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Status requests are being processed

Status fight: Rev Nicholas Tweed presents Premier Michael Dunkley with a document following a march from Victoria Park to the Cabinet Building to protest Government's handling of the extension of Bermuda Status to more than 1,400 Permanent Resident Certificate holders through a loophole in the Immigration law.

The Department of Immigration has begun processing applications for status, following a landmark Supreme Court ruling on the right of certain Permanent Resident’s Certificate (PRC) holders to become bona fide Bermudians.

But the Home Affairs Ministry has declined to reveal how many status requests have been taken, in the wake of the May 2 dismissal of its case by Chief Justice Ian Kawaley.

Immigration has been accepting applications over the months since Mr Justice Kawaley’s surprise ruling, which supported a decision by the Immigration Appeal Tribunal to allow status for two PRCs under a little-used area of the Immigration and Protection Act.

All petitions were kept on hold while Government sought advice, according to Attorney General Trevor Moniz — but the last-minute appeal was subsequently dropped.

Asked how long it could take for the first eligible PRCs to obtain status, a Ministry spokeswoman responded: “These will take some time to process, since applicants need to be naturalised, which includes a requirement for a police certificate from their originating jurisdiction, in accordance with the Bermuda Immigration and Protection Act 1956.”

However, The Royal Gazette got no reply to questions on how many applications had been received, in the aftermath of the Supreme Court ruling on the cases of Rebecca Carne and Antonio Correia.

Lawyer Peter Sanderson of the firm Wakefield Quinn, who successfully argued the two cases, said it appeared that others had followed suit.

“We’ve seen a lot of applications, but ultimately we’re just one law firm, so I’m not sure what the amount is overall,” Mr Sanderson said. “There has been a lot of interest, but I can’t give a particular number.”

The lawyer declared himself “sceptical” of the large figure of potentially eligible PRCs cited by the Opposition Progressive Labour Party in a series of town hall meetings on the issue.

Shadow Immigration Minister Walton Brown has suggested numbers of around 4,000, potentially up to 6,000, but Mr Sanderson said the figures supplied by the Department of Immigration looked more reasonable.

“I don’t think it would be anywhere near that figure of 6,000, based on the number of enquiries I’ve had,” he added.

Junior Home Affairs Minister Sylvan Richards told MPs in June that 1,340 people appeared to be eligible “under this, for want of a better word, loophole”.

Home Affairs Minister Michael Fahy later clarified that “1,455 PRCs are potentially eligible for status under Section 20B of the Act”, and said a couple of hundred children might also qualify.

Eligibility in this case rests on several conditions: the argument for Ms Carne and Mr Correia used 20B (2) B of the Act — which Mr Justice Kawaley noted hadn’t been used in “many years”.

The provision was so obscure that no standard forms existed for an application.

To qualify under 20B (2) B, applicants must be Commonwealth citizens who have resided in Bermuda since July 1, 1989.

They must be at least 18 years old, of good character with no serious convictions, and have lived in the Island at least ten years prior to applying for status.

Applicants must also have a certificate of naturalisation as British Overseas Territories citizens, granted by the Governor [see sidebar] — but also, the Act stipulates, “having been approved for the grant of Bermudian status”.

Although both Ms Carne, a British national, and Mr Correia, a Portuguese national, had been naturalised in 2012, their requests for status were turned down by the Minister on the basis that they hadn’t been “approved for the grant” first — even though no clear procedure existed for such pre-approval.

Last year, the Immigration Appeal Tribunal branded the requirement “hopelessly circular” and ruled that it shouldn’t constitute a barrier to eligible applicants obtaining status.

This finding was affirmed by Mr Justice Kawaley in a judgment that can be read online at the Government website.

The potential number of PRCs eligible under the same criteria as Ms Carne and Mr Correia remains unknown — although a clue can be gleaned from remarks made by the Attorney General during the first Parliamentary debate on the issue.

During that June 6 debate, Mr Moniz hinted there were 115 candidates who had already been naturalised, and thus could be in a similar position to the two successful applicants.

On that occasion, the AG told the House: “The fact of the matter is there are 115 people — and this all happened under the previous administration — there are 115 people who were naturalised, and it’s because of the wording of under 20B (2) B, the last words saying ‘having been approved for the granting of Bermuda status’ … and what was happening was the Minister was giving approval which meant that he was saying they had, in some sense, been approved for Bermuda status.

“He was not actually saying that, because the granting of discretionary status had been discontinued at that time. But the wording was still there. So in a practical way, the Immigration Appeals Tribunal and the Chief Justice were saying it would then be unfair to deny these people an application for Bermuda status.”

Mr Moniz then added: “If, at the end of the day, everyone in the same position as Carne and Correia should be entitled to apply for Bermuda status, then the 115 may be in the same position as Carne and Correia.”

On Monday, The Royal Gazette sent the Attorney General a request for clarification, but no response had been received by press time last night.

Editor’s note: On occasion The Royal Gazette may decide to not allow comments on what we consider to be a controversial or contentious story. As we are legally liable for any slanderous or defamatory comments made on our website, this move is for our protection as well as that of our readers.

<p>What is naturalisation?</p>

Long-term residents of the Island hoping to acquire Bermuda status must undergo naturalisation before they can request to become full-fledged Bermudians.

Naturalisation is a form of citizenship, which in Bermuda’s case is granted by the Governor — thus making the applicant a British Overseas Territories citizen.

While not all persons seeking naturalisation are necessarily hoping to obtain full status, holders of Permanent Resident’s Certificates are required to get naturalised before status.

The option is available under the British Nationality Act of 1981, with the criteria for British Overseas Territories citizenship listed in Schedule One of the Act.

As well as having a clear record for convictions showing “moral turpitude”, applicants must also show that they are of good character.

Depending on which section of the Act they use to apply for naturalisation, the applicant must also show that they have been in the jurisdiction for either three or five years before applying.

Persons seeking UK citizenship must become naturalised as British citizens, which is covered by a different area of the Act.

British citizens do not automatically receive British Overseas Territory citizenship.