August 5, 2014

Dear Sir,

Setting the record straight: Have PRCs really been afforded a back door to Bermudian Status?

For the last three months there has been heavy criticism of a ruling by the Chief Justice of Bermuda, Ian Kawaley which held that two Permanent Resident Certificate holders should be granted Bermudian Status.

An appeal was subsequently filed concerning that decision but later abandoned by the Government.

Throughout the period which has followed that ruling, it has been alleged that there is now a legislative “loophole”, which will allow PRC holders to obtain Bermudian Status through the “backdoor” and that the process through which one can obtain Bermudian status has somehow been hijacked through “Judge made law” in a manner that is contrary to the intention of the Legislature.

It is against that backdrop that critics of the ruling party are demanding that this “loophole” or “backdoor” be closed until a comprehensive review and reform of the Immigration Act has been conducted.

While robust debate within a democracy can be healthy, I fear that this particular discussion has become misinformed. It is for that reason I now offer my own thoughts on what the decision of the Chief Justice actually said, what the Immigration Act holds, what the intention of the Legislature was and whether the section of the Immigration Act in question truly amounts to a “loophole” which should be “closed” on account of its inadequacy.

The decision of the Chief Justice which gave rise to this debate dealt with an appeal from an Immigration Appeal Tribunal. At issue was whether the Minister in charge of Immigration was wrong to refuse a grant of status to two applicants who were PRC holders on the basis of a technicality.

The Applicants, with the approval of the Minister of Immigration who served under the former Government, applied to the Governor to be naturalised as United Kingdom Overseas Dependent Territorial Citizens relating to Bermuda.

Both applicants having met all of the requirements necessary were then naturalised by the order of the Governor.

The applicants then applied for Bermudian Status pursuant to Section 20B of the Immigration Act under the current Government. That grant was denied by the current Minister of Immigration on the basis of an irregularity.

The specific issue cited by the Minister in rejecting their application was that the applicants failed to seek the prior approval for the grant of Bermudian Status from the Minister of Immigration prior to applying for naturalisation, as was required by Section 20B of the Immigration Act.

On appeal to the IAT and ultimately to the Supreme Court, that argument was rejected as the Department of Immigration had no procedure in place which would allow the applicants to seek that preapproval.

In other words, it was not the applicant’s fault that the necessary forms had not been printed.

It was also found by the Chief Justice that the mechanism by which a long term resident could apply for Bermudian Status had been in place, in the form of Section 20B, since 1989 — though the terms of that section appeared to have been forgotten.

It was against that backdrop that the Chief Justice held that the applicants should have the benefit of relying on Section 20B in applying for Bermudian Status notwithstanding the procedural irregularity that the Minister had complained of.

As for the terms of the Immigration Act, it appears that Section 20B is but one section of Part III of the Immigration Act which provides for the granting of Bermudian Status to foreign nationals.

The key requirements are that the applicant be domiciled continuously in Bermuda since the 31st of July 1989, be a person of good character and be naturalised for UK Immigration purposes.

It is on the basis of the above that I do not see how it can be said that Section 20B amounts to a “backdoor” as it clearly lays out the requirements that must be met if the applicant wishes to be granted Bermudian Status.

Section 20B is not a “backdoor” but rather is the “front door” to obtaining Bermudian Status for those who have met its stringent residency requirements.

I also do not see how Section 20B can be described as amounting to a “loophole” which, according to the Oxford English Dictionary is defined as being “an ambiguity in the law or a set of rules”.

While Section 20B is phrased in technical language, Mr Justice Kawaley rejected the notion that it was “ambiguous” and provided a clear interpretation what the section meant in the face of the Minister’s technical argument that status should not be granted when preapproval was not first sought.

I think that a comprehensive review of the Immigration Act should take place in future. The purpose of that review should be to find a just way to balance the concerns and Human Rights of Current Bermudian Status Holders and those who aspire to become Bermudian.

Pending that review, however, I do not think it would be just or fair to deny long term residents the legal right to apply for Bermudian Status as that right has been in place for some time.

These comments are otherwise offered with utmost respect to all sides of the debate with a view to shedding further light on this difficult issue.

Allan Doughty is a Litigation Attorney who practices with ISIS Law Limited.