Regularisation - Residency And Belonger Status
To the Hounourable Premier and Government of the Virgin Islands.
On Tuesday, 7 May 2019 you issued an official statement entitled “CLEAR PATH TO REGULARISATION: RESIDENCY AND BELONGER STATUS” and we wish to categorically oppose the flawed premises used to support your illegal move and express our disappointment in the process you have taken to blind side our people.
The VIP Manifesto can be said to be a contract between the people and the Government with an overwhelming majority in the House of Assembly. In it, at page 23, your government promised to establish an immigration and labour reform committee to ensure that our systems are fair but always putting BVIslanders and Belongers first. Again, at page 85, your government recognizes the challenge of immigration and promised a new comprehensive immigration policy, by conducting a comprehensive study on immigration, as well as review and revise the current immigration policy in relation to Permanent Residence and Belonger Status. Again, on page 86, your government proposed to regularize the status of long-term residents without status, including persons reared in the Virgin Islands. However, while your government has started the regularization process, you have strategically left BVIslanders and Belongers out of the equation, and have failed to put us first in your priorities by starting this process without a comprehensive study on immigration, or an immigration and labour reform committee, as you promised, nor have you consulted with Virgin Islanders. At page 74 of the VIP Manifesto, your government committed to organizing regularly scheduled town hall meetings on matters of interest or concern to various stakeholders, as well as organizing a series of community-based meetings on major projects in advance of their planning and implementation to get and use the feedback of all stakeholders and other events. A primary aspect of good governance is public participation in the democratic process, which extends far beyond the right to vote. Our people have a right to know, and a right to expect their representatives to act on their behalf on matters that concern them. Your government failed to come to the people of this Territory about this regularization programme before your announcement on 7 May 2019, and there is no transparency in the process about how the decision for the regularization came about. In particular, a review of every Cabinet decision since your government took office reveals that the only time an amendment to the Immigration and Passport Act (Cap. 130), or any discussion about immigration, was at the 24 April 2019 meeting, at which the ill-advised amendment to add a new section 24(A) to the Immigration and Passport Act was authorized by Cabinet. While we have not, as of the date of this letter, seen the Cabinet decisions for the meeting held on 7 May 2019, the same date of your official statement of the regularization, no other Cabinet decision was taken with respect to this regularization initiative. You also claimed that what you are doing is the right thing on many fronts, and we say that what you are doing is wrong in each of these.
(a) The Moral Front
In your official statement you indicated that “a nation without a conscience, soon loses its soul”, seems to suggest that to do otherwise than to embark on this regularization initiative would be unconscionable and those who do not support your policy lack a conscience. You seek to buttress that claim by claiming that it is moral and just to do so, since we of Christian faith see this as our duty and relied on a passage from Jeremiah 22:3. We quote the preamble to the Virgin Islands Constitution Order 2007 as follows:
“Acknowledging that the society of the Virgin Islands is based upon certain moral, spiritual and democratic values including a belief in God, the dignity of the human person, the freedom of the individual and respect for fundamental rights and freedoms and the rule of law;
. . .
“Recognizing that the people of the Virgin Islands have a free and independent spirit, and have developed themselves and their country based on qualities of honesty, integrity, mutual respect, self-reliance and the ownership of the land engendering a strong sense of belonging to and kinship with those Islands”
Therefore, our pride of place and self-worth is intrinsically tied to our identity as a people and our sense of belonging to these islands. Our moral compass guides us to always be true and fair to everyone who visits our shores and for this we have developed a thriving tourist economy where we welcome about 350,000 visitors a year who often speak of the warmth of our people as we follow our moral duty in Hebrews 13:2 to show hospitality to strangers for in doing so we may entertain angels unawares. Currently 70% of our population are non-Belongers and using pre-Irma figures, we had a population of approximately 30,000 people, so that approximately 21,000 people in our country are expatriates and approximately 9,000 people are comprise those people our Constitution says has “a strong sense of belonging to and kinship with those Islands”. Despite our compassion for strangers who occupy our land, we are guided by Deuteronomy 17:14-17 which teaches us when we are in the land of promise, God will chose our leader, but we must never put a foreigner over us, but our brother, and while we continue to live out our moral commitment to strangers among us, we also heed our moral commitment to ensure that our moral, spiritual and democratic values are respected to maintain the social cohesion that is necessary in any society. Therefore, there is nothing morally wrong or unconscionable about our concerns over your proposed regularization.
Our country already adds hundreds of residents and belongers to its numbers every year. The strategy cannot be about increasing those numbers, but must be about ensuring that the right people with the best interest of our people and society at heart are awarded this privilege. Bermuda is a society that has only awarded 17 belonger status in 50 years, while we continue to provide many more and so to question our moral turpitude in this regard would be unreasonable. There is a great need to review our immigration policies, including residency and belonger status, but to rush this process that will cause irreparable harm to our society is immoral.
(b) The Economic Front
You claim in your official statement that this regularization initiative will make people more comfortable to invest in our society. If in fact a priority of your government is to attract new investors, the residency by investment strategy is not the most profitable, as shown by the many countries that offer the “citizenship by investment” schemes which damage their international reputation and may have a significantly negative effect on our financial services industry. Foreign Direct Investment (FDI) flows provide capital to stimulate economic growth and development, especially in post-Irma Virgin Islands, and it transfers technology and know-how. The key attractions for FDI inflows are workforce skills and productivity aspects, therefore, while better labour laws is important to FDI inflows, residency and belonger status are not. More emphasis should be placed on developing the H. Lavity Stoutt Community College’s capacity to develop workforce skills, as well as infrastructural development to promote enterprise development, such as telecommunications, roads and ports, sustainable water solutions and a modern energy policy, which would make us competitive within the regional market for the FDI inflows into the Caribbean. Therefore, your regularization proposal will not achieve the investment results you desire.
Additionally, there are potential serious negative effects of your proposal on our economy. In particular, the oversaturation of the market with persons who will be getting trade licenses as a direct result of the increased number of residency and belonger status being awarded. Rather than policing the Non-Belonger Land Holding Licenses that we now have being issued, we will be significantly cutting down on the Non-Belonger Land Holding Licenses. The revenues for work permit for 2017 was approximately $6 million and it more than doubled in 2018. While there will be significant losses in that area due to this proposal, it needs to be clear that residency and belonger status is not a right based on the length of time a person resides in a country.
The Cayman Islands previously had a similar programme that ultimately destroyed their society’s cohesion and their cultural identity. They have since sought to develop a more pragmatic approach to the grant of residency and belonger status. It is now as though we are repeating the mistakes that the Cayman Islands are now struggling to correct. We would strongly recommend a closer look at the Cayman Islands model to the grant of residency and belonger status before we implement this ill-fated option.
(c) The National Security Front
The assertion in your official statement that this initiative will somehow make people less likely to turn to illegal activities is wholly unfounded and unsubstantiated by any understanding of crime prevention. While the “feel-good” factor will have an immediate effect, the realities of crime reduction does not hinge on residency and belonger status, but on economics. A true crime prevention strategy must reduce the opportunities for committing crimes, seek to build the character of those more susceptible to criminal activities by building pro-social activities, improve our criminal justice system, remove any profit from crime so that it is clear that crime doesn’t pay and increased policing of hot spots.
The rise in crime among children and young persons should be alarming to any society, and the large number of persons committing these crimes are the children of expatriates who are too busy working 2 or 3 jobs for long hours to spend time with their children. While it would be a violation of human rights to separate families by not allowing a parent to bring their children with them to the Virgin Islands, we may wish to adopt the Australian policy where a parent must prove that they can care for themselves and their children before they are allowed to enter to reside and work in Australia. It is necessary that we look at this problem in a holistic manner, but this idea that selling residency and belonger status will somehow reduce crime is not a solution to this very critical problem. We must implement similar policies that operate in other Overseas Territories which work to protect their societies, such as looking at the number of dependents that are allowed to come in, as well as ensuring that the salaries of the parents can support these dependents. Additionally, we must enforce our laws that require persons on work permit to leave the territory to have their children which are strictly enforced elsewhere, including in the United States of America and other Overseas Territories.
(d) The Legal and Constitutional Front
Section 12(1) of the Virgin Islands Constitution Order 2007 is similar to section 15 of the Canadian Charter of Rights and Freedoms, except section 26 of the Virgin Islands Constitution Order 2007 deals specifically with discrimination in the same way as the European Convention on Human Rights, which is the source of the majority of rights in our Constitution. It also has parallels to Article 14 of the Constitution of India and to a lesser extent to the Equal Protection Clause under the United States Bill of Rights (the 14th Amendment to the U.S. Constitution). However, there are very few countries in the world that have adopted this approach, especially in a constitutional monarchy such as ours. However, the requirement for equality before the law may cause a challenge to the legitimation of any such grant as the question to be answered is whether the benefits proposed by law will be proportionate since the amnesty automatically sets up a difference between two (2) types of applicants, those applicants applying under the amnesty for a two-week period and those outside of the amnesty period. This legal challenge to any grant of residency or belonger status under this proposed scheme is currently under active review.
As we have become aware there will be an amendment to the Immigration and Passport Act (Cap. 130) introduced to the House of Assembly on Friday, 17 May 2019 and passed in the same sitting to facilitate this amnesty, we ask that you reconsider rushing through this process with three (3) readings of the amendment in the House of Assembly in one sitting. The proper ventilation of the issues involved by full and frank discussion with Virgin Islanders would reveal that not only Virgin Islanders would be affected by this, but also persons who have acquired their Belonger status through a legitimate process. As such, we request that the amendments to the Immigration and Passport Act (Cap. 130), as they relate to the regularization of residency and belonger status, be withdrawn from the Order Paper for 17 May 2019 and an opportunity for Virgin Islanders and Belongers to be involved in this process.
Additionally, we ask for:
(A) the amendment to the Immigration and Passport Act (Cap. 130) to allow for the regularization of residency and belonger status be removed from the Order Paper for 17 May 2019; and
(B) confirmation that a process of public consultation on the way forward will take place before any further action is taken.