Attorney General Trevor Moniz *File photo
Attorney General Trevor Moniz *File photo

The Hon. Trevor Moniz J.P. M.P., Attorney General and Minster of Justice today said that Government has filed an appeal against the Chief Justice's Judgment in Carne and Correia.

In October of 2012 enquiries were made to the Department of Immigration about the right to Bermudian status under Section 20B of the Bermuda Immigration and Protection Act 1956 (“the Act”) – with the applicants at that time correctly being advised that no such application procedure existed.

In spite of this advice, applications were subsequently submitted to the Minister in 2013 at which time the Minister rejected the applications on the basis that there had been no pre-approval for Bermudian status under the Act.

Notwithstanding, the Ministers decision was overturned by the Immigration Appeal Tribunal (“the IAT”) with the matter eventually being appealed in the Supreme Court in January of 2014 with the Chief Justice ruling in favour of the applicants and stating in his summation, “the decision of the IAT directing the Minister to grant the Respondents’ applications for Bermudian status is accordingly affirmed.” This judgment now meant under the current legislation, a pathway to status for PRC holders was now possible.

In essence, the Supreme Court ruling says that if a PRC holder submits an application for naturalisation to become a British Overseas Territories Citizen (BOTC) (Bermuda) to the Department of Immigration at the same time he/she submits an application for Bermudian status under Section 20B(2)(b) of the Act, and 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 Act, grant the applicant Bermudian status under the said section.

And while this provision has existed for many years, it only came to light as a result of the original PRC legislation which would appear the previous Administration did not grasp the fact that provisions in the Act that were amended in 1994 would have this effect upon the introduction of PRC legislation in 2001. In essence, the PRC legislation has seemingly created this unique circumstance.

Since the judgment, the Chief Immigration Officer has reported that the Department has been inundated with applications for persons seeking status as a result.  And of this group, 115 have already been naturalised with a further estimated 1,340 possibly eligible to make an application for naturalisation.

Notwithstanding the anomaly in the legislation, the Ministry has sought the advice from a the Attorney-General’s Chambers as well as a Queen’s Counsel in the United Kingdom on the merits of appealing the Supreme Court judgment.

Whilst the advice received following an exhaustive review of this judgment by the aforementioned Counsel was not entirely favourable as far as the judgment being successfully overturned, the Ministry has nonetheless filed an appeal in this matter to the Court of Appeal which will allow the opportunity for further Government review of the matter.