Last year, in the first edition of Law Matters, I wrote a brief history of Bermuda’s Immigration Laws.

This year, with the recent presentation and passage of the Government’s White Paper on long-term residents, entitled “Community for a New Millennium”, Bermuda Status remains an issue of public interest. The White Paper introduces several new ways in which Bermudian Status may be obtained in the 21st century.

What follows attempts to set out in a readable form, the current law on availability of Bermudian Status and how this will be supplemented by the proposals set out in the White Paper.

Bermuda Status is not as many would think a ‘nationality’; it is, rather, a legal qualification to enjoy in Bermuda what citizenship would normally afford an individual in most independent countries.

There is no statutory definition of Bermuda Status as such, but the nature of the qualification can be seen in a number of areas.

[bul] The right to vote, Section 55 of The Bermuda Constitution

[bul] The right to be elected to Parliament Section 29 of the Constitution

[bul] The right to entry and residence in Bermuda Section 25 of the Immigration Protection Act 1956

[bul] The right to engage in gainful occupation without a work permit Section 60 of the Immigration and Protection Act 1956

[bul] The right to own land without restriction Section 72 of the Immigration and Protection Act 1956

[bul] The right to be considered a Bermudian shareholder and therefore own shares of a Bermuda company without restriction Section 113 of the Companies Act 1981

History of Bermuda Status

The concept of Bermuda status was introduced by the Immigration and Protection Act 1956 and came into effect on June 30, 1956. Prior to that, The Immigration Act 1927 had introduced the definition of “natives” of Bermuda as individuals who, whether British subjects or not, had resided in Bermuda for three years or more and were exempted from Immigration control.

The Immigration Act of 1937, created the predecessor of Bermuda status, being individuals who “were deemed domiciled” in Bermuda. Such individuals were exempted from immigration control and could carry on a trade or occupation without Immigration permission. As the definition of those “domiciled” required them to be British, they could vote and as there were no controls on British subjects owning land at that time, they could own land without restriction. As we shall see, such individuals automatically became entitled to Bermudian Status on June 30, 1956, when the Immigration Protection Act came into effect.

Entitlement to Bermudian Status <$>

The categories of those entitled to enjoy Bermudian Status has changed a number of times since the Immigration and Protection Act came into effect in 1956. Certain categories of status are no longer available, and new categories have been added which did not previously exist.

The most dramatic change perhaps was the abolition of the discretionary grants of status. For many years the Government would entertain a number of applications for discretionary grants (normally no more than 35 were granted in each year) to individuals who had resided in Bermuda for five years and subsequently this was increased to ten years, to apply for grants of Bermudian status. The individuals did not need to be British subjects, but where they were not they had to be naturalised as British subjects, before their applications were successful. The discretionary grants of Bermuda status became controversial and were eventually abolished in 1989.

In addition, when the Immigration and Protection Act 1956 first came into effect and up until 1980, British wives of Bermudian men were automatically deemed to have Bermudian status from marriage and after five years of marriage were entitled to apply for status in their own right automatically. This was also considered controversial, as British husbands of Bermudian wives did not enjoy a similar benefit and therefore this right was abolished in 1980. However, any wife who was entitled to be deemed to have status and had been married for five years prior to 1980, may still be entitled to have Bermudian status.

Present Day Applications for Bermudian Status

These will be divided into the following eight cases:

Case 1: S.16(2) Bermuda Immigration and Protection Act 1956

Any person who is under the age of 22 years and deemed to be Bermudian:

(a) any person who is a legitimate or legitimated child or is a step-child or a child adopted in a manner recognised by law of a person who has Bermudian status, shall for the purposes of the Act be deemed to possess and enjoy Bermudian status.

(b) any person who is under the age of 22 years and is a child who was born out of wedlock to a person who has Bermudian status and in respect of whom the conditions specified in Section 2A apply.

(c) Section 16(2)A requires that the Minister of Immigration be satisfied that the parent in question has held himself or herself out as the parent of the child, either by receiving the child into his or her home and bringing up the child as a member of his or her family, with, if the person is married the consent of his or her spouse; or

(d) where there is no such consent, or where the parent is unmarried by providing maintenance and support for and otherwise so far as is practical by taking an active role in the overall development of the child.

It is of note that in both these first two cases the individual no longer needs to be a Commonwealth citizen as was previously required (Bermuda Immigration and Protection Amendment Act 2000).

Case 2: S.17 Bermuda Immigration and Protection Act 1956<$>

(a) Any person who was on the 30th June 1956 deemed to be domiciled for the purposes of the Immigration Act 1937.

One must therefore look to the provisions of Section 5 of the Immigration Act 1937, for the qualifications to be deemed domiciled.

The individual needed to be a British subject and either: (i) be born in Bermuda or of parents who at the time of his birth, were ordinarily resident in Bermuda; or (ii) have been ordinarily resident in Bermuda for a period of seven years or more; or (iii) had been naturalised by the Governor; or (iv) was a wife of any of the foregoing (being a husband did not qualify) ;or

(v) was a child a step-child or an adopted child under the age of sixteen of any of the foregoing.

By virtue of Section 5(2) of the Immigration Act 1937, certain individuals who were effectively in the Crown’s service did not qualify to be domiciled in Bermuda and therefore would not have obtained their status in 1956. Section 17 of the Immigration and Protection Act 1957 however, provided that those individuals could still obtain Bermudian status if their parents were domiciled in Bermuda in accordance with the common law definition of domicile as set out in Section 18(5) of the Immigration and Protection Act 1956, on July 1, 1956.

This ground of application was significantly extended by the amendments to Section 17 of the Immigration and Protection Act contained in the Bermuda Immigration and Protection Amendment Act 1997, which provided that any person who would on June 30, 1956 have been deemed domiciled for the purposes of the Immigration Act 1937 but for Section 5 (2) thereof shall if at least one of his parents was at the date of his birth domiciled in Bermuda, possesses Bermudian status; and

Subsection 3, for the purpose of determining whether a person was deemed to be domiciled for the purposes of the Immigration Act 1937 on 30th June 1956” under Subsections 1 and 2, a person who was not a British subject on that date shall be deemed to have been a British subject on that date if that person’s mother:

Had she been that person’s father, would have passed to that person on the date of the person’s birth, British nationality under the United Kingdom Acts; or

Before that person’s birth became a British subject by registering in Bermuda as a British subject under the United Kingdom Acts because she was married to a British subject.

The Amendment Act also provided that a person who was a British subject on June 30, 1956 shall be deemed to be domiciled for the purpose of the Immigration Act 1937 on that date under Subsection 1 if that person was a spouse of a person to who paragraph a, b, or c of Section 5 of the Immigration Act 1937 applied, on that date not living apart from that latter person under decree of competent court or deed of separation (i.e. extending to husbands a right that previously had only been given to wives).

Case 3: S.18 Bermuda Immigration and Protection Act 1956: Acquisition of Bermudian Status by Birth<$>

Acquisition by birth of any person who was born after June 30, 1956 and before July 23, 1993 in Bermuda, if he is a Commonwealth citizen and one of his parents possessed Bermudian status.

Any person who was born outside of Bermuda during this period, and who was a Commonwealth citizen, and one of his parents was domiciled in Bermuda at the time of his birth, and that parent possessed Bermudian status at the time of his birth (it is of note that the law prior to amendment in 1999 required both parents to have been domiciled in Bermuda at the time of his birth).

(c) a Commonwealth citizen born in Bermuda after the July 23, 1993 and at the time of his birth one of his parents possessed Bermudian status (Section 18(3) as amended)

(d) a Commonwealth citizen born outside of Bermuda on or after July 23, 1993 and at the time of his birth one of his parents was domiciled in Bermuda and that person also possessed Bermudian status.

Note that after July 23, 1993, an individual must be a Commonwealth citizen at the time of birth, and this is not a requirement for those born between 1956 and 1993. Insofar as the domicile of the parents is concerned, if the child is legitimated according to the provisions of the Legitimacy Act the status and domicile of the father may be taken into consideration. If the child is not legitimated, then if the provisions of Section 16(2)A can be applied then the status of the father may also be considered. Where, however, the provisions of Section 16 (2)A are not applicable only the status and domicile of the mother may be taken into consideration.

Domicile:

It can be seen that the principles of domicile are very intricately involved in the determination of an individual’s Bermudian status. Many applications for Bermudian status can either succeed or fall on whether the applicant’s parents were deemed to be domiciled in Bermuda at the time of the applicant’s birth.

As a result of the provisions of Section 18 (5) of the Immigration and Protection Act 1956, domicile for these purposes has the meaning ordinarily applied to that word in common law and with effect from July 23, 1993, the law was amended to provide that a wife’s domicile would no longer be dependent on that of her husband but would be ascertained by reference to the same practice as in the case of any individual capable of having an independent domicile. The English common law principles of domicile are probably best found in Dicey and Morris’s The Conflict of Laws, which sets out what the authors refer to as “rules” of domicile. The principle rules are as follows:

A person is in general domiciled in the country in which he is considered by English law to have his permanent home.

No person can be without a domicile.

No person can at the same time have more than one domicile.

Every person receives at birth a domicile of origin.

That domicile of origin is presumed to continue until it is proved that a new domicile has been acquired.

A legitimate child’s domicile of origin is the domicile of his father at the time of his birth. A child born out of wedlock’s domicile, is the domicile of his mother at the time of his birth.

A domicile of origin can be changed to a domicile of choice by a combination of residence and intention of permanent or indefinite residence, but not otherwise.

A person abandons a domicile of choice in a country by ceasing to reside there and, by ceasing to intend to reside there permanently or indefinitely.

When a domicile of choice is abandoned, either a new domicile of choice is acquired or the domicile of origin revives.

The domicile of a dependent person, namely a child (but not a wife) is in general the same as and changes with the domicile of the person on whom he/she is regarded as being legally dependent.

i.e. Domicile of a child under the age of sixteen, is: if legitimate, that of his father; if legitimated, from the time of legitimation the same as his father’s; or, if born out of wedlock or where the father is dead, that of his mother.

Case 4: S.19 Bermuda Immigration and Protection Act 1956: Persons with Qualifying Bermudian connections

A person may apply to the Minister of Immigration for the grant of Bermudian status under this section if: he is a Commonwealth citizen of not less than eighteen years of age; and has been ordinarily resident in Bermuda for the period of ten years immediately preceding his application; and he has a qualifying Bermuda connection.

The definition of a qualifying Bermuda connections is set out in the first Schedule A, to the Immigration Act, listed as categories A - D.

A person who at any time answered one of the following descriptions: (a) he was deemed to possess Bermuda status under Subsection 2 of Section 16 of the Act; or (b) he was deemed to be domiciled in Bermuda under the paragraph (e) of Subsection (1) of Section 5 of the Immigration Act 1937. He would have qualified under (a) or (b) above had he been a commonwealth citizen.

It is of note that a child born out of wedlock is to be treated as legitimate if being so treated, he would qualify through his mother under (a), (b) or (c) above.

A person who at any time possessed Bermudian status under this Act, except where his claim to possess such status depends solely on his rights under Subsection 2 of Section 16 of this Act or under Subsection 2 of Section 4 of the Bermuda Immigration and Protection Amendment Act 1980.

A person who at any time had been deemed to be domiciled in Bermuda under the Immigration Act 1937 by reason of residence in Bermuda for a number of years

A person who can show that he had an honest belief that he is a Bermudian and who in the Minister’s opinion had conducted himself in every day life as a Bermudian and has been accepted by the community of Bermuda as possessing Bermudian status. In forming that opinion, the Minister must be of the view that the following conditions are satisfied in relation to that person, that is to say that: although not in law possessing Bermudian status, he has: (a) worked in Bermuda free of control under part 5 of this Act; or (ii) he has obtained a ostensible title to land without being required to obtain a license from Government; or (iii) he has voted in a general election in Bermuda without being challenged; and (b) there is other evidence indicating generally that he has been accepted as a person possessing Bermudian status by persons dealing with him.

In considering an application by a person under Section 19, any period of residence outside of Bermuda for the period of education, may be considered by the Minister as residence in Bermuda, if the Minister were satisfied that but for the requirement to attend to education overseas, the individual would have otherwise resided in Bermuda. (This provision is carried over to subsequent sections where questions of residence arises).

The Minister shall not approve an application under Section 19 if an individual has been convicted of an offence, which in the Minister’s opinion shows moral turpitude on the applicant’s part or the applicant’s character or conduct otherwise in the Minister’s opinion disqualifies the applicant from the grant of the Bermudian status.

*The new cases subject to amendment of the Immigration and Protection Act 1956 <\m> See page 16 & 17 of then legislation.

Case 5: S.19A Bermuda Immigration and Protection Act 1956 - Right of Spouse to Bermudian Status

(A) A spouse of the holder of Bermudian status may apply where the spouse is a Commonwealth citizen and has been married to a Bermudian for ten years, and for the seven years preceding the application has been ordinarily resident in Bermuda and there is enclosed with the application a letter from the applicant’s spouse, supporting the application.

Insofar as the residence is concerned, the individual must have resided in Bermuda for the last two years immediately preceding the application and in calculating the seven-year residence, no residence in Bermuda other than ordinary residence for a continuous period of twelve months will be taken into consideration.

In considering the application, the Minister should not approve an application under the Section if:

in the Minister’s opinion, the applicant has been estranged from the applicant’s spouse within the period of two years immediately preceding the application; or the applicant has within the last seven years been convicted of a offence of moral turpitude; or the applicant’s character or previous conduct would disqualify him from the grant of Bermudian status.

(B) Right of Widow or Widower to Apply

An application may be made under the provisions under the section of 19A by the widow or widower of a Bermudian spouse who died before the application, and in such circumstances the application cannot be made until after the individuals would have been married for ten years and the individual must not have been estranged from his spouse within a period of six months immediately preceding the death of his spouse. The periods of residence must also be proved.

Case 6: Within S16(2) S.20 Bermuda Immigration and Protection Act 1956<$>

Any person who establishes to the satisfaction of the Minister that he has reached the age of 18 but is under the age of 22 years and has been ordinarily resident in Bermuda for the period of five years immediately preceding his application and he has for the five years immediately preceding his application been deemed to possess and enjoy Bermudian status under the provisions of Section 16 (2) of the Act. (Note: the educational residence provisions also apply to this category).

Case 7: S.20A Bermuda Immigration and Protection Act 1956 — Right of Certain Long-Term Residents to Bermudian Status<$>

A person may apply to the Minister under this Section for grant of Bermuda status if: he was born in Bermuda or first arrived in Bermuda before his sixth birthday; and he is a Commonwealth citizen of not less than 18 years of age, and he was ordinarily resident in Bermuda on July 31, 1989 and on the day of the commencement of the Bermuda Immigration and Protection Act 1994, (July 13, 1994); and has been ordinarily resident in Bermuda for the period of ten years immediately preceding his application; and makes his application on or before the July 31, 2008. (Note: the educational residence provisions also apply to this category).

Case 8: S.20B Bermuda Immigration and Protection Act 1956 Right to Bermudian Status in Certain Other Cases<$>

A person who is a Commonwealth citizen resident in Bermuda on July 31, 1989 and:

one of his parents possessed Bermudian status at the time of his birth and he was born or first arrived in Bermuda before his sixth birthday; is a British dependent territory citizen by virtue of the grant to him by the Governor of the Certificate of Naturalisation having been approved for the grant of Bermudian status; or is a woman who was naturalised a British Dependent Territories Citizen and thereby acquired rights under S.4(2) of the Bermuda Immigration and Protection Amendment Act 1980.

In either of these cases the applicant must have at least reached the age of 18 years of age and have been ordinarily resident in Bermuda for ten years preceding the application (The education provision also applies).

The White Paper Proposals

The White Paper Proposals can be effectively split into three categories. The first two deal with perceived hardship where families are split along Bermudian/non Bermudian lines and the third category deals with those who were registered to vote in 1976, but have not since been afforded status.

Dealing with Bermudian Status for hardship cases, the White Paper proposes that Bermudian Status would be afforded in certain cases to siblings of Bermudians and parents of Bermudians.

In both cases the successful applicants will need to comply with certain general requirements as follows: be of good character and conduct; be continuously ordinarily resident in Bermuda for at least twenty years immediately before making the application; may count education overseas as part of his/her ordinary residence in Bermuda; may count periods of ordinary residence in Bermuda both before and after residence overseas; and must apply before August 1, 2010.

In the case of an application based on Bermudian siblings, Bermudian Status will be granted to all those siblings of Bermudians who qualify and apply. In order to qualify, the long-term resident must fulfil the general requirements set out above and will have other siblings, all of whom are Bermudian.

In the case of applicants who apply based on their parentage of Bermudians, in order to qualify the applicant must fulfil the general requirements set out above, will have been continuously ordinarily resident of Bermuda for at least 20 years before August 1, 1989, and will have a child or children all of whom are Bermudian.

It is of note that the White Paper does point out that provisions will be made for the Minister of Labour and Home Affairs & Public Safety to consider other special hardship cases.

In addition to the above, the Government proposes that Bermudian Status will be afforded upon application to those persons who are Commonwealth citizens and who were registered to vote on the Parliamentary Register, on May 1, 1976. In order for such a person to qualify, he or she will need to comply with the general requirements set out above and be listed on the current Parliamentary Register as an elector.

It is of note that the provisions set out above are not at the present time Law in Bermuda, and will only become so after successful passage of amendments to the Immigration & Protection Act 1956 through Parliament, which is expected later this year.

Case 8: Loss of Bermudian Status: Section 22 Bermuda Immigration and Protection Act 1956<$>

It is of particular note that Section 22 of the Immigration and Protection Act 1956 formerly provided that Bermudian status could be lost in certain circumstances where a person had obtained Bermudian status and then subsequently resided outside of Bermuda for periods of five to seven years. These applied primarily to individuals who had received Bermudian status under Section 17 as having been domiciled in Bermuda by way of residence and to individuals who obtained discretionary grants of Bermudian status who subsequently left Bermuda for periods of five years. The provisions of Section 22 were considered to be unconstitutional and contrary to international law (in particular, Articles 13 and 15 of the Universal Declaration of Human Rights) and were subsequently deleted by the Immigration and Protection Amendment Act 1994 which came into effect on July 13, 1994.

A person however, can still lose their Bermudian status: where they cease to be a Commonwealth citizen; or where they are deemed to enjoy Bermudian status under the provisions of Section 16(2) of the Bermuda Immigration and Protection Act through a parent who ceases to possess Bermudian status; or where they reach the age of 22 years of age and do not other wise obtain Bermudian status; or they are adopted in such circumstances that they have no parents who possess Bermudian status.

Immigration law in the 21st Century