Belonging to Bermuda
Wakefield Quin barrister Peter Sanderson explores some of the implications of the recent judgment confirming that naturalised British Overseas Territories citizens are not subject to work permit restrictions.
A recent judgment has confirmed that naturalised British Overseas Territories (BOT) citizens are not subject to work permit restrictions. People will have a lot of questions arising from this:
• How did this happen?
• Who can apply to naturalise as a BOT citizen?
• What is the application process?
• What other benefits might belonging to Bermuda have, other than exemption from work permit restrictions?
• How did this happen?
The Constitution has always protected naturalised BOT citizens as belongers in the same way as Bermudians.
The terms of the Constitution were agreed in 1967 in a conference including representatives from across the political spectrum.
Reading the report of the conference, it does not seem that anybody had any concerns about the provisions regarding belongers.
Subsequently, the rights of naturalised persons were overlooked in immigration laws, and the law generally.
Until recently, if people were aware of naturalisation at all, it was usually just as something they did as a first step for non-Commonwealth citizens to acquire a Bermuda passport and obtain Bermudian status as the spouse or child of a Bermudian.
• Who can naturalise?
To naturalise there cannot be any restrictions on how long you are allowed to remain in Bermuda. This excludes the vast majority of work permit-holders.
It means naturalisation is limited primarily to Permanent Resident's Certificate holders (PRCs), spouses of Bermudians, wives of PRCs and naturalised BOT citizens, and people who have been granted indefinite leave to reside in Bermuda on exceptional grounds.
In the case of a husband of a Bermudian, you must be living with your Bermudian wife to qualify for naturalisation.
There is a strict “good character” test. Even minor criminal convictions, civil judgments, failure to pay your debts, etc, could lead to a finding of bad character and disqualification.
You must have been living in Bermuda for at least three or five years, depending on your circumstances, and not have had too many absences in that time.
The Constitution protects only people who obtained BOT citizenship via naturalisation and, if you already have BOT citizenship, you cannot naturalise.
People who already have BOT citizenship from birth will include anybody who was born in Bermuda before 1983, and most children of PRCs who were born here subsequent to their parents receiving a PRC.
Most PRCs appear unaware that their children born here automatically have BOT and British citizenship.
• What is the application process?
The application is to the Governor, via the Department of Immigration. The fee is $91.
You are required to provide character references and proof of residency. It can take a few months to receive a decision.
An applicant should be given the opportunity to address any problem areas in their application before any refusal, which can be challenged on limited grounds in the Supreme Court.
• Are there any downsides to naturalisation?
Naturalisation does not give anybody the right to vote, and you cannot pass it on to your children (although your children are also deemed belongers until the age of 18).
It makes you a British subject, which means that you can be subjected to certain UK laws binding on British subjects anywhere in the world. These usually concern things such as trading with the enemy or bribery offences.
• What are the benefits of naturalisation?
The extent of the benefits is uncertain at present, and the judgment could still be appealed. Naturalisation entitles you to a Bermuda passport, which can be used to travel widely with few visa restrictions. After naturalisation, you can opt to register as a British citizen.
Although PRCs and spouses of Bermudians have the right to work anyway, PRC status can be lost if you are absent from Bermuda for two years, and spouse's rights fall away automatically if you separate even temporarily from your Bermudian spouse.
This can cause serious work problems for spouses going through a patch of marital difficulty.
It is helpful for wives (and possibly husbands) of PRCs, who, although permitted to live in Bermuda, often cannot get a PRC themselves and require a work permit.
It can also give comfort to widowed wives of PRCs, who are left without any continuing rights to reside.
Children of naturalised BOT citizens under the age of 18 are also deemed to “belong” to Bermuda and will have the same rights as other belongers.
The judgment points the way towards other laws that might be unconstitutional.
The Constitution says that belongers should not be discriminated against with respect to entry into employment, or engaging in any business or profession.
It is very strongly arguable that naturalised BOT citizens and other belongers should be subject to neither 60:40 rules for company ownership, nor government hiring and firing regulations that favour Bermudians.
The Constitution also prohibits discrimination generally unless reasonably justified. It remains to be seen how justifiable it is to discriminate against belongers in other areas.
What about access to government services, legal aid, land ownership restrictions?
There are also areas where Bermudians may feel they are the discriminated ones. For example, conscription: could young Bermudian men claim they are discriminated against because the conscription ballot does not include the names of naturalised BOT citizens?
Similarly with jury duty: could Bermudians complain that the ballot for jurors should include all belongers so as to share the civic burden in a non-discriminatory manner?
There are many areas where the law does not even acknowledge the existence of belongers.
These issues are politically sensitive and legally complex. It remains to be seen whether the Government will make amendments to the law (a political hot potato), or whether each issue will have to be determined on a case-by-case basis by the courts (which could prove costly to the Government if it loses the cases).
Perhaps we will finally see that thing which everybody claims to support, but which nobody seems inclined to put forward concrete proposals on: “comprehensive immigration reform”.
• Peter Sanderson is a barrister at Wakefield Quin Ltd, dealing with all areas of civil and commercial litigation. He represented the successful party in the constitutional case.