Background: COI Recommendations -
Residence and belonger status: chapter 10
Recommendation B34 - recommended that all applications for and grants of residency and belongership status under the Fast Track scheme be the subject of a full audit performed by the Auditor General or some other independent person or body instructed by her, and a report on that audit be presented to the Governor.
688 Gate: The Fast Track System to Residency and Belongership.
Under a “fast-track” programme launched in July 2019, the BVI Government processed 1,321 new applications for belongership and 320 backlogged applications. Of those applications, 1,273 persons were approved. The public has recently been informed that of the 1,273, 688 of these approvals were invalid, as they did not meet at least one criterion of the application criteria. Many of these 688 persons have been registered to vote, and if not fixed, may taint the upcoming elections and open the elections up for challenge.
The Proposed Solution: Recalling the dissolved House of Assembly
Section 85 of the Virgin Islands Constitution Order 2007 states that if, between a dissolution of the House of Assembly and the next ensuing general election, an emergency arises of such a nature that, in the opinion of the Governor, it is necessary for the House to be recalled, the Governor may, acting after consultation with the Premier, summon the House that has been dissolved, and that House shall thereupon be deemed (except for the purposes of section 86) not to have been dissolved, but shall be deemed (except as aforesaid) to be dissolved on the date on which the next ensuing general election is held.
This is to say, to my mind at least, that on Monday, 17th April 2023, when the HOA is reconvened, it will be treated as not having been dissolved on 10th March 2023 and will now only be dissolved on 24th April 2023 (the date set for the general elections). Further, section 86 of the Virgin Islands Constitution Order 2007, which states, that a general election shall be held at such time within two months but not earlier than twenty-one days after every dissolution of the House of Assembly, will not apply for these purposes. That is to say: there is no need to defer the general elections beyond the currently set date.
What will the HOA do on Monday?
It is understood that the intention of the reconvening of the HOA is to validate the 688 persons in respect of whom it is purported to have been invalidly granted belonger status. It will seek to do so by way of introducing a Bill which validates the status of those persons. The rationale at this stage would appear to be that notwithstanding the “legal oversight or honest administrative error,” the qualifying year between obtaining residency in 2019 has now long elapsed, and such applicants would have qualified by the following year in 2020 in any event.
In the general course, there is a minimum ten-year requirement under the Immigration and Passport Act to qualify for residency. This provision conflicts, however, with a contradicting policy which have been utilised instead, requiring a minimum of nineteen years for residency, which is the standard I believe was used by the Government in 2019. There is also a provision where discretion can be used to grant residency after seven years, provided certain conditions are met. However, the provision is only to be used in exceptional circumstances. This Immigration and Passport Act was also said to be amended in 2019 to deal with the Fast Track Process. I have not been able to obtain a copy of the Amendment Act by the time of this writing.
Some issues to ponder:
1. We are not sure if all 688 applicants are in the same situation in terms of the qualifying period as it was then. This should certainly be confirmed on Monday by the HOA (i.e., the qualifying period used then and which applicants didn’t qualify).
2. There are also allegations that some of the applicants never applied for residency. I hope this is not the case, as if this is the case, then ratifying/validating a process for those applicants is gravely perfidious, as the only provision for approving residency under the Immigration and Passport Act without an application from a prospective applicant, is a provision to provide for the approval of persons who contributed to the economic and social development of the BVI over a period of fifty years. In any event, the people ought to know if there were indeed persons who did not apply, the number of such persons and specifically how this situation will be validated.
3. Hence, it would be helpful to know how many persons fell under the seven-year discretion and how many of those persons did or did not submit applications.
4. It would also be helpful to know how many persons fell under the ten-year discretion and how many of those persons did or did not submit applications.
5. It is also alleged that at least three members of the HOA may have been personally affected (whether directly or indirectly) by the process. It raises a question of conflict of interest; and whether those members will be allowed to vote on the matter.
6. If indeed there are those persons approved who did not meet the qualifying period in 2019 for residency at the time but have the requirements for both residency and belongership now, were there not other applicants in the same position as those persons now approved, who would have appreciated the opportunity to have paid the $1500 to enter the Fast Track lottery but are still in a queue somewhere?
7. If so, in light of these developments, was there procedural fairness to every and all the applicants in the queue? The principle of procedural fairness requires administrative tribunals to be unbiased in their selections and make decisions fairly.
8. Will this very serious issue really now be resolved with a ratifying resolution or validating legislation. Have those advising, in fairness, had reasonable time to consider all the elements and consequences?
9. Will this Bill to be introduced, propose to fix a problematic amendment from 2019 retrospectively?
10. Are these elections still not open to being challenged, notwithstanding these efforts to regularise the 688?
11. Can this mistake/error truly be fixed in an equitable manner, and if so, is it the best approach to put a band-aid resolution on it for the purposes of ensuring free and fair elections?
12. The Premier indicated that the general elections will still be held on 24th April as previously set. However, advanced voting actually begins this coming Thursday 20th April 2023. Will this process actually conclude satisfactorily by then?
13. Can the members of the HOA be expected to debate this weighty matter openly, honestly, and fairly three days prior to the commencement of elections without feeling that opinions voiced in such debates might affect votes in their favour, their re-election and ultimately their return to the HOA.
14. Can the 688 be excluded from the elections? A voter’s qualifications to vote in BVI general elections are set out in section 68 of the Virgin Islands Constitution Order 2007. The qualifications are linked to belongership. Once a person is deemed a belonger, then they qualify to vote. So, if the 688 are belongers as of today, then they are qualified to vote. But it appears that the 688 are not validly belongers as of today. However, I agree with the Governor that removing them from the voters’ list is not a safe option either, as that too has its consequences.
15. Importantly, the “right” to vote is not a fundamental right. If it was, it might have been easier to set it aside in this instance and scrub the voters’ list of the 688, as fundamental rights are not absolute rights. They can be set aside in the interests of defence, public safety, public order, public morality or public health etc. We will all recall that during the COVID-19 pandemic, the BVI government set aside our fundamental right to freedom of movement with the quarantine and curfew orders.
16. Now, thinking out loud, this gets more convoluted. If the 688 are not deemed belongers as of today, then they were erroneously added to the voters’ list during the required registration period. By the time they are validated this coming week, voters’ registration for this 2023 general elections will have closed. Is the integrity of the voters’ list still intact? Has this issue also been considered?
17. Are we at the bottom of this rabbit hole yet?
I don’t know the answers to all the questions raised above. I raise them seriously, as with the number of “mistakes” we have been making as of late, it might make sense not to act too hastily and compound our mistakes further with even more severe consequences to follow. I am not sure all the stakeholders have had enough time to properly digest the many permutations of this fundamental mistake. We are all yet still to see the report.
RETIRING ALLOWANCES (LEGISLATIVE SERVICE) (Amendment Act) - No. 15 of 2021
What about the Greedy Act?
Finally, as alluded to above, it appears from my reading of the Virgin Islands Constitution Order 2007, that the HOA will now be dissolved on 24th April 2023. I have never witnessed such a scenario in my entire lifetime. However, since we have another whole week to go in the HOA, the RETIRING ALLOWANCES (LEGISLATIVE SERVICE) (Amendment Act) - No. 15 of 2021, the “ Greedy Act” should be put on the HOA’s agenda for repeal.
The Premier and the Leader of the Opposition have already stated publicly that it will be repealed. The Lord has now made the way to keep them honest in their promise.
The Premier has also said he will not collect a dime under the Greedy Act in its current form and he will urge all of his colleagues to do the same. Well, if the Greedy Act is repealed before the HOA dissolves, he will ensure that he can keep that promise, as the obligation to make such payments will not have crystallized for the currently constituted HOA, since none of the current members of the HOA have yet been retired.
Monday, 17th April 2023, will commence yet another defining period in BVI history and political maturity. May we not mistake this gift horse as anything else but a divine opportunity to find ourselves on the right side of our decision-making this time. May it be a red-letter day for the BVI. In fact, may it be a red-letter week for us all. These Beautiful Virgin Islands and its people certainly deserve it!
By Ayana Hull