Written evidence from Russell David (OTS0006)
Adherence to human rights frameworks
Summary:
Born British Overseas Territory Citizens without belonger status are subject to significant constraints and hardship. This issue is a problem in Bermuda and other British Overseas Territories with migrant populations. The matter needs urgent consideration so that each Territory meets their international treaty obligations and they enjoy full rights and are not discriminated because of their parent’s origin. This issue also illustrates a lack of leadership by the FCO in regard to rights for all British Overseas Territory Citizens.
I wish to draw the committee’s attention to British Overseas Territories Citizenship. In each British Overseas Territory, there are many people like me who do not, and will not be granted ‘belonger Status. We were born in the Overseas Territories but have existed with a significant deficit, of what most would consider basic rights. E.g. the right of abode, the right to work free of work permit restrictions, the right to buy lower income property and the right to vote in any kind of capacity in the jurisdictions of our birth.
Most of these hardships are endured because we were children who were born to immigrants to the territories. We have our British Overseas Territories Citizenship, but that is essentially a worthless document for us in our birth place. We are only deemed to belong until we are 18. As in my case, many of us have been effectively exiled from Bermuda and other territories, or tried to get by living on a work permit, or working under the radar.
To add to the injustice that many of us face in the overseas territories, we cannot become naturalised BOT citizens because of a grant from the Governor. This is simply because we were born BOT citizens. As a naturalised citizen, we would have a pathway to Belonger Status or indefinite leave to remain in our birth place. As born BOT citizens we have none.
The Bermuda Constitution in 1968 protected naturalized "UK & colonies" citizens, but not born citizens. Perhaps at the time, it wasn't estimated just how far Bermudian status and "UK & colonies" (later, BOT) citizenship would deviate. Or perhaps it was anticipated, but decided that it was a matter for Bermuda to decide. Well, many of us are living with this awful situation with seemingly no urgency from anyone to see the gross injustice addressed. Unlike the rightful momentum to make good the dreadful Windrush debacle, we have very few telling our story. Immigration reform in Bermuda has been at a glacial pace.
To illustrate the points I have made, I will tell my own story. I left Bermuda to pursue a University education. I was treated like anyone else at that time. I registered for the Bermuda Regiment draft at 18 and held a Government of Bermuda Passport. After qualification, I went to work as a Crown Servant Overseas for the MOD in British Forces Germany. In Europe, I am not considered a UK national by the European Union (EU). My BOT passport is the only one I have. I am proud of my Bermudian connection and would never want to reinvent myself or be forced to deny my culture. (https://www.gov.uk/types-of-british-nationality/british-overseas-territories-citizen
I have the Official Observation stamped in my BOT Passport, “Holder has the Right of Abode in Bermuda” The British Government recognise that my British Overseas Territory citizenship is by reason of my birth in Bermuda and I am therefore a common law belonger, in that Bermuda is the constitutional unit to which my citizenship relates; that Bermuda is my home.
I am coming up to the twenty-year point as an Overseas Crown Servant, with an unblemished record. As British Forces drawdown from Germany, my services will no longer be needed. I recently wrote to the Department of Immigration in Bermuda to confirm that I had indefinite leave to remain. I was shocked to learn, that despite having the words, “Holder has the Right of Abode in Bermuda” I was told from the Attorney General’s chambers via correspondence with the Chief Immigration Officer, that they deemed I had no such right. I was deeply disappointed and highly perplexed. My main question is, where does the constitutional unit to which my citizenship relates? I was born in Bermuda and have always considered Bermuda my home. Many in the British Overseas Territories Citizens wonder where they belong.
In my Garrison in Germany I have a fellow British Overseas Territories Citizen of Bermuda. We were born in the same hospital, the same year, but he can return to live and work, but I cannot. This is because I am the son of an immigrant. It cannot be right that Immigrants are used to bring skills and performs task for the Overseas Territories, but their offspring are treated incredibly badly. We do not seem to count.
My situation is not unique. This is a common thread that is all too familiar with born BOT Citizens who do not possess belonger Status. This would not be allowed to happen in any part of the United Kingdom. Why does Self-governance of immigration and award of belonger Status (essentially local citizenship) not have to be aligned with modern UK values and human rights treaties? It is well documented that denial of citizenship has a negative impact on ‘social identity’ (ECHR and citizenship: The case of Genovese v. Malta) Where do the British Overseas Territory Citizens without a belonger stamp in their passport belong? What is this lack of rights doing to our identity?
The ECHR is an international treaty which the United Kingdom Government has extended to Bermuda as a British Overseas Territory. I believe that this is the policy, but not the practice.
Catherine West, the member for Hornsey and Wood Green sought clarification on British Overseas Territories and their obligation to the European Convention on Human Rights
She
asked the Secretary of State for Foreign and Commonwealth Affairs, whether the Government is responsible for the Overseas Territories legal compliance with the European Convention on Human Rights. (27 October 2016) That parliamentary question was answered as follows:
“The protection and promotion of human rights are primarily the responsibility of territory governments. However, as the State party, the UK Government is ultimately responsible under international law for the Overseas Territories' compliance with their international obligations. These include any international treaty to which the UK has extended its ratification, such as the European Convention on Human Rights.”
Many complaints or shouts for help to the FCO from British Overseas Territory Citizens about their rights get put to one side under the caveat that it is a delegated matter for the overseas territories. This delicate relationship between the FCO and the territory governments is one that is often the reason for the UK seemingly not wanting to muddy the waters. This is an abdication of responsibility and not a delegation.
The former Chief Justice of Bermuda in one of his earlier discussions on this balance described the following:
"local statutes must be interpreted as far as possible so as to conform to Convention rights, applying the presumption that Parliament (Bermuda) does not intend to legislate in a manner inconsistent with Her Majesty's international obligations in respect of Bermuda. Secondly, there may in certain circumstances be a legitimate expectation in public law that public authorities (including, potentially, the courts) will not act in a manner inconsistent with an international treaty applicable to Bermuda."
Kawaley J
The more you read recent court judgements in Bermuda involving rights for born British Overseas Territories Citizens, the more nonsensical each jurisdiction’s Immigration act looks on this issue. This whole notion of BOT Citizenship without belonger status and lack of local rights needs to be looked at by the FCO and the overseas territories. They do not seem to be consistent with international treaties applicable to Bermuda and other territories. They also make a mockery of the much-chanted mantra of British values.
The FCO over many years has shown an astonishing level of complacency on this issue and a lack of leadership. They have allowed their present relationships to be framed by past historical legacies. In this regard, their engagement lacks any moral courage. The FCO must reinvent themselves and step out from the shadow of the past and guide the overseas territories towards a more modern vision and one that has clearly raised the bar on human rights. Most recent interventions by the FCO in the OTs have come as a result a lack of stewardship and robust engagement. Early dialogue and challenge could easily have averted some of the significant issues that have required direct intervention.
How can you have a parallel class of citizenship bequeathed by the UK that is predicated on rights for naturalised BOT Citizens and no rights for those born BOT Citizens, just because we were born to immigrants? Are these the modern British values that are being promoted in the UK and the FCO Facebook adverts?
In Bermuda’s case, critics of rights for all BOT citizens and even some Judges have argued that the Constitution provides an “exhaustive definition” of those deemed to belong to Bermuda. I do not think the list in the constitution can be exhaustive because, for example, section 11(5)(c) only refers to wives and not husbands or spouses. Does that imply that husbands cannot "belong" to Bermuda if they have a Bermudian wife (although a wife can have a Bermudian husband)? Yet in judgments we are informed it is exhaustive. I would hope the constitution would be amended so that we are listed as belonging.
I would like to think that under the leadership of lord Ahmad of Wimbledon, the FCO would have the courage to get behind Immigration Minister Caroline Nokes so that she can present an ambitious approach to this issue in her forthcoming immigration consultation with the Overseas Territories. Obligations on rights for born Overseas Territories Citizens need to be spelt out and an agreed timetable of action needs to be settled. The Overseas Territories must be cordially remined that immigration reform cannot happen in a vacuous state, but must fall within the beam of human rights. If nothing is done, many Overseas Territories born children will remain second class citizens in their own land of birth. Their denial of a right to a gainful occupation often forces a quiet departure from friends and family. It goes unnoticed because there is no ‘forced rendition flight, just a sad and quiet acceptance that you cannot live and work in the land of your birth because your parents were immigrants.
” The Overseas Territories have a special place in our constitution. They are self-governing but part of the United Kingdom. (The Chair of the Committee, Tom Tugendhat MP)
Which part of the United Kingdom would allow this? I suspect none, but in the Overseas Territories it is happening. This must not be another report and another legacy of this committee or the FCO.
Possible recommendations:
Call Peter Sanderson (Via Governor of Bermuda) to give evidence to the committee in his capacity of British Overseas Territory Citizenship expert and to drill down into the issues highlighted.
Ministers of Immigration in the Territories called to give evidence to the committee.
Access to legal funding for a Privy Council appeal for those facing hardship due to lack of judicial scope when judgements are made, I.e. local judgements not mindful of external treaty obligations. (Who is responsible for checking this?)
Ensure that OT Ministers of Immigration exercise their discretion in a way that is compatible with UK Values and international treaties that the UK has signed on behalf of OTs.
Reform the UK Nationality Act so that it clearly restores the loss of common law belonging that seems to have occurred during each nationality act change from 1981 onwards. Replacing UK & Colonies Citizenship with British Dependent Territories Citizenship and finally British Overseas Territories Citizenship. (with British Dependent Territories Citizenship even carried the detail of where you belonged. E.g. British Dependent Territories Citizen (Bermuda). Each revision has eroded our rights in a way that was never intended.
August 2018