The Supreme Court of Bermuda handed down a decision on 2 May 2014 which has ramifications for PRC holders who were ordinarily resident in Bermuda on 31 July 1989.

The decision involved a British national and a Portuguese national (the "Respondents") who had been issued Permanent Resident Certificates by the Minister of Home Affairs (the "Minister") and were naturalised as British Overseas Territories Citizens by the Governor. The Respondents each applied formally for Bermudian Status under Section 20B of the Bermuda Immigration and Protection Act 1956 (the "Act") each of which was refused by the Minister on the sole ground that Section 20B(2)(b) required the Respondents to have been approved for the grant of Bermudian status at the time of the granting of their certificates of naturalisation.

On appeal by the Respondents to the Immigration Appeal Tribunal ("IAT"), the IAT found that the Minister's interpretation of Section 20B(2)(b) was wrong and the Respondents were entitled to the grant of Bermudian status. On appeal by the Minister to the Supreme Court of Bermuda, the Supreme Court upheld the decision of the IAT and found that Section 20B(2)(b) did provide a valid basis for the Respondents as PRC holders to apply for Bermudian status. Although applications under Section 20B should ordinarily be made in tandem with a naturalisation application, in the Respondents' circumstances, the failure to follow the correct procedure was wholly technical, had no impact on the merits of the relevant applications and the Minister was under a positive duty to grant their applications.

In order to potentially acquire Bermudian status under Section 20B(2)(b), the PRC applicant must:

  • be a Commonwealth citizen;
  • have been ordinarily resident in Bermuda on 31 July 1989;
  • be a British Overseas Territories Citizen, having been naturalised under the British Nationality and Status of Aliens Act 1914, the British Nationality Act 1948 or the British Nationality Act 1981;
  • have reached 18 years of age before the application is made;
  • have been ordinarily resident in Bermuda for the period of ten years immediately before the application is made;
  • must not have been convicted of an offence of "moral turpitude"; and
  • must not, in the opinion of the Minister, be disqualified for the grant of status by reason of his character or conduct.

Where an applicant for Bermudian status has met the positive requirements under statute and a specified ground for refusing an application for Bermudian status does not arise, then the Minister is under a positive duty to grant Bermudian status.

The case marks a watershed in the interpretation of the Act by both the Bermuda court and practitioners alike. It remains to be seen whether the judgment will be further appealed by the Minister of Home Affairs.

Appleby will provide a more detailed brief and the judgment in due course.

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.