Status and PRCs can empower Bermudians – not exclude them
This is the second in a series of pieces offering a critique of proposals made by the Consultative Immigration Reform Working Group
The Working Group made a number of recommendations in respect of addressing issues relating to long-term residents of Bermuda. I have already addressed the recommendations relating to the granting of status and will now turn to the issue of permanent residency.
Permanent residency in Bermuda was a concept introduced by the Progressive Labour Party in 2002 to try to give some security to non-Bermudians who had lived on the island for many years. Permanent resident's certificates were available in two streams: for long-term residents, and for their family members and Bermudians — popularly known as “PRC-A” and “PRC-B”, respectively, because of the relevant section under the Bermuda Immigration and Protection Act 1956.
Simplifying it a bit, a PRC-A would be available to long-term residents who lived in Bermuda since July 1989 at the latest and for at least 20 years. Only persons who were over 40 years of age could apply, with applications having to be submitted before August 1, 2010.
A PRC-B would be available to siblings, parents, children and spouses of Bermudians, where they themselves would not qualify for Bermudian status, or of those with PRC-A status. This route remains available to this day for the children and spouses of PRC-As, but a PRC-B is not able to pass any form of regularised status to their children.
In the short term, the introduction of PRCs solved some of the issues faced by long-term residents having to leave Bermuda after spending some 20 years or more in Bermuda as well as their children, who knew no other place. However, two fundamental issues remain, which were a strong part of the motivation in introducing “Pathways to Status”. This first, the 2010 cut-off date for applications, means that there are now many people who have been in Bermuda for long periods of time that have no avenue for long-term residency at all — unless you are considered a Job Maker, another PLP initiative. Bermuda very much remains a global outlier in providing a generalised route to some form of regularised status, even among small-island jurisdictions.
The second unfortunate situation arises from the inability of PRC-Bs to provide some regularised status to their children. As a result, there is a swath of young persons who are second-generation Bermudian-born but not Bermudian. Not only do these individuals know no other home than Bermuda, they are two generations removed from whatever ancestral place of residence they would be expected to return to. Depending on the particular immigration and naturalisation laws of their grandparents' place of origin, there is also the risk that these individuals can become stateless as a matter of international law. However, it is important to note that the Working Group did recognise the inherent unfairness of this particular problem and has made recommendations to fix it.
(As a concerning side note, the one possible route to providing some security to stateless children — as a British Overseas Territories Citizen — has been effectively voided by the passage of the recent legislation exempting the Bermuda Immigration and Protection Act from the Human Rights Act 1981.)
In most sophisticated jurisdictions, there exists a way for people to obtain permanent residency or indefinite leave to remain, whether that be after you have lived in the host society for a set period of time, or even before you arrived. In my previous column, I provided the examples of Australia, Canada and Britain, who all have a points system in place that allows applicants to move to those respective countries if they fulfil certain criteria in respect of education, income and skill set.
Often the points system is tailored to what skill sets are required in the country at any particular time. If an applicant is successful, they get a residency certificate before arrival in the jurisdiction, which sets them on a pathway to citizenship without further regard for a points system.
As I also explained previously, the Cayman Islands do it slightly differently. After having been a resident for eight years in the Cayman Islands — on a work permit — you can apply for permanent residency, based on a points system that is tailored to the requirements of the workforce. The system takes into account a person's character and conduct, the investments a person has made into the country, as well as other matters such as community involvement and educational levels. A person can become a permanent resident of the Cayman Islands after eight years. After 15 years, you can apply to possess Caymanian status without further interview or any points-based criteria (see previous column).
Unfortunately, the Working Group has not proposed a suitable time frame of residency in Bermuda, after which any such application can be made to become a permanent resident, and it has not suggested that any form of points system should be implemented to aid in a decision-making process for permanent residency. However, what is suggested is that an applicant should have invested in Bermuda; they must occupy a position in a category of profession where there is low participation; and they shall have immersed themselves in the community. While these are sound principles, the Working Group has rather neatly sidestepped the most difficult piece, and that is the amount of time that someone should be in Bermuda before applying. However, the areas of consideration can be easily converted into a points system if it were deemed appropriate.
As you will recall, under the Pathways to Status initiative, it was proposed that any person who had been continuously and ordinarily resident in Bermuda for 15 years or more could apply for permanent residency, subject to the usual criteria of being a person of good character, free of criminal conviction and a few smaller points. The proposal was designed this way so that everyone who had been in Bermuda for 15 years or more as a continuous and ordinary resident was treated fairly and equally, without regard to ethnicity, socioeconomic background, etc.
Ironically, the Working Group proposed the same thing when it suggested that any mechanism for permanent residency “should be drafted in a manner that alleviates implicit gender, racial and financial bias”. Interestingly, the recent changes making the Bermuda Immigration and Protection Act supreme over the Human Rights Act allows the minister to take all those issues into account.
So what next?
It seems to me that perhaps the way to deal with permanent residency is actually by way of a points system — not for status — that takes into account the applicant's education, income, commitment to the jurisdiction, investment, employment and skill set, family circumstance as well as knowledge of the island, and allows anyone who has been ordinarily resident after 15 years the right to apply provided they are of good character and conduct, and free of criminal conviction.
If the applicant meets the respective criteria, they would be entitled to permanent residency. The points system could be reviewed every few years — not every ten as suggested by the Working Group — by an economic committee appointed by an independent commission. Much like the way the Human Rights Commission is appointed, and it would be tasked with analysing the skill sets required in Bermuda and setting the points accordingly in each category.
What is clear is that many Bermudians have a real issue accepting that long-term residents should themselves be able to become Bermudians. The Working Group proposals certainly show that. It would appear, however, that there is much less division in respect of granting permanent residency to long-term residents. Nevertheless, I remain convinced that it is our legal and moral obligation to accept people who have been in Bermuda for 20 years or more as a fellow Bermudian, subject to my previous caveats. We can, however, soften the ground a bit by introducing a points system in respect of granting permanent certificates to long-term residents, after a period of 15 years, which is still almost double that of any other jurisdiction.
In closing, it is important to remember that our failure to act on this matter puts us at odds with just about every country in the world and on par with pariah states such as North Korea in terms of the granting of citizenship. Granting status and permanent resident's certificates to long-term residents is not a way of excluding Bermudians — quite the opposite, it empowers us, globalises us and puts Bermuda on the road to economic success and economic freedom.
I shall comment further in another column about other jurisdictions and also mixed-status family proposals.
• Michael Fahy was the Minister of Home Affairs from December 2012 to May 2016