Chief Justice Ian Kawaley
Chief Justice Ian Kawaley

In response to Friday's (May 2) judgment regarding the matter of Carne and Correia, a Ministry of Home Affairs spokesperson offered the following.

A Ministry spokesperson said, "The Ministry of Home Affairs has followed this case very intently. The judgment regarding the matter of Carne and Correia, essentially means that there is, under current legislation, a pathway to status for Permanent Residence Certificate (PRC) holders.

"In short the Supreme Court is saying that if a PRC holder submits a naturalisation application to become a British Overseas Territory Citizen (of Bermuda) to the Department of Immigration at the same time as a status application under Section 20B(2)(b), and the Minister of Home Affairs ("the Minister") supports the naturalisation application which is subsequently approved by the Governor, the Minister must, save for various circumstances as set out in the Bermuda Immigration and Protection Act 1956 ("BIPA") grant the applicant Bermudian status under the said section."

The spokesperson continued, "This provision has existed for many years, which has only come to light as a result of PRC legislation.  It would appear the previous Government did not grasp the fact that provisions in the BIPA that were amended in 1994 would have this effect upon introduction of the PRC legislation in 2001. In other words, PRC legislation has seemingly created this unique circumstance. 

"The applicants in this case made enquiries of the Department of Immigration in 2012 about status under Section 20B of BIPA and were indeed told (correctly) that no such application procedure existed. Applications were eventually made to the Minister in 2013. The Minister rejected those applications on the basis that there had been no pre-approval for status under the BIPA. The Immigration Appeal Tribunal ("IAT"), which was a creation of statute in 2011 by the previous Government, overturned the Minister's decision. On appeal by the Minister, represented by Mr. Phil Perinchief to the Supreme Court, the IAT's decision was upheld and the Minister has consequently been directed to grant Carne and Correia Bermuda status. This decision by the Supreme Court obviously has wide ramifications for existing PRC holders.

"In order to become naturalised an individual must follow requirements as set out in the British Nationality Act 1981 (which is a UK legislative Act). That Act basically says that if the applicant is of good character; has been in Bermuda for a period of five years ending with the date of the application; and the applicant is not subject to any immigration restrictions for the 12 months preceding the application (among other conditions) - the applicant should, under most circumstances, be granted BOTC."

The spokesperson concluded, "In short, work permit holders will fall foul of the immigration restriction provisions, but PRC holders will not. Chief Justice Kawaley concluded in this judgment that Section 20B(2)(b) provides a valid basis for PRC holders to apply for Bermudian status. He indicated that applications under this section should ordinarily be made in tandem with the related naturalisation application and that technical violations of the application process should not effect the merits of such applications.

"The Minister of Home Affairs will review the decision carefully in order to consider whether to appeal the Chief Justice's judgment."