “belongers” of Bermuda, along with Bermudians. The list of belongers under the Constitution includes:
• Naturalised BOTCs of Bermuda
• Wives of the above — not separated under a formal agreement or court order, and not husbands
• Children under the age of 18 of the above
A few Supreme Court cases have now established that belongers cannot be treated differently under the law in Bermuda. Only Bermudians can vote but, otherwise, belongers must be treated the same in terms of permission to work, owning companies, land ownership, etc.
Various people are eligible to naturalise as BOTCs, including permanent resident’s certificate holders, spouses of Bermudians and PRC holders, and people who have been given permission to reside in Bermuda without restrictions, either on the basis that they can support themselves without working, or because of lifelong ties to Bermuda.
However, the Constitution protects only naturalised BOTCs, not born ones. Naturalisation means obtaining citizenship as an adult who has no restrictions on how long they may live in Bermuda. Anybody who was born in Bermuda before 1983, or after 1983 if a parent is permanently settled in Bermuda, will automatically be born as a BOTC. A child who was born in Bermuda and lived here for the first ten years of their life can register as a BOTC.
Bizarrely, born or registered BOTCs do not have the same constitutional protection as naturalised BOTCs. People who were born and brought up in Bermuda find themselves being forced to leave as adults, or struggle to obtain a work permit. The aim of the Tavares case was to rely on the Human Rights Act to achieve equivalent rights enjoyed by belongers for born BOTCs. This had already been severely cut down by the Government when passing amendments to the Human Rights Act late last year, and the Court of Appeal has now taken away any residual impact by holding that the Human Rights Act doesn’t apply to immigration laws.
There is another case, Barbosa, that is pending in the Privy Council, seeking to address the issue of born BOTCs as a constitutional question.
The Tavares case has no effect whatsoever, however, on the rights of belongers such as naturalised BOTCs, who are able to rely on their belonger status to work and engage in business, etc.
As for born BOTCs, it continues to be a stain on Bermuda’s reputation that there are multiple generations of people, some of whom possess Bermuda passports, who have no rights to live or work in Bermuda without permission, never mind voting rights. Despite various scare stories claiming the floodgates will be opened to thousands, the 2016 census shows 230 adults who were born in Bermuda but do not have Bermudian status — some of whom are in their seventies and eighties.
There are a further 315 children over the age of 10 who may be eligible to register as BOTCs based on birth and ten years of residency. There are a further 798 children under the age of 10 who may become eligible to register as BOTCs if their families stay here until they reach the age of 10. We are not talking about huge numbers.
Bermuda is, as far as I am aware, the only populated British Overseas Territory that does not provide a pathway to status for born BOTCs. Other jurisdictions that have practised discrimination against subclasses of their own citizens have found themselves brought before international human rights courts and tribunals.
In this week, when Bermuda is celebrating 50 years of “universal” adult suffrage, it is worth bearing in mind that this suffrage is not quite yet universal for all of Bermuda’s citizens.
Peter Sanderson is Head of Litigation at Benedek Lewin Ltd, practising in all areas of civil and public law litigation. He represented the respondents in the Tavares case
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