Labour and Immigration Minister Derrick Burgess attempted to clarify concerns over the Bermuda Immigration and Protection Act 2007 yesterday.

He was responding to an article in The Royal Gazette in which business leaders and residents called for more information on property ownership restrictions for Bermudians married to non-Bermudians.

In Saturday's paper, business leaders branded the legislation "discriminatory and unclear" and called on Government to release the Policy guidance notes as "a matter of urgency" in order to "dispel some of the members' concerns and allow them to conduct their businesses within the confines of the law".

Philip Barnett, president of the Chamber of Commerce, said: "A large majority of our members who work in the industry have voiced their concern regarding the Bermuda Immigration and Protection Act Amendment.

"It is their belief that the Act is both discriminatory and unclear and does not address the real issue for which it was originally intended."

The Act was introduced to combat 'fronting', a practice whereby foreigners have obtained property illegally by using a local resident as a 'front'. Under the Act, a Bermudian married to a non-Bermudian will not be able to buy a second property where that spouse will provide financial assistance or 'benefit' from that property, such as from rental income, until after ten years of marriage, when the spouse applies for 'Bermudian' status. Until then the couple are only allowed one licence for one property.

Mr. Barnett said that, since the Act became law in June, the lack of "clear instruction" over how it affects residents is causing a slowdown in real estate and mortgage lending. "No one wishes to cause an infraction of the law so business is halted," he said.

"It is our understanding that the Policy, which translates the Act into layman terms, should have been released to the public by now, yet we are three months into it and nothing."

Ronnie Viera, who has formed a protest group against the new law, added that confusion was leading banks to refuse mortgages and bidding wars to erupt over property, resulting in higher prices for all.

He said he also found the Act discriminatory. "By being married to non-Bermudians, we are being treated differently and are not seen as equal to our fellow Bermudians," he said. "It is unrealistic to say a Bermudian can just go out on their own and buy a house, when you consider property prices on this Island and the nature of modern marriage."

Shadow Labour and Immigration Minister Trevor Moniz said yesterday: "We feel this policy is misguided and I think most Bermudians find it offensive."

On Friday, The Royal Gazette received Mr. Barnett's press release after office hours and was unable to contact Mr. Burgess for comment.

Yesterday, the Minister held a press conference in which he wanted to address the article in Saturday's paper. He said he wanted to "speak to some of the unsubstantiated comments printed in the article and to dispel some of its inaccuracies and misunderstandings".

Following the Minister's speech, The Royal Gazette stated that the article had sought to address the confusion in the community over the new laws and that there was a need for the Policy guidelines to be published. This reporter also objected to the use of the term "mischievous".

During his speech, Mr. Burgess said Government had received a "large number of expressions of support" from the community for the Bermuda Immigration and Protection Act 2007. He said: "The (Royal Gazette) article opens with the following statement: 'Business leaders say a new law which prevents Bermudians with foreign spouses from owning a second home will only hamper commerce and industry on the Island'."

Mr. Burgess said: "Given the high level of demand for housing and the services of contractors to build them, it is difficult to accept this statement. In fact, if it were true, then it would mean that the real estate market is driven by the demand for properties by non-Bermudian spouses of Bermudians. The article states: 'Bermudians with expatriate husbands and wives will not be able to buy a property without a licence'.

"I am obliged to point out that for the past one hundred years, non-Bermudians, including non-Bermudian spouses of Bermudians, have required a licence in order to own land in Bermuda. Additionally, it has been policy for some thirty years or more that a non-Bermudian, including the non-Bermudian spouse of a Bermudian, could own only one property under licence. Regrettably, Bermudians have been buying multiple properties with funds supplied by their non-Bermudian spouses in order to circumvent the policy.

"Then there is there is the statement that the processing of a licence application on behalf of the spouse of a Bermudian, 'can take up to six months'.

"The Bermuda public will recall that not long ago I made a commitment to have such applications turned around in four weeks from the date that the application is complete and accurate. I am pleased to point out that since mid-July, nine applications on behalf of non-Bermudian spouses of Bermudians have been processed. The average processing time for these was sixteen working days, a far cry from the 'up to six months' mischievously set out in Ms. Dale's article.

"Ms. Dale's article continues: 'Couples who already own another property, such as to rent out, will be breaking the law from June 2010.'

"This statement is particularly misleading, as I have already announced that Bermudians who acquired land before the 2007 Act came into effect on 22 June, 2007 will be granted a licence on application for every property that they hold as constructive trustees for their non-Bermudian spouse.

"Here, I must register my surprise at the fact that the Department of Immigration has received no applications from Bermudians on behalf of their non-Bermudian spouses who hold multiple properties acquired before 22 June, 2007.

"I am not sure what to make of the following statement that is attributed to Mr. Philip Barnett, President of the Bermuda Chamber of Commerce: 'Based on strict interpretation of the Act, Bermudians might be surprised at the Government's definition of a Bermudian family'.

"In my estimation, Mr. Barnett creates the notion of a 'Bermudian family' out of thin air. There is no 'Government' definition of 'Bermudian family' in any legislation relating to Bermudian status, a circumstance that is consistent with national status and citizenship legislation around the world. In short, the question of status relates to the individual.

"Mr. Barnett is quoted as saying: 'You do not have the same rights as a "Bermudian" family comprising of two Bermudian spouses'.

"Although married to a Bermudian, the non-Bermudian spouse is still a non-Bermudian and cannot expect to have all the rights of a Bermudian until such time as he/she obtains Bermudian status. As it stands, Bermudians possess very few rights that a non-Bermudian spouse does not already enjoy."

Mr. Burgess said: "The two main limitations on non-Bermudian spouses are that they may hold only one parcel of land under licence and they are not able to vote in the General Election or By-Election process. Were the Government to accept Mr. Barnett's position on land holding, then, logically the Government would be obliged to allow these persons to participate in General Elections from the day of their marriage. I suspect that there would be outrage against the mere suggestion of such an occurrence by the overwhelming majority of Bermudians.

"It is significant to note that the 1956 Act discriminates in favour of the non-Bermudian spouse of a Bermudian compared with non-Bermudians in general. The non-Bermudian spouse of a Bermudian has a number of privileges with respect to land ownership in Bermuda, namely:

* the ability to own one property (under licence) jointly with the Bermudian spouse. Such land includes: any residential land no matter what the annual rental value; any condominium unit; and vacant land

* in the event of a divorce, or death of the Bermudian spouse, three years in which to make application for a licence to hold the property that was previously held jointly by the married couple

* not subject to the territorial limits, i.e. the '2,000/400 acre rule' as set out in section 89 of the Bermuda Immigration and Protection 1956 Act ('the 1956 Act')

* exemption from high land-holding charges and pays only a small, flat application fee for land licences

* as the constructive beneficiary of the Bermudian spouse's constructive trust, the ability to benefit (under licence) from multiple properties acquired in the Bermudian spouse's name prior to June 22 2007."

Mr. Burgess continued: "In other areas, also, the non-Bermudian spouse of a Bermudian enjoys certain privileges, namely:

* is allowed to work in Bermuda outside work permit control

* being the wife: has the right of abode in Bermuda under the Constitution

* being the husband: has the right of abode under the 1956 Act

* after ten years of marriage and seven years of residence in Bermuda during the marriage is eligible to apply for the grant of Bermudian status

"It is precisely because of the generous privileges bestowed on the non-Bermudian spouse of a Bermudian with respect to the holding and acquisition of land that the non-Bermudian spouse of a Bermudian finds himself/herself in direct competition with Bermudians for land," said Mr. Burgess.

"Such direct competition is not offensive where the non-Bermudian who is married to a Bermudian is assisting in acquiring a first property. The primary objective of this policy is to protect Bermudians from undue competition in the real estate market while at the same time allowing a non-Bermudian spouse who is married to a Bermudian to acquire an interest in one property, i.e. a family home: any additional properties would normally be considered to be held for investment purposes.

"The preamble to the 2007 Amendment states: 'land in Bermuda is regarded by Bermudians as a sacred trust for their use and enjoyment'.

"For the purposes of Part VI of the 1956 Act, land in Bermuda is therefore not to be regarded primarily as a commodity or investment vehicle. Many ordinary Bermudians struggle a lifetime to acquire one property and the Government believes that it would be unjust to allow non-Bermudian spouses to acquire multiple properties and deprive Bermudians of even the meagre opportunity they have to acquire their first 'piece of the rock', ultimately driving Bermudians to become tenants in their own country.

"Mr. Barnett continues: 'It [the implications of this Act] may ultimately prevent more rental properties from entering the market, which negatively affects the average Bermudian and does not support the growing economy where more housing is needed for foreigners'.

"The foregoing statement is curious as I am not certain who Mr. Barnett believes are the 'real stakeholders', bearing in mind his concern over the housing needs of foreigners. I wish to state emphatically that I am concerned about housing for all Bermuda's residents, but would be pleased if the new Part VI produced more Bermudian home owners than Bermudian tenants!

"Ms. Dale's article continues: 'The Chamber of Commerce is also questioning the figure of 37 percent of land owned by non-Bermudians: "Have we reached the saturation point of ownership by non-Bermudians and are the records that speak to this accurate? The statistics, which were recently made public, did not clearly state whether properties that were owned by both a Bermudian and non-Bermudian were included in the non-Bermudian ownership count".'

"With respect to the first part of that statement, I too am concerned about ensuring the accuracy of the land owning statistics. Indeed, the legislation requires all owners of licensed land to have their licences validated before 22 June, 2010 so that every piece of licensed land is identified and the total area of land owned by restricted persons is accurately known.

"With respect to the second part of the statement, the figure of 37 percent included only that property which is held under licence. If a non-Bermudian spouse of a Bermudian holds an interest in land in Bermuda but is not shown on the deeds of the property, then there will also be no licence for the property and hence the area of this property would not have been included in the count.

"I suspect that within the next three years, we will learn that more than 37 percent of Bermuda's residential property will be owned under licence by non-Bermudians. The following factors are likely to lead to that increase: expansion of the definition of 'restricted person', so that any land that they own will have to be licensed; certain restricted persons who in the past were able to own land without a licence will now be required to have a licence; and the land within designated condominiums is being added to the pool of licensed land.

"I would like to reiterate the fact concerned members of the public may contact the Chief Immigration Officer should they have questions regarding the new law and its administration. I can report that some thirty persons have made contact by phone, e-mail, letter and appointment to seek clarification on points of the law. While all such parties may not have been pleased that the law does not coincide with their personal interests, I can assure you that every attempt has been made to give all parties prompt and clear responses.

"In closing, I wish to advise that the guidance notes to this legislation will be available at the following website with effect from Wednesday, October 10, 2007: www.immigration.gov.bm."

Following the Minister's speech, William J. Zuill, Editor of The Royal Gazette, issued this response: "I am disappointed that once again a Cabinet Minister has chosen to single out a reporter at The Royal Gazette for alleged 'mischievous' reporting."

Explaining that Ms Dale was assigned the article and that as Editor, he is ultimately responsible for stories, and that to single her out was a "clumsy attempt at intimidation". He also said ms Dale's reported the story "as fairly and accurately as she could".

"She also included background information from the Government which put its side of the story and put the criticisms in context," he continued.

While admitting there was one "inaccuracy" in the story, specifically, Mr. Burgess' complaint about the existence of a policy for 30 years banning non-Bermudian spouses from owning one property, Mr. Zuill decried the fact that guidance notes were not released until yesterday.

"Further, Mr. Burgess claimed yesterday that he had stated that couples made up of a Bermudian and non-Bermudian who already own more than one property would receive licences for these, but I have been unable to find any reference to this in any of our reporting. However, I would be happy to be corrected on this point.

"The main point is this," Mr. Zuill concluded. "Mr. Burgess has criticised Miss Dale for doing no more than quoting statements from the Chamber of Commerce, and if he disagrees with the Chamber, then he would be better off criticising that organisation and not shooting the messenger."