Government drops appeal on PRC loophole

Senator the Hon. Michael M. Fahy, JP

Statement on

Section 20 BIPA 1956

July 23, 2014

Madam President, the question of Permanent Resident Certificate holders (“PRC’s”) and their place in Bermuda has been the subject of widespread public discussion since May when Bermuda’s Chief Justice issued a judgment upholding the right of certain PRC holders, under rules laid down by the previous government, to get Bermudian status.

Since that time, the Government has considered the situation while paying close attention to public views on the issue.

This morning I will outline the Government’s decision on the matter. In doing so, I will first provide a factual summary of how this situation came about, the reasons for our decision and then some clarifications and corrections to misinformation that has been put into the community since the Chief Justice’s ruling was made public.  

Background

In October of 2012, enquiries were made to the Department of Immigration about the right to Bermudian status under Section 20B of the Bermuda Immigration and Protection Act 1956 (“the Act”), with the applicants at that time being advised that no such application procedure existed.

In spite of this advice, applications were submitted to me in my capacity as Minister of Home Affairs, responsible for immigration in June 2013 at which time they were rejected on the basis that there had been no pre-approval for Bermudian status under the Act.

This decision was overturned by the Immigration Appeal Tribunal. I subsequently appealed the tribunal’s decision in the Supreme Court in January of 2014.  The Chief Justice upheld the tribunal’s decision, ruling in favour of the applicants and stating in his summation that “the decision of the IAT directing the Minister to grant the Respondents’ applications for Bermudian status is accordingly affirmed.”

In essence, the Supreme Court ruling means that the Minister responsible for Immigration, save for various circumstances as set out in the Act, must grant Bermudian status to a PRC holder if the holder

• Was granted a PRC as a result of having been in Bermuda on or before July 31^st 1989
• Submits an application for naturalisation to become a British Overseas Territories Citizen (of Bermuda) and an application for Bermudian status under Section 20B(2)(b) of the Act, and
• The Minister supports the naturalisation application and the Governor approves it. 

This provision in the Act became active as a result of PRC legislation being passed in 2001. When the matter was brought to the attention of the Ministry in October 2012 under the previous government, nothing was done to interfere with the relevant section of the Act.

Following the Supreme Court judgment, this Government moved to resolve the situation.

We sought legal advice from the Attorney General’s Chambers as well as a prominent Queen’s Counsel in the United Kingdom on the merits of appealing the Supreme Court judgment. 

After a thorough review by the QC, and follow-on conversations between the Attorney General, me and the QC, the Ministry was advised that an appeal against the Chief Justice’s order would not succeed – advice that was in keeping with interpretations of the rights of long-term residents under the European Convention of Human Rights. Nevertheless, while seeking clarifications of the QC’s opinion and to keep open all possible legal options, the Government lodged an appeal with the Court of Appeal. We are now in possession of the clarifications and have again been strongly advised that any appeal would be unsuccessful. Based on this information, the Ministry has determined that there is no merit in carrying forward the appeal to the Court of Appeal. As such, we are today withdrawing the appeal. 

This means that the avenue to Bermuda status for certain PRC holders that was created by the previous government in 2001 will stand.

This decision has not been taken lightly, but it is one we take without reservation, because it is based on a clear interpretation of the law, with due regard for justice and human rights and because, in the final analysis, it is the compassionate and right thing to do.

The people affected by the Supreme Court’s judgment of the law have been living and working with us since on or before 31^st July 1989 – that is at least 25 years. Their lives are invested in Bermuda. They are committed. They have put down roots. They are friends, neighbours and colleagues who have contributed to our collective well-being in countless ways. And like Bermudians whom they live alongside, they are active in communities across the Island, in sport and recreation, in charity work and volunteerism; adding to the working life of the Island, using their skills and commitment to make Bermuda stronger in a world that is more challenging and competitive than ever.

When Bermudians reflect on this decision, they should consider what Bermuda means in terms of how we live with each other and with the outside world, remembering that everyone across our history came from another place or descended from people who came from another place. Some of our most respected modern leaders are part of this immigration, including labour leader Dr. E.F. Gordon, former Premier Sir E.T. Richards and Mrs. Louise Jackson. In fact, our data shows that 578 PRC’s are of British descent, 545 PRC’s are of Portuguese descent, 157 or so are of Jamaican descent and the remainder hail originally from Canada, America, Philippines, Barbados, Ireland and many other countries. 

Will we continue to welcome people into the Bermudian family, confident in who we are as a people; or will we shut doors, giving in to the fears that have so much to do with the scaremongering politics of the Opposition?

The PRCs who apply to receive Bermuda status under the current law should be welcomed.

How many people are we talking about?

Immigration records indicate that 1,455 PRCs are potentially eligible for status under Section 20B of the Act.

We do not know how many children of these PRC holders are eligible for status, but believe the number is minimal – possibly a few hundred. We say that because pursuant to the Act the children would have to be

• At least 18 years old upon application but under the age of 22
• Ordinarily resident in Bermuda for the five years immediately preceding their status  application, and
• Of good conduct and character without a conviction of any offence that, in the Minister’s opinion shows moral turpitude.

These conditions alone reduce the numbers substantially. In our assessment, most persons who apply under section 20B, will, if they have children, will now have children who are over 22 years of age.

As for spouses, they would have to be married to a Bermudian for 10 years to be eligible, so that clock would start ticking with the status grant.

I want to take a moment on this point on numbers to say that the Opposition has done a disservice to public consideration of this issue by exaggerating numbers involved in virtually all of their public statements. Opposition spokesmen have used numbers ranging from 4,000 to 6,000, deliberately ignoring the official numbers in the public domain. In doing so, they have sought to impair fair consideration of the matter, thereby calling into question their motives.

Will granting status to these individuals take jobs from Bermudians?

The answer is no. They already have jobs so would not be taking anything from Bermudians. PRCs already have the right to live and work in Bermuda. They have full freedom of employment, free of immigration control.

The 2001 Progressive Labour Party White Paper on Permanent Residents addressed this issue saying: “The argument that non-Bermudians will displace Bermudian workers also assumes that both groups are competing for the same job. Very often this is not the case.”

The PLP today chooses to ignore such assessments in favour of keeping people thinking the worst. One Opposition MP was quoted in the Royal Gazette, for example, at a public meeting that a “flood of new status holders” would compete against Bermudians in an “already overheated economy.” This statement is wrong on three counts.

First, there will be no “flood” since PRCs are already here, freely working, as they have been for decades.

Second, they already compete with Bermudians. Under existing legislation, Permanent Residents have the same rights to compete for jobs as Bermudians. Such statements as I have quoted mislead people into thinking that the granting of status to PRCs would eliminate workplace protections for the hiring of Bermudians first. No such protections exist. The only sector of the economy that stipulates a Bermudian-first hiring policy is in the Civil Service, with Hiring Regulations that specify the hiring of Bermudians first, then spouses of Bermudians, followed by PRC holders.  Those regulations will remain in force.

Third, Bermuda’s economy, after six years of recession, is absolutely not overheated, as some would have people believe. The main thrust of Government’s work since coming to office is to take a contracting economy that was shedding Bermudian jobs and to put in place conditions that grow jobs. That’s our number one mission – getting Bermudians back to work and ending this era of mass unemployment. We are making progress but there is obviously a long way to go. The Opposition in the meantime want people to believe the worst about this Government, going so far as to say it is actively working against them. The PRC situation is simply one more issue they are using to spread distrust, pessimism and doubt, in their attempt to divide people for political gain.

Will PRC holders make it more difficult for Bermudians to own a piece of the rock?

Granting status to PRCs will allow them to purchase real estate without current restrictions, which limit them to condos and properties with an ARV of $63,000 or properties costing $1.2 million or above.

Although many PRCs eligible for status under 20B already own property, it is very possible that new status holders will look to buy a home and that those purchases as they happen may cause the market value of people’s homes to rise. This is good news for a couple of reasons:

• The Bermuda property market has been depressed for years, with homeowners seeing the value of their properties decline and not being able to sell their homes at a decent price.

   

• On this point, I again refer to the 2001 White Paper by the then PLP Government that concluded that the impact of new real estate sales would create available rental accommodations “to those Bermudians who have a real need for rental units.”

Are these circumstances of the rights of long-term residents unique to Bermuda?

No. Other jurisdictions in the Caribbean have managed the issue of long-term residents, and come to terms that are much less stringent than Bermuda’s. In the Caribbean, we understand that

• The British Virgin Islands allows PRCs after 20 years residence. The BVI then grants ‘belonger’ status after one year of holding a certificate of permanent residence. Belonger status can also be conferred after ten years ordinary residence with approval of such an application.
• Antigua and Barbuda grant applicants PRC with proven ordinary residency and a unique skill set or under an approved scheme by government. After seven years of residency individuals can apply for citizenship.
• Cayman may grant PRC status after legal and ordinary residence for a period of eight years based on a points system, with full status after being naturalized as a British Overseas Territory Citizen.

• Dominica requires five years residency to apply for a Permanent Residence Grant or less where the applicant qualifies under an investment fast track programme. After seven years ordinary residence the applicant can apply for naturalization and citizenship.

Bermuda is one of the jurisdictions that we reviewed that had not resolved a pathway to status for its PRCs.  

Is this decision on PRCs a “power grab” as the Opposition Leader says?

In the eyes of the Opposition, the status issue is being advanced to influence the outcome of future elections. Implicit to this way of thinking is that PRCs will vote one way and not another.

How the Opposition can say they know how these people will vote today and forever is a grotesque reach. PRCs eligible under Section 20B come from a variety of social and economic backgrounds, from countries all over the world – Barbados, the UK, the United States, Jamaica, Portugal and Canada to name a few.

No good can come from considering policies of national importance on the basis of which party people think other people will support. It’s absolutely the wrong approach to questions of national life and natural justice.

This issue must be decided on whether it is the right thing to do, not how people think people will vote.

As I’ve said before, we are talking about people who have been here for at least 25 years. We’re talking about people who have invested their lives in Bermuda. They are our friends, neighbours and our colleagues. They are members of the community.

Unfortunately, the Opposition has taken a divisive approach to this issue, pitching it in terms of  “Us” vs. “Them”.  That’s a great pity. This should be a unifying issue because we have the opportunity to join hands to build a strong, unified future together. It is an issue that should be seen as an opportunity to enrich our national life and deepen our commitment to an inclusive and prosperous future.

The Opposition has also taken issue with the fact that PRCs granted status would also be citizens of another country – holders of two passports – who would then have the right to vote on the question of independence for Bermuda. Mr. Walton Brown, JP MP called this situation “untenable” given that “most Bermudians only hold citizenship in Bermuda.”

His position, in effect, is saying that people with more than one passport should not be allowed to vote on Independence. I appreciate that Mr. Brown raised this as an issue in the context of the Supreme Court’s PRC ruling, but it’s a position that essentially says Bermudians who hold more than one passport – and there are many of them – should not be able to fully participate in the political life of the country, because they have a passport from another jurisdiction by birth or through the rights of their parents or grandparents, or because they themselves chose to take out the passport of another jurisdiction. Is Mr. Brown saying then that these Bermudians should not be allowed to vote?

That surely is an untenable position, given that people view a second passport in terms of opportunity for themselves and their families.

Indeed it was during the PLP years in power that the Government helped make it possible for Bermudians to secure British passports for access to job and educational opportunities in the UK and the European Union.

The final point I want to cover is a poll on the PRC issue that was conducted for the Ministry of Home Affairs during the week of July 12 by the marketing research firm Global Research.

The firm polled 404 Bermuda residents aged 18 or more and found that 57% of respondents supported the granting of Bermudian status to PRC holders who had been resident in Bermuda since at least July 31^st 1989, with 33% saying they should not be granted status and 9% who did not know.

The firm said the top reasons given for opposing status to PRC holders were

• PRCs have other rights and should not have a right to vote
• Bermuda is too small
• They take jobs away from Bermudians, and
• Bermudians should not be in competition with PRC holders for land/jobs etc.

The top reasons for supporting the granting of status to PRCs were:

• They have been contributing to Bermuda in a positive way for many years
• After more than 20 years, they are part of the community, and
• 25 years is a long time to be living in a country without status.

In terms of advice to the Minister on the question of granting Bermudian status to PRC holders, Global Research reported that the people polled thought the Minister should view PRC holders on a case-by-case basis and perform background checks before granting status.

I can report that that is exactly what the procedures in place will see to.  These are the same procedures that have been in place for many, many years.  Each application requires a police certificate showing police convictions or lack thereof. The applications are advertised. The applicant must demonstrate they are of good character through the provision of references. They must demonstrate they have been resident in Bermuda and they must demonstrate they have not been convicted of an offence that in the Minister’s opinion demonstrates moral turpitude.

****

To summarize,

The Government will allow the legislation passed by the previous government to stand because it is the right and compassionate thing to do.

The people in question have been living and working amongst us for at least 25 years – having lived in Bermuda since on or before 31^st July 1989.  This is the key date which is why the number of persons eligible is so definitive. 

They have invested their lives in the Island. They have contributed to our collective well-being, enriching the Island’s social and economic fabric. They have helped us compete in a very competitive world.

Surely, as Bermudians, we can open our arms and welcome them as fellow Bermudians, and see this decision as something that will add to our life in Bermuda, not diminish it, as some want people to believe.

We cannot be a society that turns people down and shuts doors. Rather, we must be a society that works with the world while standing for fairness, human rights and acceptance.

We hope all Bermudians accept this decision as the fair, compassionate, right and just thing to do.

Thank you Madam President.