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Decision opens door to Bermudian status

Last Friday, the Supreme Court of Bermuda handed down a decision which confirmed that the Bermuda Immigration and Protection Act 1956 provides a basis for Permanent Resident Certificate (PRC) holders to apply for Bermudian Status.

The case marks a watershed in the interpretation of the Act by both the Bermuda court and practitioners alike and has ramifications for PRC holders who were ordinarily resident in Bermuda on 31 July 1989.

The decision in The Minister of Home Affairs v Rebecca Carne and Antonio Correia involved a British national and a Portuguese national (the “Respondents”) who had each been issued a PRC by the Minister of Home Affairs (the “Minister”) and were naturalised as British Overseas Territories Citizens (“BOTC”) by the Governor.

The Respondents each applied formally for Status under Section 20B of the Act but were refused by the Minister on the sole ground that Section 20B (2)(b) required the Respondents to have been approved for the grant of Status at the time of the granting of their certificates of naturalisation.

On appeal by the Respondents to the Immigration Appeal Tribunal (IAT), the IAT found that the Minister's interpretation of Section 20B (2)(b) was wrong and the Respondents were entitled to the grant of Status.

On appeal by the Minister, the Supreme Court of Bermuda upheld the decision of the IAT and found that Section 20B (2)(b) did provide a valid basis for the Respondents as PRC holders to apply for Status. Although applications under Section 20B should ordinarily be made in tandem with a naturalisation application, in the Respondents' circumstances, the failure to follow the correct procedure was wholly technical, had no impact on the merits of the relevant applications and the Minister was under a positive duty to grant their applications.

The Supreme Court confirmed that in order to potentially acquire Status under Section 20B (2)(b), the PRC applicant must:

— be a Commonwealth citizen;

— have been ordinarily resident in Bermuda on 31 July 1989;

— be a BOTC, having been naturalised under the British Nationality and Status of Aliens Act 1914, the British Nationality Act 1948 or the British Nationality Act 1981;

— have reached 18 years of age before the application is made;

— have been ordinarily resident in Bermuda for the period of ten years immediately before the application is made;

— must not have been convicted of an offence of “moral turpitude”; and

— must not, in the opinion of the Minister, be disqualified for the grant of Status by reason of his character or conduct.

The Supreme Court found that when applicants who apply for Status intend to rely on Section 20B (2)(b), they are required to obtain naturalisation as BOTC from the Minister with a view to obtaining Status and the Minister must signify that the applicant is in fact preapproved for the grant of Status. Where an applicant for Status has met the positive requirements under statute and a specified ground for refusing an application for Status does not arise, then the Minister is under a positive duty to grant Status.

Naturalisation is a legal process by which a foreign national can be granted British Overseas Territories citizenship after fulfilling the requirements mandated in Section 18 and Schedule 1(5)(2) of the British Nationality Act 1981. To date, applications for naturalisation have been submitted to the Department of Immigration where they have been administrated on behalf of Government House. The process has taken approximately six weeks and applicants who meet the requirements may, if thought fit, be issued a BOTC Naturalisation Certificate.

The Supreme Court confirmed that Section 11(5) of the Bermuda Constitution (the “Constitution”) demonstrated that a distinction did exist between being granted Status and being naturalised as a BOTC. Naturalisation brings with it the constitutionally protected standing of belonging to Bermuda and a right of abode in Bermuda. However, the Constitution only confers ‘high-level' rights (i.e. the right to vote and the right to participate fully in public affairs and the public service) on those who possess Status.

In considering this distinction, the Supreme Court highlighted that the current policy in place did create the potential for discriminatory treatment of different categories of BOTC and that the most obvious procedural device to be deployed in this regard was for applications under Section 20B (2) b) of the Act and Section 18 of the British Nationality Act 1981 to be administratively coordinated. It further noted that the potential for discriminatory treatment should be taken into consideration when interpreting Section 20B (2)(b) of the Act.

While it is clear that a formal application to the Ministry of Home Affairs for Status will be required, to date the Ministry has failed to adopt and publish a formal procedure to be followed. It remains to be seen what changes, if any, the Ministry will make to the existing application procedure for Status and naturalisation in light of the Supreme Court decision and whether the judgment will be further appealed by the Minister of Home Affairs.

Lawyer Gretchen Tucker is an Associate and a member of the Employment and Immigration team within the Litigation & Insolvency Group at Appleby. A copy of Ms Tucker's column can be obtained on the Appleby website at www.applebyglobal.com.

This column should not be used as a substitute for professional legal advice. Before proceeding with any matters discussed here, persons are advised to consult with a lawyer.

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Published May 08, 2014 at 12:45 pm (Updated May 08, 2014 at 12:45 pm)

Decision opens door to Bermudian status

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