Foreign Spouse Licence Deadline Extended

The deadline for the new regulation requiring Bermudians who live with or are married to non-Bermudians to obtain a land licence has been extended from June 22, 2010 to December 31 2010. Effective that date, property owning couples of whom one is non-Bermudian, must obtain licences costing $1,375.00.

Minsiter of Immigration Colonel Burch said “it is offensive to me – as a born Bermudian to hear the demands that foreigner spouses should have all the rights and privileges of Bermudians on the day of their marriage. This can’t be right when the very same foreign country does not extend the same rights of their nationals to the Bermudian spouse.” He also went on to explain that he has experienced Bermudians “while madly in love demand all the rights and privileges for their non Bermudian spouse – who then have no shame when the marriage goes sour – to attend at Immigration demanding that I order the foreign now ex-spouse off the Island.”

As per the Bermuda Immigration and Protection Amendment Act 2007, people in default of this law could end up being imprisoned or fined a substantial amount. The Act had previously restricted couples with one foreign spouse from purchasing a multi unit dwelling, and also restricted them from multiple property purchases. You can read more details of the Act here.

The full statement by Colonel David Burch follows below:

Madam President, the challenge of estimating how much land is owned by non-Bermudians dates as far back as 1976 when the then Minister of Labour and Immigration acknowledged this problem when he stated “I conclude that there was a possibility that the 2,000 acres has been exceeded.”

Madam President, I have had responsibility for the Department of Immigration since the 20 December 2007 – almost 6 months after the implementation of the Bermuda Immigration and Protection Amendment Act 2007. Since assuming that responsibility I have repeatedly pleaded in this place and elsewhere for those restricted persons to comply with the law and validate their ownership of land.

This validation process is being undertaken to assist Government in establishing an accurate count of the land held by restricted persons so that we can establish that no more than 400 acres are held under licence in any one parish or 2,000 acres for the entire Island. This restriction is set out in section 89 of the Bermuda Immigration and Protection Act 1956.

Madam President, over the past three years the Department of Immigration and the Registry General’s Office have collaborated to ensure that several information newsletters that detail licence holders’ legal responsibility as well as useful background information and guidance on how a licence should be validated were circulated to the public in addition to being placed on the Department of Immigration’s website.

Madam President, as one might expect, given our propensity to leave things to the eleventh hour, restricted persons have virtually ignored these requests. As such the moratorium on the sale of land to foreigners was extended for a further two year period earlier this year.

Madam President, not even that amendment which detailed specifically that the moratorium was being extended but not the amnesty period prompted those restricted persons or their legal representatives to act.

Madam President, additionally restricted persons who legally acquired land may have, over the years, sold that land to Bermudians or to other non-Bermudians. In order that we accurately calculate the total acreage owned by restricted persons, we must ensure that we do not count land that now belongs to Bermudians. As a result, we required restricted persons who lawfully acquired land, registered that acquisition and then either acquired Bermudian status or disposed of the land to either Bermudians or non-Bermudians, to advise the Registry General’s Office on or before the 22 June 2010 deadline.

Madam President, it will come as no surprise to you that the cries of the conveyancing Bar of confusion surrounding the amendments and their inability to adequately advise their clients rings more than a little hollow as they have sat for almost three years and done nothing.

I am not a lawyer – and with the greatest respect to the Attorney General – laws are drafted by lawyers and if members of that profession cannot follow simple instructions and adequately advise their clients – then perhaps they should seek a different line of work. To simply criticise the law at this eleventh hour is really an admission of incompetence.

That said, Madam President, I note the attempts by the legal fraternity to characterise this amendment as purely one of an assault on foreign spouses of Bermudians and before I address that – let me state categorically that Bermudians who marry foreigners are not in the same category as Bermudians who marry Bermudians. How could they be – they are not Bermudian.

Madam President, it is offensive to me – as a born Bermudian to hear the demands that foreigner spouses should have all the rights and privileges of Bermudians on the day of their marriage. This can’t be right when the very same foreign country does not extend the same rights of their nationals to the Bermudian spouse.

And let’s be equally clear – I have been in this job long enough to experience those Bermudians who while madly in love demand all the rights and privileges for their non Bermudian spouse – who then have no shame when the marriage goes sour – to attend at Immigration demanding that I order the foreign now ex-spouse off the Island.

Happily, Madam President, the law is written to first protect the rights of Bermudians (in spite of ourselves) but also the rights of the foreign spouse – who oftentimes is the parent of Bermudian children and I can say without fear of contradiction, that under this Government, the law is applied fairly across the board.

Madam President, I note with some interest and amusement the bleating of the three Opposition legal critics of this amendment – Barritt, Moniz and Pettingill – who while claiming to represent the poor foreign spouses of Bermudians never mention their own potential criminal behavior or that of their firms in the fronting of land purchases that this amendment was also designed to address. You will well know, Madam President, with three lawyers in a room – you get about six opinions.

There is also the question of Trusts, Madam President, which have been used extensively by several law firms to hide their criminal activities. These trusts have been used to purchase property on behalf of restricted persons that are both below the ARV allowed or in some cases a second or third property – in complete contravention of the law. It is this criminal behaviour specifically that these amendments are designed to correct. A number of these “Trustees” have been directed by the Chief Immigration Officer to dispose of those properties before the June 22nd deadline or face prosecution.

Madam President, I am in no doubt that it is the promise of criminal prosecution that has fuelled much of the hysteria emanating from the Conveyancing Bar.

Madam President, don’t be fooled by the most recent outcry – it is from a group of people fuelled primarily by greed who fear quite correctly that they stand to be prosecuted to the fullest extent of the law.

Madam President, there are many foreign spouses of Bermudians who for any number of reasons have not applied for Bermuda Status under the terms of the Act as spouses of Bermudians in spite of the fact that in some cases they have served well in excess of the requirement of 10 / 7 / 2 – that is to say have been married to the same Bermudian for 10 continuous years, during that marriage has been ordinarily resident in Bermuda for 7 years, the last 2 years of which must be continuously living together.

Madam President, in an attempt to assist those persons who not only fall into this category but also those whose land should no longer be registered as licensed land – yesterday I secured the approval of Cabinet to extend the deadline by which land licences are to be obtained by restricted persons under Part VI of the Bermuda Immigration and Protection Act 1956 which was enacted on 22 June 2007 by the Bermuda Immigration and Protection Amendment Act 2007 from June 22nd, 2010 to December 31st 2010.

Madam President, this reprieve will also afford those spouses eligible for Bermudian status under section 19A of the principal Act but who have not as yet filed for status to do so. The normal processing time for these types of completed status applications for Commonwealth citizens is three months – so those people who qualify for status and can secure certification before the December 31 deadline will not need a licence. The distinction is made here between Commonwealth citizens because those who are not must first be naturalized as British Overseas Territories Citizens before acquiring Bermuda Status – a process that takes longer than the three months mentioned earlier. This will not only obviate the need for these persons to obtain a land licence, but will be a small financial savings as they need only supply the status application fee and not both fees.

Madam President, I recognize that this extension will also impact on other categories of persons. Specifically, those requiring land licences to regularize circumstances where either a licence was not originally needed and the 2007 amendment imposed that requirement, or where attempts to circumvent the licence requirements were made and parties now realize the serious consequences of falling foul of the provisions. These persons also benefit from the extension as generally, the amnesty period will be enlarged by the insertion of a new definition of “transitional period” and referring to it as necessary throughout the detailed transitional provisions in Part II of the 2007 Amendment.

Only this year have attempts been made by the legal fraternity to consult with both the Attorney General and the Ministry’s in-house counsel on the perceived challenges with this legislation. I have directed that our technical officers, led by in-house counsel immediately explore these complaints with a view to further refining or clarifying the law before the new December deadline.

Madam President, through the tremendous efficiency of the Attorney General personally and her Chambers, I expect the amended Bill outlined above will be tabled in another place this Friday and while we will not make the June 22nd, deadline – it provisions will be retroactive.

Madam President, I cannot stress enough how important this exercise is to the future of Bermuda, not only from the point of view of simple compliance with the law – but more importantly to ensure that there are land owning opportunities for future generations of Bermudians.

I urge all those affected by this legislation to use the time between now and December wisely and comply with the law. Take advantage of the information provided on the Immigration website and don’t be reluctant to seek assistance from staff in the Department of Immigration – it is free.

Thank you, Madam President.

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