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Minister Michael Fahy Remarks: Pathways To Status

Thursday, February 4, 2016

Good afternoon,

Today I am here to announce that Government will seek to introduce new pathways to permanent residency and Bermuda status. This will advance human rights in our island to bring us in line with important international human rights standards. These amendments will be contained in the Bermuda Immigration and Protection Amendment Act 2016 which Government intends to table in the House of Assembly in the coming weeks.

First, let me just acknowledge the presence of my Junior Minister, MP Sylvan Richards. I also acknowledge the presence of my colleague, the Attorney General, the Hon. Trevor Moniz, JP, MP. He has rendered much assistance to our team in respect of the policy initiative I am about to announce.

This announcement today should finally bring the much-needed security and peace of mind to those in our community who have come to call Bermuda their home but yet, legally, are viewed as outside guests here. These people wake up day-to-day filled with uncertainty and anxiety; they do not know what Bermuda holds for them in the future. These are our neighbors and friends - people who have put years of hard work and dedication to build Bermuda up. Their children were born and raised here, and some of them were even born here themselves. They provide jobs for Bermudians; they eat at our restaurants; they rent our homes; they tend to our sick; they walk the beat and protect us; they volunteer their services to charities. They love Bermuda just as much as we do.

I know many of you will have questions...so let me go into the details for you now...

I want to begin by stating something which I find to be quite shocking...Bermuda is one of the only places in the world that does not have a pathway to status that isn't through marriage. Let me repeat that: Bermuda is one of the only places in the world that does not have any pathways to status. Turks and Caicos is the only other British Overseas Territory which does not have a pathway for ‘belonger’ status.

Many other small jurisdictions, like Bermuda, also provide such pathways: Anguilla allows for permanent residency after 7 years and ‘belonger’ status after 15 years; the Falklands allow for ‘belonger’ status after 7 years; the British Virgin Islands allow for ‘belonger status after 21 years. Other small island and Caribbean jurisdictions allow for citizenship from as little as 5 years to as much as 25, with most averaging in the 8 to 10 year range.

The unfortunate reality is that Bermuda’s immigration policy has allowed substantial numbers of people to live in Bermuda with no real hope or expectation that they can ever achieve the full rights associated with being Bermudian.

Likewise, permanent residents are growing up and having children of their own, and to these children, Bermuda is their only home; they know no other place.

The plight of people affected by our current restrictive immigration policy is a longstanding problem faced by successive Governments.

There was a time when the grant of Bermuda status was discretionary. This was done away with in 1989. Under the OBA Government, we will never go back to a system of discretionary grant of status. Our legislation minimizes the opportunity for ministerial discretion and for ministerial abuse.

The removal of those provisions led to increasing numbers of persons for whom Bermuda is home without any legal right to Bermuda status. This is contrary to international law.

Past immigration policy has involved periodic amnesties for the grant of Bermudian status. The UBP Government enacted amendments in 1994 which allowed for those born in Bermuda or who arrived before their 6th birthday to make an application upon turning 18 and before 2008.  This legislation introduced a moratorium aimed at ‘taking a pause’ in respect of immigration policy.

In 1998, the Government then introduced the possibility of working resident certificates which amounted to a form of conditional residency for persons who continued to be employed in Bermuda. This did not, however, meet baseline international standards.

During its final years in office, the UBP was never able to come to a fair, sustainable solution to the question of Bermudian status. As time went on, more and more people were setting down roots in Bermuda with no solution in sight.

At the end of 1998, the PLP took power. However, in their 14 years at the helm, they too failed to properly address the issue of Bermudian status.

In 2002, the Government introduced limited rights to apply for Bermudian status and allowed long-term residents to apply for permanent resident certificates or PRCs. The number of persons eligible for Bermuda status was very small. Instead, most long-term residents were caught by the PRC provisions.

Permanent residency was available to non-Bermudians with over 20 years of continuous residence and demonstrated good character and conduct. These persons also had to be ordinarily resident in Bermuda before August 1, 1989 and be at least 40 years old on the date of application. A secondary group of non-Bermudians could apply for permanent residency if they were closely related to Bermudians and other permanent residents.

My Honourable Colleague, the Attorney General, would be intimately familiar with the history I’ve just relayed and the issues underlying these fits of reforms. Members of the public will undoubtedly recall his participation in various grassroots efforts to reform the law in a previous time and while wearing a different hat. It is for that reason he is joining me here today, and he has been a tremendous help in bringing this policy to fruition.

During this time and as a complementary policy initiative, the PLP put in place term limits for non-Bermudians. I have previously spoken about how ineffective this policy was for protecting jobs for Bermudians. The reality is that extensions of term limits were regularly given – in excess of 70% of people who applied for waivers of term limits were granted such waivers. The highest number of work permits ever processed happened under a PLP Government in 2008: 8,699 permits to be exact. (For comparison, 4,207 work permits were processed in 2013.) This directly contributed to the policy issues we are facing now with long-term residents in Bermuda.

I would be remiss if I failed to mention efforts by the previous Government when it enacted the Incentives for Job Makers Act 2011. Immigration legislation was amended to allow senior executives who help create jobs for Bermudians and who have been exempt from immigration provisions regarding work permits for at least 10 years to obtain permanent residency. While efforts to attract investment to Bermuda should always be lauded, in the Government’s view, an immigration policy which fails to address private and family life categories of immigration is an incomplete one.

This Government made a commitment in its November 2013 Throne Speech to undertake a review of immigration law and to look to create certain new pathways for Status.

As my Ministry began to look into the matter further and as more cases of hardship caused by the laws currently in place came to my attention, it became apparent that more fundamental reform was needed. Many decisions of the Immigration Appeal Tribunal, all of which are published on the Department of Immigration website represented further interventions requiring a policy response from Government. Taken together, it became clear that the Government needed to come forward with more fundamental reform, a position we note with which the Opposition agrees.

Then came the Supreme Court decision of Carne and Correia. That case gave us a ruling by the Chief Justice clarifying the fact that permanent residents who were ordinarily resident in Bermuda on or before July 31st, 1989 could apply for Bermudian status. It was always Government’s preference to (1) address the question of persons born in Bermuda or who arrived at a young age, (2) to mitigate the unfairness of different individuals in the same family obtaining Bermudian status, (3) to clarify the circumstances when children adopted by Bermudians could obtain Bermudian status, and (4) to avoid a growing crisis of potential statelessness of non-Bermudians born and living in Bermuda. 

The fact is that we have been overtaken by events. The Chief Justice’s decision in Carne and Correia represented yet another factor which had to be taken into consideration when crafting our policy.

To summarize from this short history, the following are the recurring themes of immigration policy in Bermuda: (1) stop-gap measures that fail to produce long-term, sustainable solutions; (2) work permit practices which lead to large pools of non-Bermudians in limbo; (3) a bipartisan understanding of the need to attract international business to Bermuda but a corresponding failure to address the private and family life aspect of immigration policy; and (4) a failure to abide by baseline international human rights standards, including those standards in other small-island jurisdictions which are comparable to, and competing with, Bermuda.

The status quo is totally unacceptable. This is especially the case in a jurisdiction as modern and progressive as Bermuda.The status quo has led Bermuda to fall afoul of its international legal and human rights obligations under the European Convention on Human Rights and the International Covenant on Civil and Political Rights. Blanket bans on obtaining such residency rights , as is the case currently, are not consistent with the European Convention on Human Rights.

Currently, permanent residency is available to senior executives who are ‘job-makers’ and who have been exempt from immigration provisions regarding work permits for at least 10 years. It is also available to an ever-shrinking class of persons who are the adult children and spouses of other permanent residents who in turn were in Bermuda on or before 31st July 1989. There are no other pathways for long-term residents or family members to obtain permanent residency. In our opinion, an immigration policy that offers no pathway for long-term residency or for protection of private and family life is incomplete, unfair and frankly - wrong.

Likewise, in terms of the granting of Bermudian status, status can be obtained by non-Bermudians in the following main circumstances:

  • Where an applicant has been married to a Bermudian for 10 years, with seven of those years ordinarily resident in Bermuda;
  • Where an applicant is the adopted child of a Bermudian, makes an application after turning 18 but before turning 22 and has lived in Bermuda ordinarily for five years;
  • Where an applicant has been ordinarily resident in Bermuda for 10 years and has a qualifying Bermudian connection; and
  • Where an applicant is a permanent resident and has lived in Bermuda ordinarily since at least 31st July 1989.

In terms of providing pathways for Bermuda Status, the main reforms we are proposing will allow any permanent resident who is ordinarily resident in Bermuda for 20 years to apply for Bermudian status. In addition, such a person will need to be a Commonwealth citizen, must be of good conduct and character throughout the period of residency in Bermuda and must not be convicted of offences showing moral turpitude, as has always been the case.

The legislation will make special, transitional provision for those who are already in Bermuda for 20 years or more upon commencement, provided they are Commonwealth Citizens.

The legislation will also correct what - in the Government’s opinion - has been a grave problem with the legislation in respect of the adoption of children by Bermudians. Traditionally, such individuals were only deemed to be Bermudian until their 22nd birthday. They would then have to make an application for the grant of Bermuda Status when they turn 18 and would have to have ordinarily lived in Bermuda for five years before that application.

However, this leaves such children vulnerable to losing their chance for Bermudian status if that five year residency period is interrupted. The law also makes an unfair distinction between the natural born children of Bermudians and those who are adopted by Bermudians.

Therefore, the new legislation will rectify this by allowing the adopted children of Bermudians to automatically obtain Bermudian status provided as follows–

  1. they are a Commonwealth citizen,
  2. they were less than 12 years of age when they were adopted;
  3. in the case of an overseas adoption, the Bermudian parent is domiciled in Bermuda at the time of the adoption; and
  4. the adoption is recognized under the laws of Bermuda.

This will therefore mirror the current legislative provisions in respect of those who obtain Bermudian status by birth. An adoption effected by the courts of Bermuda will lead to status for the child as from the date of the adoption order. An adoption from overseas will require that a General Inquiry be made to the Department of Immigration supported by an affidavit of domicile before the child can be registered as Bermudian.

In terms of providing pathways for Permanent Residency, the main reforms we are proposing are as follows:

Any person who is ordinarily resident in Bermuda for 15 years will be eligible to apply for permanent residency. In addition, such a person will need to be resident in Bermuda for two years immediately prior to his or her application and must have been a person of good conduct and character throughout the period of residency in Bermuda.

Also, any person who was born in Bermuda, or who arrived before his or her 16th birthday, will be eligible for permanent residency after 10 years of ordinary residency in Bermuda upon reaching their 18th birthday. In addition, such a person will need to be resident in Bermuda for two years immediately prior to his or her application and must have been a person of good conduct and character throughout the period of residency in Bermuda.

Additionally, any person who has a ‘Bermuda close family connection’ will be eligible for permanent residency after 10 years of ordinary residency in Bermuda upon reaching their 18th birthday. In order to qualify for permanent residency under this pathway, the applicant must be -

  • the brother or sister of a person who possesses Bermudian status where that brother or sister does not qualify for such grant;
  • the natural parent of a person who possesses Bermudian status where that parent does not qualify for such grant;
  • the brother or sister of a permanent resident where that brother or sister does not otherwise qualify for such grant;
  • the natural parent of a permanent resident where that natural parent does not otherwise qualify for such grant;
  • the son or daughter of a permanent resident where that son or daughter is above the upper limit of compulsory school age; or
  • the spouse of a permanent resident where that spouse does not qualify for such grant or for the grant of Bermudian status.

In addition, such a person will need to be resident in Bermuda          for two years immediately prior to his or her application and       must have been a person of good conduct and character throughout the period of residency in Bermuda.

These permanent residency ‘family’ provisions were introduced by the then PLP Government in 2002. The major change being introduced is to remove the 2010 time limit for making an application.

It should be noted that there will be circumstances where the Minister for Immigration will have the right to deny an application for permanent residency or Status. For example, where a potential applicant does not meet the residency requirements or where any period of absence from Bermuda has not been authorized. This would not include work or education-related absences. The Minister will have to consider all factors of a person’s presence in Bermuda to consider whether he or she has been ordinarily resident, as has always been the case.

In addition, no applicant will be successful if they have been convicted, whether in Bermuda or elsewhere, of offences showing moral turpitude, or their character or conduct otherwise should disqualify them from a grant of Bermudian status.

Finally, the amendments will clarify that the Minister will have the power to strip anyone of Bermudian Status or permanent residency following any application which was obtained by means of fraud, false representation or the concealment of any material fact.

Apart from the fact that making these changes is simply the right thing to do and is long overdue, it almost goes without saying that there will be numerous benefits to Bermuda as a result of this Legislation.

Firstly, it will help to increase the size of Bermuda’s working population in the face of declining birth rates and a shrinking Bermudian population; it is no secret that Bermuda faces real demographic challenges in the coming years.

The reality is that we have many more Bermudians who are getting older and fewer younger Bermudians who are able to pay into our social insurance, pension and health insurance systems. Our non-Bermudian population is far younger; those who are ideally placed to benefit Bermuda in the long run are those who have already demonstrated their commitment to Bermuda through their long term presence. As Bermudians begin to retire, they will appreciate the presence of younger workers who ensure that our social safety net continues to be affordable.

There are other very pragmatic, immediate benefits. New applications will represent a revenue-enhancing opportunity as applicants pay the substantial fees involved under the legislation. New Bermudians, with their newfound security, could seek to purchase real estate or inject capital into Bermuda companies as directors and shareholders. Assets which will be earmarked to leave Bermuda will be more readily available for investments in the local economy. These contribute to an economic multiplier effect and feeds back into positive movement in Bermuda balance of payments and increased Government revenue.

There are some who will say that acting to provide Pathways for residency and status will take jobs away from Bermudians.  This will not happen. We are dealing with very small numbers of persons who may qualify. The 2010 Census data revealed a total work permit population of 6,421. Of that, 5,738 had been in Bermuda for less than 15 years. 511 have been in Bermuda for 15 years or more. Assuming that the 172 who did not report were in the latter category, we are dealing with at most 683 possible applicants likely to be able to make applications upon this legislation coming into operation.

However, there are two further factors to consider:

(1) The Census data is now almost 6 years out of date. With work permit processing cut in half since 2010, many of these work permits holders will have long since left Bermuda. Very fewer numbers will likely qualify in the coming years if and when the proposed legislation is enacted.

(2) The Department of Immigration estimated that 1,455 PRCs were potentially able to apply for Bermudian status following Carne and Correia. Just over 760 have submitted applications. With a take up rate of just over 50%, we believe that not all work permit holders would rush to submit their applications upon enactment of the legislation.

What will ultimately decide the numbers of persons who stand to benefit is the existence of a work permit policy which is robustly enforced. This Government has done more than any other to ensure that there is a fair playing field for Bermudians seeking work in this community:

  • We introduced civil penalties of up to $10,000 which may be levied by the Chief Immigration Officer against companies and individuals alike, and these penalties are regularly imposed;
  • We doubled criminal penalties for work permit related offences;
  • All employers must advertise all available positions prior to applying for a Short Term or Standard Work Permit for a minimum of eight consecutive days on the Bermuda Job Board;
  • The Bermuda Job Board now features information on expiring work permits which will allow candidates to prepare themselves for upcoming potential jobs by ensuring their skills are relevant to the required skills needed; and
  • The Ministry of Home Affairs, through the efforts of the Department or Workforce Development, is ensuring that Bermudians are retooling and retraining for the jobs of today and tomorrow.

In contrast to the Opposition on work permits who talked tough and hoped that no one would notice the flimsy record underneath that rhetoric, the OBA Government is tough in ensuring that Bermudians come first in our employment market.

However, more important than the economic imperative, I hope the Bermuda public will agree that this is the humanitarian and right thing to do. I have spoken already about the need to bring us in line with international baseline standards seen in other jurisdictions and established in international law and I have spent some time with various representatives of community organisations and have heard the issues that exist.

Many individual commentators out in the community would undoubtedly and sadly like to paint these reforms as “anti-Bermudian”. There is nothing anti-Bermudian about helping our family, our friends and our neighbours. The people we are talking about represent every class, race, ethnicity and national origin. Like the Good Samaritan tending to the needs of his neighbor, we Bermudians are kind and compassionate. We are our brother’s keeper.

We all have an interest in making sure that the links we have with people fully enmeshed in the community are maintained. I am sure that everyone out there in the community will know of someone who has been adversely affected by a lack of protection in our immigration policy. You would be shocked to hear from the people that I have heard from since becoming the Minister responsible for Immigration. I hope to share some of these stories in the coming weeks, like the 34 year old nurse who came to Bermuda from Jamaica at age 7 who is on a work permit with no rights despite being here in Bermuda  for 27 years; or the young man who came to Bermuda at age 7 from the Azores and is now in his late 30’s but lost out on status because of a two year absence from Bermuda due to a family illness; or the dozens of others who obtained PRC under the previous Government but who now essentially have stateless children.

I recognize that there will be those among us who may have questions or concerns and I certainly welcome any frank and open discussions from those individuals in the weeks to come. I have provided a short guide on the effect of the proposed changes to the legislation which I hope everyone will read.

I urge everyone to engage in constructive dialogue in respect of these important changes and not engage in fear mongering or misinformation campaigns.  We are not talking about “opening floodgates”. We are talking about what is the right thing to do and I believe these changes should accordingly be fully embraced.

Thank You.

 

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