Bermudian Status for PRC Holders

Bermudian Status for PRC Holders

The Supreme Court of Bermuda handed down its judgment in the matter of The Minister for Home Affairs v Carne and Correia [2014] SC (Bda) 9 Civ (2 May 2014) (510 KB PDF) on 2 May 2014. The fundamental result of this judgment is that under certain circumstances, holders of Permanent Resident Certificates (“PRC”) who have been resident in Bermuda prior to July 1989 can now apply for Bermudian Status — an application which Chief Justice Kawaley described as “one of the most significant applications that it is possible for an applicant to make” pursuant to the “beauty in the sleeping provisions” of Section 20B of the Bermuda Immigration and Protection Act 1956 (“BIPA”).

In The Minister for Home Affairs v Carne and Correia [2014], two PRC holders, a British national and a Portuguese national (“the Applicants”) made separate applications to the Department of Immigration (“the Department”) under Section 20B of BIPA for Bermudian Status.

The relevant parts (the most contentious part of which is highlighted) of Section 20B provide:

1. A person may apply to the Minister under this section for the grant to him of Bermudian Status
2. This section applies to a person who is a Commonwealth citizen not possessing Bermudian status, who was ordinarily resident in Bermuda on 31st July 1989 and either…..
   1. is a British Dependant Territories citizen by virtue of the grant to him by the Governor of a certificate of naturalisation under the British Nationality and Status of Alients Act 1914 (U.K) or the British Nationality Act 1948 (U.K) or the British Nationality Act 1981 (U.K) having been approved for the grant of Bermudian status;….

      and in relation to whom in addition the requirements of subsection (3) are fulfilled.

3. The requirements referred to in subsection (2), in relation to an applicant for the grant of Bermudian status under this section, are as follows—
   1. the applicant must have reached the age of eighteen years before the application was made;
   2. the applicant must have been ordinarily resident in Bermuda for the period of ten years immediately preceding the application.
4. Subsections (3) to (9) of Section 19 shall have effect mutatis mutandis in relation to applications under this section as those subsections have effect in relation to applications under Section 19

Both the Applicants had already been naturalised as British Overseas Territories Citizens by the Governor before making their Bermudian status applications.

The Minister for Home Affairs (“the Minister”) refused the application on the sole ground that Section 20B(2)(b) required the Applicants to have “been approved for the grant of Bermudian status” at the time of the granting of their certificates of naturalisation.

The Applicants appealed the Minister’s decision to the Immigration Appeal Tribunal (“IAT”). The IAT found that as the language of 20B (2)(b) was unclear and ambiguous, it was appropriate and consistent with public policy and international treaty obligations to interpret such language broadly and any ambiguity be interpreted in favour of the Applicants. As such the IAT held that the Minister’s interpretation of Section 20B(2)(b) was wrong and that the Applicants were entitled to the grant of Bermudian status.

The Minister thereafter appealed to the Supreme Court of Bermuda. Chief Justice Kawaley in a somewhat lengthy 50 page judgment analysed the circumstances in which PRC holders can obtain Bermudian status deploying the British Nationality Act 1981 (the “British Nationality Act”) and BIPA.

In this case, the Chief Justice found that the Applicant’s failure to seek and obtain pre-approval for Bermudian status before obtaining their certificates of naturalisation, did not on the facts, appear to amount to convincing grounds for refusing the status applications. The technical non compliance with 20B(2)(b) had no impact on the merits of the application.
The Chief Justice found that the Minister’s construction of the statutory provision of 20B(2)(b) was “essentially correct” in terms of procedure. That being said where the only objection to Bermudian status was procedural rather than substantive, the IAT’s decision was sound.

The Chief Justice stated that the Court (and the Minister) must do its best to determine whether, in all the circumstances of a particular case, there has been a substantive and/or substantial failure to meet the approval requirements of Section 20B(2)(b) or merely a technical non-compliance with the requirements of BIPA.

The Chief Justice found that an analysis of the Bermuda Constitution supports the contention that the applications for naturalisation and Bermudian status should be administratively handled on an integrated basis and also that an application under Section 20B(2) of BIPA cannot be refused on merely procedural or technical grounds. He also concluded that the Explanatory Memorandum prepared in relation to the Bermuda Immigration and Protection Amendment Act Bill 1994 generally supported the view that status and naturalisation applications should be processed at the same time rather than sequentially.
Consideration was also given to the International Covenant on Civil and Political Rights (“the ICCPR”). The Chief Justice formed the view that Bermuda law undeniably deprives British overseas territories citizens who do not also possess Bermudian status, of the right to vote and equal access to the Public Service. This, he said, is clearly inconsistent with Article 25 of the ICCPR.

The effective result of this case therefore is that applications for Bermudian status under Section 20B(2) should be made in tandem with naturalisation applications.

Presumably the Minister will proceed to issue a tailored application form and guidelines to process these applications or at least will provide clarity regarding the process using the current status application form.

A press release from the Minister indicates that he is reviewing the decision carefully in order to consider whether to appeal the Chief Justice’s judgment. If the Minister appeals to the Court of Appeal, it seems unlikely that any applications for Bermudian status under Section 20B will be processed until the appeal is finalised and upheld in the Applicants’ favour.

If, however, the Minister decides not to appeal, it is open to all PRC holders to assess whether they meet the eligibility requirements of Section 20B and Naturalisation and thereafter make the two applications in tandem.

It is expected that the Minister will provide a tailored application form and guidelines to process these applications.

Bearing in mind the comments made by the Chief Justice in his ruling regarding the “aspirational international human rights principles” in this case, it would appear difficult for the government to justify a fundamental amendment to the provisions of Section 20B which would in effect deny PRC holders the ability to acquire higher level rights afforded by Bermudian status designation. In the meanwhile, subject to the Minister appealing this matter further and if the only change involves the production of a tailored application form and guidelines to process the Section 20B applications, PRC holders should be fairly confident that they can proceed to assess whether they qualify for Bermudian status and, if so, submit a Section 20B status and naturalization application to the Department.

The Employment and Immigration Practice Group at MJM is available to answer any questions pertaining to either this recent judgment, the eligibility requirements for naturalisation and the status application under Section 20B, advice relating to preparing such applications and if required the group can also assist in preparing and assisting with the processing of such applications.

For a detailed PDF guide of this decision and its implications, please email MJM Limited.