First Published in The Bermuda Chamber Of Commerce Newsletter (Chamber Insider), August 2021.
The Ministry of Labour has recently issued a policy paper, 'Securing Permanency for Long-Term Residents', setting out various proposed changes to immigration law aimed at providing new routes to a Permanent Residency Certificate ("PRC") for certain long-term residents ("LTRs") and others. The Government has said this initiative supports its priority of achieving a simplified, fair, and modern framework for immigration in Bermuda, and follows changes to the rules on 'Mixed-Status Families' that came into force in September 2020. This article discusses how the proposals will impact the existing position under the Bermuda Immigration and Protection Act 1956 ("Act").
While not the same as possessing Bermudian Status (e.g., they have no right to vote), non-Bermudians who hold a PRC experience certain advantages over those who do not. Most notably, a PRC holder has the right to reside and work in Bermuda without a work permit. A PRC can also provide the holder with a route to obtaining British Overseas Territory Citizenship via naturalisation, although there are additional criteria that must be satisfied.
Currently, there are only two ways in which PRC can be acquired.
Under section 31A of the Act, PRC is available for applicants who have qualified via the so-called 'job-makers' route under the Economic Development Act 1968 ("EDA"). Under s.3B of the EDA, a company can apply for designation as a company whose senior executives can request an exemption from needing a work permit. To qualify for this designation, the company must generally demonstrate that it:
- has at least 10 Bermudians on its staff;
- has Bermudians employed at all levels in the company;
- provides entry-level positions for Bermudians;
- has programmes in place for developing and promoting Bermudians; and
- exercises employment practices which have not regularly required the intervention of labour relations officers or the Human Rights Commission.
Once so designated, up to five of the company's senior executives may apply for a work permit exemption. Approval is conditional on, amongst other things, the applicant demonstrating that:
- they are responsible for making decisions that are critical to the continuity of the company in Bermuda; and
- the continued presence of jobs in Bermuda with the company for Bermudians is dependent on the applicant remaining in Bermuda.
Once approved, the senior executive may then apply for PRC provided he has been ordinarily resident in Bermuda for a period of at least 10 years, and has been resident in the two years immediately preceding the application. The current fee is $50,000.
Under section 31B of the Act, the son, daughter or spouse of most PRC holders can apply for their own PRC, provided, amongst other things, that they have been ordinarily resident in Bermuda for at least ten years (cumulatively) preceding the application. This route will close to new applicants after 31 August 2022.
As can be seen from the above, there is presently no method by which LTRs can acquire PRC purely by reason of the length of time they have resided in Bermuda. Similarly, there is no route to Bermudian status by reason purely of long-term residence.
This is an issue for many non-Bermudians who have made the island their home and integrated into their community, but whose security of residence is dependent on continuing to hold a work permit. The Government's proposal aims to address this issue by expanding the eligibility criteria for the granting of PRC under section 31A, to include any person who has been ordinarily resident in Bermuda for at least 20 years. While the policy paper states that this change is aimed at assisting "Persons who have continuously worked in Bermuda and seek to continue to make Bermuda their home", it does not appear that having worked (as opposed to merely having resided) in Bermuda will be a condition of acceptance, although the amending legislation remains to be seen.
The cost of the PRC application under section 31A is also to be reduced, from $50,000 to $10,000.
This change will be beneficial for LRT work permit holders, as well as their employers, who would no longer need to renew their work permits and pay the related fees.
The policy paper also sets out proposed changes to assist mixed-status families, under which the following categories of people will now be eligible for PRC:
- Persons who were born or arrived in Bermuda at an early age and have been ordinarily resident in Bermuda;
- A divorced or unwed parent of a Bermudian child;
- Children of first- and second-generation PRC holders who have been ordinarily resident in Bermuda.
These changes will assist, amongst others, non-Bermudian parents of Bermudian children, who would otherwise have had to leave the island after their child's 18th birthday, and second-generation PRC holders who are currently unable to pass PRC on to their children.
The current application fee for a PRC under section 31B will remain at $3,150.
Although PRC does not provide all of the benefits of Bermudian status, and the details of the amending legislation remain to be seen, these proposals will no doubt be welcomed by many individuals who will have a new option for securing their long-term future in Bermuda, as well as their employers.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.