The designation SOB is not as insulting as it may sound, but Spouses of Bermudians are still treated as second class citizens under current Bermuda Immigration policy.

Although most people understand that an SOB does not require a work permit, there is some confusion among companies as to whether they should give preference to a Bermudian applicant over an SOB applicant and also whether they are required to advertise a position before awarding it to an SOB.

The immigration law is drafted so that everyone, apart from specific exceptions, needs specific permission to engage in gainful employment in Bermuda under s.60(1)

Top of the list of exceptions is a person with Bermudian status. A person with "spouse employment rights" is another clear exception.

"Spouse Employment Rights" are set out under the provisions of section 60 of the Bermuda Immigration and Protection Act, 1956.

A non Bermudian has the right to be employed in Bermuda without Immigration control provided:

he or she is married to a person who possesses Bermudian status;

he or she is living together as husband and wife with his or her Bermudian spouse; and

his or her Bermudian spouse is ordinarily resident in Bermuda.

Reports have reached The Royal Gazette that recruitment agencies and human resources departments feel uncertain about whether they may place spouses of Bermudians in jobs that have not been advertised in case this constitutes some sort of infringement of immigration policy.

In fact the Bermuda Immigration and Protection Amendment Act 1994 conferred rights on spouses equal to Bermudians in the job search (in private companies).

However immigration policy is at variance with the legal position.

A Department of Immigration paper on work permit policies dated 1 April 2001 states that:

The order in which qualified people are to fill jobs in Bermuda are:

Bermudian;

non-Bermudian spouse (including the widow or widower ) of a Bermudian;

divorced parent of a Bermudian;

working resident's certificate holder

non-Bermudian with a qualifying Bermudian connection;

other non-Bermudians.

The policy document states: "An employer who applies to employ a non-Bermudian in a job for which there was a Bermudian applicant is required to give clear, satisfactory reasons for not employing the Bermudian.

"It should be appreciated, though, that the Ministry can only prevent the hiring of a non-Bermudian by the refusal to grant a work permit. The Ministry has no powers to force that a particular Bermudian be employed."

Nowhere does it state: "An employer who applies to employ a Spouse of Bermudian in a job for which there was a Bermudian applicant is required to give clear, satisfactory reasons for not employing the Bermudian."

Chief Immigration Officer Dr. Martin Brewer said that the policy has always been "Bermudians first" but agreed that since a spouse of Bermudian falls outside the work permit policy, it is difficult to implement. The usual penalty of withholding a work permit does not apply.

He confirmed that there was no legal requirement for a company to advertise a position before awarding it to a spouse.

However he said that the company might be under a moral duty to advertise that job before awarding it to a spouse of a Bermudian.

Asked how the Department of Immigration would penalise a company which failed to do so, Dr. Brewer said that theoretically, the so-called "good corporate citizen" status might come into it.

"The companies write in asking to be accepted as good corporate citizens and they show how they match the criteria of work permit policy," he said.

If it came to the Department's attention that a company was not putting Bermudians first, they might jeopardise that status which allows certain privileges such as fast track applications and permissions in principle, he added.

Asked if a company that had a large proportion of spouses of Bermudians would be given credit for not hiring non-Bermudian expatriates, Dr. Brewer said: "A high proportion of spouses in preference to expatriates is a plus, but then we would ask how many Bermudians do you have and that should be weighed in there too."

Dr. Brewer said that if the company believed that there might be Bermudians who were interested in that job, then the best practice would be to advertise. Would a company be less likely to receive good corporate citizen status if it was reported that they had filled positions with spouses without having advertised those positions?

Dr. Brewer said: "It might have some bearing if there had been complaints."

A top immigration lawyer said: "What is happening is that the Government is making it up as they go along. It is not too clear how they implement it."

Dr. Brewer denied the policy was unclear, saying: "Where to your view a policy is unclear, to us, it's flexible.

"It allows a latitude. If it's questioned, perhaps we would have to reintroduce some sort of work permit. That would be messy."

Asked if a better solution might be to put Spouses of Bermudians on exactly the same footing as Bermudians, Dr. Brewer said: "Yes that's a suggestion, but this is the way the Government has decided that the policy should be...."

He said the policy had been the same under the previous government: "The policy has always been this way, since I can remember it's always been Bermudians first."

Drawing a distinction between law and policy, Dr. Brewer said: "They (policies) are a view, this is the view that the government takes, this is the view that companies should take."

He said the issue was not a pressing one because there is little competition for jobs between Spouses of Bermudians and Bermudians.

Asked whether it is equitable that Spouses of Bermudians should be treated differently in Bermuda, while a Bermudian spouse of a UK citizen has exactly the same rights as his or her UK spouse in the United Kingdom, Dr. Brewer commented: "Britain has hardly any foreign workers, they do not have 22 percent foreign workers which threaten to displace the local workforce," adding: "Spouses do almost have equal footing here."