The Residency and Belonger Status Debacle Cont’d

Apr 17, 2023 Commentary 0 Comments

I have now had the opportunity to review the Immigration and Passport (Amendment Act, No. 5 of 2019, and Immigration and Passport (Amendment (No. 2) Act of 2019 (thanks again to the source).

NB: These Amendment Acts are no longer in force. They contained sunset clauses and ceased to apply on 1st February 2020 once the fast-track process concluded.
 
The pertinent section of the Immigration and Passport Act (the principal Act is section 16). Section 16 (2) provides three ways for a person to qualify to be granted a certificate certifying that the person belonged to the Territory.  These are under section 16 (3), under section 16 (4), and by marriage.
 
Section 16 (3)
 
Under subsection 3, they must (a) be of good character; (b) 18  years or older; (c) ordinarily resident in the Territory for a period of not less than ten years immediately prior to his or her application; (d) held a certificate of residence for not less than 12 months immediately preceding the application;  and (e) has restated his or her intention to make the Territory his or her permanent home.
 
Section 16 (4)
 
Under subsection 4, the Cabinet can grant the certificate of belongership, after consultation with the Board, to persons of good character, who, at the date of making the application, are ordinarily resident in the Territory for a period of at least 7 years immediately prior to his or her application.  Note, under this subsection, there is no need for the 12-month residence requirement prior, as under subsection 3.  This is important, and I will return to this.
 
By marriage
 
If the person is the spouse of a belonger and is ordinarily resident in the Territory with his or her spouse who is a belonger and they have been living together as husband and wife for at least five years.
 
Amendment Act No. 5 of 2019
 
This amendment sought to create the fast track system under section 16(4) by removing the need to consult with the Immigration Board (as is the requirement under section 16(3).  This should have worked since this subsection did not require the 12 months residence as under subsection 3.  However, under section 16(9)(c), the definition of ordinarily resident still required that that person was not, at any time in the period of 12 months so ending, subject to any restriction under the immigration laws as to how he or she might remain in the Territory.  This is the problem. In order for the fast track to work under section 16(4), this section, section 16(9)(c) should have also been amended/deleted. So, it does appear that this must have been an oversight of the then Attorney General, as it was the essence of the success of the fast-track system, as I understand it. In defence of the then AG, whom I have much respect for, pressure will always make mistakes.

So, I now believe that the Bill to be introduced in the HOA today on this matter is to rectify this issue and in so doing, validate the fast-track process and the legislation which purported to facilitate it.  The question as to which of these persons did not submit an application is still open for response, as the principal Act and all the amendments required submission of an application. We should hear more on this in the HOA today or once the relevant report is laid.
 
Greedy Bill
 
It is also my understanding that the Greedy Bill is not likely to be repealed, as the Government has been advised by the Attorney General that it should be dealt with in a comprehensive manner, addressing the legislators’ salaries and not in the same rushing way the amendments were dealt with, which has now gotten us in this place.
 
Reports to be laid in the HOA today
 

The reports which would be laid on the table in the HOA today are:
 
Report on Residency and Belonger Status Report and Addendum;
Report on Statutory Boards
Report on Discretionary Powers held by Elected Officials
 
As responsible citizens, we should all listen to the debates today to educate ourselves on the ongoing situation.

By Ayana Hull

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