This is an adaptation of a lecture lawyer Wendell Hollis recently delivered entitled “Independence for Bermuda Nationality, Visas and Passports”. <$>

The most current written authority on the subject is the Report of the Bermuda Independence Commission, dated August 2005. In my research for the lecture, it became readily apparent that relatively few Bermudians have actually read it.

The Report itself is some 73 pages in length but with all of the Annexes, copies of submissions, etc., amounts to over 600 pages.

For reasons that I believe will become apparent, I would suggest that the issue of citizenship and visa matters are of the utmost importance and perhaps one of, if not the most significant matter of concern, in the independence debate. That having been said however, it is of note that whilst the Report itself is 73 pages in length, only approximately four pages in total deal with the question of citizenship and visa matters in an independent Bermuda and even then, there is a great deal of duplication and repetition. In my view, this is a matter of too great of importance to receive so little attention.

In reviewing the present situation and putting it in context, it is necessary to review the historical development of Bermuda’s relationship with the United Kingdom in so far as it relates to nationality and citizenship.

Although it may be obvious to some, Bermuda status is not in fact a nationality but rather a local designation applied by the Bermuda government. Technically, Bermudians are presently British Overseas Territory Citizens.

Bermuda is now officially a British Overseas Territory. This title has varied over the years from Colony to Dependent Territory, to now a British Overseas Territory.

At one time, Bermudians were not subject to any significant control in entering Britain.

The post-Second World War period saw the growth and availability of easy air travel and the availability of the masses to travel far more quickly and cheaply.

In the era of Enoch Powell, fearing a tidal wave of immigrants from the much poorer Commonwealth countries in the far East, Africa and the Caribbean, the United Kingdom brought into effect the Commonwealth Immigrants Acts of 1962 and 1968 which introduced controls which greatly restricted the ability of Commonwealth citizens and citizens of the United Kingdom and Colonies from the dependant territories to settle in the United Kingdom.

Following these acts, the Immigration Act 1971<$> of the United Kingdom was passed. This Act introduced the concept of the Right of Abode in the United Kingdom and ended the right of freedom of movement to the United Kingdom of Commonwealth citizens, including people from dependent territories (such as Bermuda).

In 1977, a consolidated paper on British nationality proposed that the status of citizenship of the United Kingdom and Colonies be divided into two new categories.

1. British citizenship for citizens of the United Kingdom and Colonies, with the right of abode in the United Kingdom; and

2. British Overseas citizenship for those who were subject to control under the Immigration Act 1971<$>.

Following representations received on behalf of the overseas territories, it was agreed that an additional category would be introduced in recognition of their special status.

The British Nationality Act 1981<$> accordingly replaced citizenship of the UK and Colonies with three new forms of status:

1. British citizenship, for those with the right of abode in the UK;

2. British Dependent Territories Citizenship for those who belonged to dependent territories; and

3. British overseas citizenship for people not connected with either the UK itself, or any of the remaining dependent territories.

The 1981 Act also made provisions for people who were from Gibraltar to acquire British citizenship and a separate Act gave British citizenship to the Falkland Islands in 1983 after the end of the Falkland war.

It is of note that for those countries that went independent from the United Kingdom prior to 2002, their citizens were not afforded the opportunity to have full British citizenship before they chose to pursue a course to Independence.

By the 1990s, with the expectation that Hong Kong would return to Chinese control, it became known that Britain was considering granting full nationality to all British Dependent Territory Citizens once Hong Kong was no longer in the picture given the vast reduction in the number of people involved following Hong Kong’s departure from the group.

It was at this point in history, that the former UBP Government, under the then leadership of Sir John Swan, following a narrow victory in the October 1993 election, determined to pursue a course towards independence. Going into the 1993 election, I had been a Senator in the UBP Government and following the election, remained a member of the UBP but out of the Government. I was so concerned about the unexpected and previously unannounced turn towards independence by the UBP, that I formally resigned from the UBP and thereafter actively participated with a group that opposed the independence initiative.

My strongly held view at the time was that it made no sense for Bermuda to proceed with a course to independence until such time as the possibility of acquiring full British citizenship had been explored. The UBP’s Green Paper, presented to the House of Assembly on February 3, 1995, dealt with this issue in the following manner:

“After their new designation as British Dependent Territory Citizens, Bermudians experienced increased difficulty when travelling overseas. The problems were severe enough to warrant the bilateral negotiations of visa-free access to a number of countries. Fourteen countries, besides the United Kingdom now recognise the Bermuda-issued British Dependent Territory citizen passport; each of these has a visa abolition agreement with the United Kingdom, which extend to Bermuda, although none of them acknowledge this. In effect, Bermuda has therefore, already experienced overseas problems of a “different” passport, Bermuda’s link with the United Kingdom being too obscure for some countries to recognise.

Should Bermuda become independent, it should have no greater problems with regard to Bermuda passports being recognised than have already been experienced<$>.”

That section of the Green Paper concluded:

“Bermuda has no hinterland in which people can seek refuge at a time of economic hardship. However, those Bermudians with a second citizenship, would have the ability to ease the strain on themselves and, just as importantly, on those left in Bermuda, by seeking employment in their second country, at least until the Bermuda economy recovers. Such a safety valve to relieve short-term overcrowding on Bermuda could be vital to Bermuda’s continued welfare in difficult times.”

As we know, the Referendum following that Green Paper resulted in a significant no vote for independence at that time.

Subsequently, in March 1999, the British Government issued the paper “Partnership for progress and prosperity, Britain and Overseas Territories”. In that paper, under Citizenship, the British Government stated:

“We have examined the options carefully, we have decided that British citizenship and the right of abode should be offered to those British-Dependant Territory Citizens who do not already enjoy it and who want to take it up. Anyone who does not want to take it up, will be able to say so and remain British Dependent Citizens.

This is a significant step forward for people in the overseas territories. It will offer them the opportunity many have sought for many years. The Government considers this the right thing to do as a point of principle.”

On February 26, 2002, the British Overseas Territory Act<$> came into effect. The effect of the Act was that anyone who was a British Overseas Territory Citizen, immediately before the commencement of the Act, was to become a British citizen on commencement. The Commencement Date was subsequently set as May 21, 2002. The offer of British citizenship in the Act is not reciprocal as far as immigration rights are concerned.

As a result of the passage of the Act, British citizens, who reside in overseas territories are not subject to UK immigration control and are therefore, able to enter the UK for purposes of leisure, study and employment without gaining prior permission. As British citizens therefore, Bermudians now are able to enter and live in the UK and build up the residence requirements relating to other benefits.

Under European Community law, having British citizenship also confers rights of free movement, residence and opportunities to work without a work permit in the EU member states.

Therefore, Bermudians now have an opportunity to study, live, work and reside throughout the European Community from the Black Sea to the Baltic, from the Mediterranean to the Arctic Circle, from the Balkans to the Atlantic.

Children born to British citizens on or after the 21st May 2002, will automatically become British citizens at birth if they are born in Bermuda, in another overseas territory or in the United Kingdom.

In my recent lecture, I gave examples from my personal circumstances as an illustration to see the effect of this transition in the law over the years.

I was born a British subject in Bermuda in 1953. As a result of the 1971 Immigration Act however, I did not have the right of abode in the United Kingdom and thereafter, no longer had British citizenship. My passport clearly had stamped in it that I was subject to UK immigration control and was not allowed to take employment in the United Kingdom. Therefore, when I went to University in 1971, and thereafter, studied for the Bar, I was not entitled to take a job in the UK and indeed, at the Bar, was not even entitled to take the practical exercise course because I would not have been entitled to practise law in the UK. In the circumstances therefore, right after qualification, I returned to Bermuda.

As a result of changes to the British law by the 1983 Act, I became entitled to the right of abode in the United Kingdom because my mother’s parents were both born in Wales. Prior to 1983, one could not trace British nationality through paternity on your mother’s side. You could only do it through your father’s side. In the circumstances therefore, I was entitled to and subsequently did apply for, and obtain, a full British passport, which I continue to hold. Prior to obtaining this passport, whenever I went on business trips to Europe, I would often have to make plans well in advance and obtain the necessary visas to travel to the appropriate European country. However, after obtaining the full British passport, I now walk through the short line at Gatwick and thereafter, enter any European country with no inconvenience at all.

I however, have three children. All of whom were born British Dependent Territory citizens and who are now British Overseas Territory citizens. They were not entitled under applicable British law pertaining at the time of their birth, to obtain British nationality through me. However, since the passage of the British Overseas Territory Act 2002, they are entitled to full British citizenship and therefore, can travel to England and Europe without any impediment, study in England without impediment, study in Europe without impediment, taking a job in the United Kingdome or Europe without impediment.

There are many examples of Bermudians who now find that they have been able to travel to the United Kingdom and Europe with far greater ease than hitherto was the case. There are examples of Bermudians who have moved to Britain and set up their own businesses. There are examples of Bermudians who now have found the ability to apply for and play for British professional sport teams far easier. Bermudians entering school and universities in the United Kingdom have found it far easier.

I have noticed however, that many in Bermuda are still uninformed as to the opportunities that the new nationality and Passport affords Bermudians.

All Bermudians presently studying in the United Kingdom now find it far easier to enter the UK and pursue their studies than previously was the case. In addition, all of them can take a job whenever they feel like it, can work to support their education and on completion of their education, have complete freedom to decide as to whether they wish to remain in the United Kingdom, to further their education or to further their work experience or indeed, to do the same thing in Europe.

If they wished to stay in England and/or Europe for the rest of their lives, they are free to do so.

Bermudian law students can now compete for places in UK law firms and in Barristers’ Chambers on an equal footing with English students. They can decide whether to come home to practise or remain in the UK and obtain valuable experience and come home at a later time with this experience and thereby maximise their potential.

The UBP’s Green Paper issued in 1995 before we had full British citizenship did recognise as set out above, the importance to Bermuda of Bermudians having the ability to seek employment outside Bermuda. In 1995, it was hardly envisaged except by a few of us that one day all Bermudians would be entitled to have this opportunity. Indeed, the UBP’s Green Paper only referred to those few Bermudians who already possessed that right as a result of having dual nationality. The Present DayWhat will occur should Bermuda choose to go independent? The Foreign and Commonwealth Office did provide a written submission to the Bermuda Independence Commission under cover of their letter of May 6, 2005. The position as set out reads as follows:

“The criteria for granting citizenship for the new state would need to be discussed at the Constitutional Conference. The nationality consequences of independence would be dealt with in the Independence Act of the UK Parliament and would therefore, be looked at very carefully. In the past, the usual practice was to withdraw British nationality from the majority of those acquiring citizenship of the new state on independence, but to provide for its retention, where the person concerned had a residual connection. For example, through a parent or grandparent with the UK or a place that continued to be what nowadays would be referred to as a “British Overseas Territory. We would not expect to take a different approach in Bermuda’s case”. <$>

What that clearly indicates is that should Bermuda proceed to independence, there is a high degree of certainty that all Bermudians would loose their British citizenship other than those who were already entitled to it prior to the 2002 Act. For example, I would continue to be entitled to it but my children would loose it.

What would be the result of this? The Foreign and Commonwealth Office paper sets out the following:

“A national of Bermuda would be subject to the provisions of the immigration rules which govern the entry to and stay in the UK for various purposes (visits, study, work, etc.). The requirements vary from category to category. Decisions on whether to introduce a visa regime for a particular nationality are taken on the basis of the immigration threat to the UK. A judgment could only be taken in respect are taken on the basis of the immigration threat to the UK. A judgment could onlt be taken in respect of (a) Bermudian national after independence and based on the circumstances at that time. Factors that would be taken into account include, evidence of irregular migration (including asylum applications), illegal working, overstaying by those who enter legally, the security of the Bermudian passport and passport issuing arrangements and the adequacy of return arrangements for Bermudian nationals removed from the UK.”In effect, all of the rights that Bermudians presently enjoy in Britain and Europe today would be lost.

In requiring a visa to travel to Britain and Europe, Bermudians would go from the most advantageous position they have enjoyed to the most disadvantaged.

Nowhere in the Commission’s Report is there any discussion of the adverse effects of this on Bermuda and Bermudians. Nationality and Sustainable DevelopmentWe are an extremely small community, with limited resources. We have built an extremely strong economy however, that economy has now almost become one-legged and relies very heavily on the strength and success of international business and financial services.

Once again, using me as an example, I grew up on a farm at a time when farming was the principal conomic activity in Bermuda.

At the beginning of the Second World War, farming was 80 percent of the Bermuda economy. Today, it is less than five percent. When I was born, Bermuda could feed itself in times of emergency. That is no longer the case. There could be no question that the ability for Bermudians to work in Britain and Europe and to reside and live in those countries is an extremely valuable safety valve to Bermudians and Bermuda as a whole today and into the future.

As much as independence has been a matter of public concern in Bermuda particularly, over the last two years, so has the question of sustainable development. A recent prediction indicated that we would be 73,000 people by 2020. Look around Bermuda today. Where are we going to live? Where are we all going to work? We have developed more of Bermuda in the last 50 years then we did in the first 500 years of our history. There is very little of Bermuda left to develop. You will see that in every corner of Bermuda any area of land left to develop, is presently being developed. There are houses and condominiums going up everywhere. The next time you fly out of Bermuda on a clear day, you could be excused from thinking that it had been snowing in Bermuda as a result of the visual effect of the white roofs. Look at any aerial photograph of Bermuda to get the same effect. This is not so much a problem for us today as it is a serious problem for our children of tomorrow.

Given this scenario, what was the recommendation of the Bermuda Independence Commission? It was as follows:

“The present stance of the UK Government on the loss of British nationality appears to be that, in the event of Bermuda going independent, those Bermudian citizens who now have British nationality, but no familiar ties to the UK, would have their British nationality withdrawn.”

The Commission recommended:

“The Government should explore as a matter of urgency, how British citizenship for those without residual connections to the UK might be retained should Bermuda proceed to independence”.<$>

That’s it! Eight lines!

I would most emphatically recommend that until such time as the British Government has confirmed that British citizenship for those without a residual connection to the UK will be retained that Bermuda should not proceed to independence.

On a personal note, I opposed independence in 1995 on the basis that we should not go independent until we had at least explored the possibility of each Bermudian obtaining full British citizenship and therefore, European community rights.

Subsequently, to the surprise, but delight of many, we got all of that and more and I am now of the view that Bermuda should not go independent and thereby, not only lose everything what has been gained, but in fact, put our Bermudians in a worse situation then they have ever found themselves in before. ConclusionToday, the world is a much smaller place. In Bermuda, we like to think of ourselves as members of a global community with the freedom to participate in the global economy. Look at the cover of this year’s Budget Statement.

Bermudians are great travellers and we would like to feel that we have the freedom to travel wherever we want, whenever we want, without impediment.

The substance of my lecture was to indicate that in Bermuda’s case, to proceed to independence now, without maintaining full British citizenship for all Bermudians would result in the majority of Bermudians becoming less equal, having less rights, less liberty and far less ability to pursue happiness in the world of the 21st Century.

It’s all about citizenship