Bermuda Immigration And Protection Amendment Act 1994

Link to law: http://www.bermudalaws.bm/Laws/Annual%20Laws/1994/Acts/Bermuda%20Immigration%20And%20Protection%20Amendment%20Act%201994.pdf

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now
Bermuda Immigration And Protection Amendment Act 1994
The Laws of Bermuda
Annual Volume of Public Acts 1994 : 23

1

167

BERMUDA
1994 : 23

BERMUDA IMMIGRATION AND PROTECTION AMENDMENT
ACT 1994

[Date of Assent 13 July 1994]

[Operative Date 13 July 1994]

WHEREAS it is expedient to amend the Bermuda Immigration
and Protection Act 1956:

Be it enacted by The Queen's Most Excellent Majesty, by and
with the advice and consent of the Senate and the House of Assembly of
Bermuda, and by the authority of the same, as follows:

Short title
1 This Act may be cited as the Bermuda Immigration and
Protection Amendment Act 1994.

Interpretation
2 In this Act, unless the context requires otherwise—

"the Act" means the Bermuda Immigration and Protection Act
1956;

"section" means section of the Act.

Repeals and replaces s 16(1)
3 Section 16(1) is repealed and the following subsection is
substituted—

BERMUDA IMMIGRATION AND PROTECTION AMENDMENT
ACT 1994

2

168

" (1) A person shall possess Bermudian status for the
purposes of this Act if he is a Commonwealth citizen and
possesses that status by virtue of this Part (apart from
subsection (2) of this section); and such a person, and a person
described in subsection (2) of this section, shall continue to
possess, or, in the case of a person described in subsection (2)
of this section, shall continue to be deemed to possess and
enjoy, Bermudian status unless and until he loses that status by
reason of the operation of section 22.".

Repeals and replaces ss 19 to 20A
4 Sections 19, 19A, 20 and 20A are repealed and the following
sections are substituted—

"Right of persons with Bermudian connection to Bermudian
status
19 (1) A person may apply to the Minister under this
section for the grant of Bermudian status if—

(a) he is a Commonwealth citizen of not less than
eighteen years of age; and

(b) he has been ordinarily resident in Bermuda for
the period of ten years immediately preceding
his application; and

(c) he has a qualifying Bermudian connection.

(2) The First Schedule A shall have effect for the
purpose of determining whether a person has a qualifying
Bermudian connection under paragraph (c) of subsection (1).

(3) In relation to subsection (1)—

(a) where any question arises as to a person's
ordinary residence in Bermuda, that question
shall be decided by the Minister;

(b) where an applicant under this section has been
ordinarily resident in Bermuda, and has then
been absent from Bermuda for any period for
the purpose of his education outside Bermuda,
the Minister may count that period of absence
as a period of ordinary residence in Bermuda if
the Minister is satisfied that, but for that period
of absence, the applicant would have in fact
continued to be ordinarily resident in Bermuda;

The Laws of Bermuda
Annual Volume of Public Acts 1994 : 23

3

169

(c) nothing in paragraph (a) or (b) shall have effect
so as to preclude any applicant from appealing
to the Cabinet under subsection (8) on the
ground that the Minister came to a wrong
decision on the question whether during any
material period he was or was not ordinarily
resident in Bermuda.

(4) The Minister shall not approve an application
under this section if—

(a) the applicant has during the period mentioned
in paragraph (b) of subsection (1) been
convicted, whether in Bermuda or elsewhere, of
an offence which, in the Minister's opinion,
shows moral turpitude on the applicant's part;
or

(b) the applicant's character or conduct otherwise
in the Minister's opinion disqualifies the
applicant for the grant of Bermudian status,

but otherwise the Minister shall approve the application if the
requirements of this section have been satisfied.

(5) The Minister may require an applicant under this
section to attend before him in support of his application, but,
unless so required, such an applicant is not entitled to appear
before the Minister.

(6) Where the Minister approves an application under
this section, he shall forward to the applicant a certificate of
Bermudian status which specifies the effective date of the grant
of that status and is otherwise in a form approved by the
Minister.

(7) Where the Minister rejects an application under
this section, he shall inform the applicant of the rejection and of
his right to appeal to the Cabinet under subsection (8).

(8) A person who is aggrieved by the Minister's
rejection of his application under this section may, subject to
section 124, appeal to the Cabinet against the rejection.

(9) Where a person's application under this section has
been rejected, another such application by him need not be
considered within 12 months of the date of the rejection.

BERMUDA IMMIGRATION AND PROTECTION AMENDMENT
ACT 1994

4

170

Right of spouses to Bermudian status
19A (1) A person may apply to the Minister under this
section for the grant to him of Bermudian status.

(2) This section applies to any person who is a
Commonwealth citizen and in relation to whom the following
requirements are fulfilled—

(a) for the period of ten years immediately preceding
the application the applicant has been married
to a spouse who throughout that period
possessed Bermudian status;

(b) for a period of seven years preceding the
application the applicant has been ordinarily
resident in Bermuda;

(c) there is enclosed with the application a letter
from the applicant's spouse supporting the
application.

(3) In construing subsection (2)(b), the following rules
shall apply—

(a) the applicant must have been ordinarily resident
in Bermuda for the period of two years
immediately preceding the application;

(b) the applicant must have been married to the
same spouse for the whole of the seven years in
question;

(c) in calculating those seven years, no residence in
Bermuda other than ordinary residence for a
continuous period of twelve months or more
(being a period during which the applicant was
married to the spouse referred to in paragraph
(b)), shall be taken into account.

(4) The Minister shall not approve an application
under this section if—

(a) 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

(b) the applicant has between the earliest date of
the period mentioned in subsection (2)(b) and

The Laws of Bermuda
Annual Volume of Public Acts 1994 : 23

5

171

the date of the application been convicted, whether
in Bermuda or elsewhere, of an offence which, in
the Minister's opinion, shows moral turpitude on
the applicant's part; or

(c) the applicant's character or previous conduct
otherwise in the Minister's opinion disqualifies
the applicant for the grant of Bermudian status,

but otherwise the Minister shall approve the application.

(5) An application may be made under this section by
a person who was married to a spouse possessing Bermudian
status (a "Bermudian spouse") but whose Bermudian spouse
died before the application was made, but in relation to such a
person this section shall apply without modification up to the
time of the death of the Bermudian spouse and, as respects the
time after the death of that spouse, shall apply with the following
modifications—

(a) subsection (2)(a) shall be deleted and it shall be
provided instead that the application must be
made not earlier than ten years after the
marriage to the Bermudian spouse was
celebrated or after the Bermudian spouse
acquired Bermudian status, whichever of those
events occurred later;

(b) subsections (2)(c) and (3)(b) shall be deleted;

(c) subsection (3)(c) shall be amended by deleting
the brackets and the words within them and
substituting "(being a period occurring after the
marriage to the Bermudian spouse was
celebrated or after the Bermudian spouse
acquired Bermudian status, whichever of those
events occurred later)";

(d) subsection (4)(a) shall be deleted and it shall be
provided instead that the applicant must not, in
the opinion of the Minister, have been estranged
from the applicant's Bermudian spouse at or
within the period of six months immediately
preceding the death of the Bermudian spouse.

(6) Subsections (3) and (5) to (9) of section 19 shall
have effect mutatis mutandis in relation to applications under

BERMUDA IMMIGRATION AND PROTECTION AMENDMENT
ACT 1994

6

172

this section as those subsections have effect in relation to
applications under section 19.

Right of persons within s 16(2) to Bermudian status
20 (1) A person who establishes to the satisfaction of the
Minister that—

(a) he has reached the age of 18 years but is under
the age of 22 years; and

(b) he has been ordinarily resident in Bermuda for
the period of five years immediately preceding
his application; and

(c) he has for the five years immediately preceding
his application been deemed to possess and
enjoy Bermudian status by virtue of section
16(2),

shall, on applying to the Minister, be entitled to have Bermudian
status granted to him.

(2) Subsections (3) and (5) to (8) of section 19 shall
have effect mutatis mutandis in relation to applications under
this section as those subsections have effect in relation to
applications under section 19.

Right of certain long-term residents to Bermudian status
20A (1) A person may apply to the Minister under this
section for the grant of Bermudian status if—

(a) he was born in Bermuda or first arrived in
Bermuda before his sixth birthday; and

(b) he is a Commonwealth citizen of not less than
eighteen years of age; and

(c) he was ordinarily resident in Bermuda on 31
July 1989 and on the day of commencement of
the Bermuda Immigration and Protection
Amendment Act 1994; and

(d) he has been ordinarily resident in Bermuda for
the period of ten years immediately preceding
his application; and

(e) he makes his application on or before 31 July
2008.

The Laws of Bermuda
Annual Volume of Public Acts 1994 : 23

7

173

(2) Subsections (3) to (9) of section 19 shall have effect
mutatis mutandis in relation to applications under this section
as those subsections have effect in relation to applications under
section 19.

Right to Bermudian status in certain other cases
20B (1) A person may apply to the Minister under this
section for the grant to him of Bermudian status.

(2) This section applies to a person who is a
Commonwealth citizen not possessing Bermudian status, was
ordinarily resident in Bermuda on 31st July 1989 and either—

(a)(i) is a person at least one of whose parents
possessed Bermudian status at the time of
his birth; and

(ii) was born in Bermuda or first arrived in
Bermuda before his sixth birthday; or

(b) is a British Dependent Territories citizen by
virtue of the grant to him by the Governor of
a certificate of naturalisation under the
British Nationality and Status of Aliens Act
1914 (U.K.) or the British Nationality Act
1948 (U.K.) or the British Nationality Act
1981 (U.K.), having been approved for the
grant of Bermudian status; or

(c) being a woman, is a British Dependent
Territories citizen by virtue of the grant to
her by the Governor of registration under
section 6(2) of the British Nationality Act
1948 (U.K.) with the result that she thereby
acquired rights under section 4(2) of the
Bermuda Immigration and Protection
Amendment Act 1980,

and in relation to whom in addition the requirements of
subsection (3) are fulfilled.

(3) The requirements referred to in subsection (2), in
relation to an applicant for the grant of Bermudian status under
this section, are as follows—

(a) the applicant must have reached the age of
eighteen years before the application was made;

BERMUDA IMMIGRATION AND PROTECTION AMENDMENT
ACT 1994

8

174

(b) the applicant must have been ordinarily resident
in Bermuda for the period of ten years
immediately preceding the application.

(4) Subsections (3) to (9) of section 19 shall have effect
mutatis mutandis in relation to applications under this section
as those subsections have effect in relation to applications under
section 19.".

Amends s 21(1)
5 Subsection (1) of section 21 is amended—

(a) by deleting the phrase "section 17, 18 or 18A" where it
appears the first and third times and substituting the
phrase "this Part";

(b) by deleting "section 17, 18 or 18A:" and substituting "the
section in question, specifying the section:".

Amends s 22
6 Section 22 is amended—

(a) by deleting paragraphs (b) and (c) of subsection (1);

(b) by deleting the phrase "section 19 or 19A or 20A(2)" from
subsections (3) and (5) and substituting the phrase
"section 19 or 19A or 20A or 20B(2)".

Amends s 60
7 Section 60 is amended—

(a) by deleting "special category person," from paragraph (b)
of subsection (1), substituting "special category person;
or" and adding as paragraph (c)—

"(c) other than a person who for the time being
has spouse's employment rights,";

(b) by deleting subsection (3) and substituting the following
subsections—

" (3) For the purposes of paragraph (c) of
subsection (1), a person shall have spouse's employ-
ment rights—

(a) who is married to, or is the widow or
widower of, a person possessing Ber-

The Laws of Bermuda
Annual Volume of Public Acts 1994 : 23

9

175

mudian status (a "Bermudian spouse"); and

(b) who is living as husband and wife with
that person's Bermudian spouse, or,
where that spouse died, so lived up to
the time of the death; and

(c) whose Bermudian spouse is ordinarily
resident in Bermuda or, where that
spouse died, was so resident up to the
time of the death.

(4) In relation to the requirements of ordinary
residence and living as husband and wife mentioned in
subsection (3)—

(a) where any question arises whether a
person was ordinarily resident in Ber-
muda, or was living as husband and
wife with anyone in Bermuda, that
question shall be decided by the
Minister;

(b) where a person has been ordinarily
resident in Bermuda, or has been living
as husband and wife with someone in
Bermuda, and has then been absent
from Bermuda for the purpose of that
person's education outside Bermuda,
the Minister may count that period of
absence from Bermuda as a period of
ordinary residence in Bermuda or, as
the case may be, as a period during
which that person was living as
husband and wife with someone in
Bermuda, if the Minister is satisfied
that, but for that period of absence, the
person in question would in fact have
continued to be ordinarily resident in
Bermuda, or, as the case may be, to live
as husband and wife with someone in
Bermuda.

(5) In subsection (3), the expressions "widow"
and "widower", in relation to a deceased spouse, mean

BERMUDA IMMIGRATION AND PROTECTION AMENDMENT
ACT 1994

10

176

the person surviving the deceased spouse regardless
whether the survivor remarries.".

Repeals sections 61A to 61E
8 Sections 61A, 61B, 61C, 61D and 61E are repealed.

Adds new Schedule to Act
9 There is inserted in the Act next before the First Schedule the
Schedule set forth in the Schedule to this Act.

SCHEDULE (Section 9)

FIRST SCHEDULE A (Section 19(2))

Persons with a Qualifying Bermudian Connection

1. For a person to have a qualifying Bermudian connection under
section 19 of this Act, he must fall within a class of a description set
forth in paragraph 2; and those descriptions are subject to paragraphs 3
and 4.

2. The classes of persons referred to are—

A a person who at any time answered one of the following
descriptions—

(a) he was deemed to possess Bermudian status
under subsection (2) of section 16 of this Act;

(b) he was deemed to be domiciled in Bermuda
under paragraph (e) of subsection (1) of section
5 of the Immigration Act 1937;

(c) he would have qualified under (a) or (b) above
had he been a Commonwealth citizen.

Note: a child born out of wedlock is to be treated as
legitimate if, by being so treated, he will qualify through
his mother under (a) or (b) or (c) above;

B 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;

The Laws of Bermuda
Annual Volume of Public Acts 1994 : 23

11

177

C 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;

D a person who, in the Minister's opinion, 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—

(a) although not in law possessing Bermudian
status—

(i) he has worked in Bermuda free of
control under Part V of this Act; or

(ii) he has obtained ostensible title to land
without being required to obtain a
licence from the 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.

3. The requirements specified in paragraph 2 must have been
satisfied throughout the period mentioned in paragraph (b) of subsection
(1) of section 19 of this Act.

4. In considering an application under section 19 of this Act, the
Minister shall apply the law in force at the time he is considering the
application, whether or not that law is different from the law in force at
the time when any event or circumstance forming part of the facts
underlying the application occurred.

BERMUDA IMMIGRATION AND PROTECTION AMENDMENT
ACT 1994

12

178

[this page intentionally left blank]