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Top-class education can illuminate pathways

Emotive issue: people march agianst Pathways to Status in 2016

This is the first of a number of pieces offering a critique of proposals made by the Consultative Immigration Reform Working Group.

Before I begin, it is important to recognise the hard work undertaken by the Working Group over the past 18 months. More than a dozen public meetings were held, and written input was solicited for further information on immigration reform. For that I thank them and hope that the Minister of Home Affairs will pay close attention to the principles laid out therein.

I write today to discuss the proposal by the Working Group in relation to a points system for Bermuda status — in relation to obtaining such after being a long-term resident. The Working Group said as follows: “A points system should be introduced to allow balancing the criteria and numbers ... to meet the current needs of Bermuda’s population, infrastructure, growth rate, economic factors and sustainability, and that a maximum number of grants of Bermudian status per annum should be established.”

I do not agree with a points system for status and, accordingly, it is important to explain why.

Before I do, it is useful to discuss how immigration systems are generally structured. Most countries adopt three tiers of policies for the admission of non-nationals:

1, Short-term immigration through time-limited work permits and visas. These can cover temporary jobs, seasonal employment or work in fields where there are skill shortages locally. This is the most familiar to Bermudians.

2, Long-term immigration for persons, which is variously described as “permanent residency” or “indefinite leave to remain”, et al. There are various sub-tiers here, but it can be broadly divided into three categories:

A, General and economic — persons who are identified as important contributors to the host society, and the category is increasingly marked by economic immigration

B, Family — persons who are sponsored for immigration because of a family connection to an existing permanent resident or national

C, Humanitarian — for example, refugees escaping political persecution or where a person is born and would otherwise be stateless

3, Acquisition of citizenship, that is to say, the full integration of the non-national into the body politic of the host society. This can be through the naturalisation of non-nationals or through the registration of persons who may otherwise have a legally recognised entitlement to citizenship.

Often, although not always, a non-national will move through the three tiers in sequence. For example, you are vetted for a short-term permit, then for permanent residency and then, finally, for acquisition of citizenship. Countries that increasingly rely on immigration for their future wellbeing are finding more ways to try to jump-start the process for migrants whom they particularly want to attract. This is especially true for family classes of immigration.

Where they are used, points systems are a precursor to long-term immigration, falling into tier 2(A) mentioned earlier. They are most prominently used in Australia, Canada and Britain for measuring and ranking those persons who apply to that country to immigrate as economic migrants and as skilled workers. Points are generally awarded in differing proportions, based on, inter alia, qualifications, skill level, experience, local sponsorship, community connections, language skills and available funds to maintain oneself in the host society. When successful, they become permanent residents.

Points systems are not used to measure whether someone is qualified for citizenship after having been a long-term resident of a country. (See tier 3). In fact, the British points system was introduced in 2008 to replace its work-permit and permanent-residency scheme altogether (ie, tiers 1 and 2). They are also not used generally for family and humanitarian categories of immigration, although the presence of a family connection usually does count for additional points. In my research, both before and since Pathways to Status, I never found a country that used a points system for citizenship.

Put into Bermudian terms, a points system, as understood internationally, would lead to exempting someone from work permits altogether based on the sorts of criteria set out in the Working Group’s report, and landing them in Bermuda with a permanent resident’s certificate. It would never be used for the grant of Bermuda status.

Australia, Canada and Britain offer citizenship to certain preapproved persons after a definitive period of time in the wake of them having already emigrated from their own countries as a result of accumulating points before arrival.

After they have been in the country for a definitive period of time, the person can apply and will be granted citizenship thereafter — say between three and seven years, provided they are free of a criminal record and can pass a citizenship test, which usually can be taken again and again until it is passed.

They are not subjected to interview as to whether they are good enough after that period of definitive-term residency and they are not subjected to tests of whether they have made a “contribution” to that country or are “committed”.

The reason for that is there is an inherent assumption that if someone has remained in a country long enough, they are already committed to that country. (Any assessment of “contribution” would occur in tier 2, ie, for the admission of immigrants on a long-term basis. This could take the form of points allocated for this or through various “investor class” programmes.)

In Bermuda, we already have in place a screening process for economic migrants, which is in fact similar in its intent to a points system. But unlike other larger jurisdictions, the typical work permit-holder is an economic migrant or the family member of one. These are people who come here to work based on the economic needs of Bermuda. They are brought in to fulfil a role.

To do so they must, according to Bermuda immigration policy and law, have the requisite expertise and take a position that a Bermudian cannot or will not fill. They are vetted by Bermudian civil servants at the Department of Immigration, vetted by a Bermudian Immigration Board and in many instances vetted again by a Bermudian minister responsible for immigration.

They are vetted for their skills, education, criminal record and health — all of which in much larger jurisdictions would look very similar to a points system. Ours is actually far simpler. If a role needs to be filled, we seek an immigrant to fill it when no qualified Bermudians are able, or willing, to fill that role. When the role is gone, or the work dries up, the economic migrant leaves Bermuda, which is why 5,000 to 8,000 economic migrants left during the last recession.

To remain in Bermuda after a one to five-year work permit expires — and many job categories are restricted to one-year permits only — that position is advertised so that a Bermudian has the opportunity to get that job held by that economic migrant.

If a permit is renewed year after year after year, and that economic migrant ends up being in Bermuda for an extended period of time, then they would have fulfilled a number of the criteria laid out by the Working Group. In particular, a “commitment to Bermuda” for their length of time here, a “contribution to Bermuda” — at the very least economic — “length of residence”, their knowledge would be pretty high in respect of “Bermuda history, culture and society”, and they probably would have children here, so a “family connection”.

In short, we have a robust vetting system that ultimately allows some economic migrants to remain in Bermuda for a long period of time.

The main difference between the work-permit regime and most points systems is that Bermuda does not preapprove any applicants for permanent residency.

So, now you’ve read this and I hear you say, well Bermuda is really small and we are different, so we can’t look only at large jurisdictions — it is comparing apples with oranges. You would be right to a degree. But, as I have explained, a points system simply will not work in granting status. Adding in an interview introduces some further subjectivity, which increases the possibility of court challenges in future.

So what happens in, say, the Cayman Islands? People who have been resident in Cayman for 15 years or more — or after seven years of marriage to a Caymanian — and become naturalised can obtain Caymanian status. You must provide evidence that you have not contracted HIV/Aids, you must be free of criminal convictions and you must provide references attesting to your good character.

There is no additional criteria of interview, or tests or cap — although to obtain permanent residency after eight years, there is a points system introduced in 2015 that requires you to show you have invested in Cayman, purchased property and have a certain income level, among other matters.

In short, if you have been in any jurisdiction for 15, 20 or 25 years, you are normally pretty ensconced and committed to the community. Remember, long-term residency and status are different, and Cayman allows for long-term residency after eight years only and status after 15.

No one can say the existing Bermuda work-permit process is perfect. We are all aware of instances of abuse by a minority of employers to not employ Bermudians. We can all point to examples of a minority of bosses who refuse to promote Bermudians, and we are all aware of some unfair work practices by rogue employers who pay too little to their expatriate staff, thereby ensuring Bermudians will never take a position — which is why I introduced severe civil and criminal penalties for such behaviour.

But that is the issue that needs to be addressed, forcefully and continuously. The Department of Immigration must ensure that hiring practices are fair, that employers are ensuring Bermudians are trained, but more importantly we must ensure that we have a first-class education system so that Bermudians are able to take the opportunities on offer. This will ensure that the number of economic migrants is reduced and that the number of people with, say, 20 years’ tenure in Bermuda diminishes.

In other words, fix the front-end issues that need fixing; not say to a person who has been in Bermuda for 20 years or more that now they have to pass what ends up being a suitability test having already been deemed suitable by the Government maybe 20 times already based on work-permit renewals.

Set definitive criteria for citizenship made up of the following:

• Naturalisation

• Twenty years’ residency

• Good character and conduct

• Free of serious communicable disease

• Citizenship test

Interviews and caps will end up before the courts and lead to allegations of political favouritism, which is what the United Bermuda Party did 30 years ago.

The world has moved on. We must move on in Bermuda. No caps, no inherently biased interviews. It is the Kiss principle — “Keep it simple, stupid!”

We must accept that some people are here for the long term and do the right thing while cracking down on rogue employers and educating our people to give them the tools in a global world to compete and be the best we can be. That is where the real issues lie ... our very survival depends on it.

I will comment further in due course on the report by the Working Group, relating to permanent residency and mixed families.

Michael Fahy was the Minister of Home Affairs from December 2012 to May 2016