Tuesday, 14 August 2012

Born Bermudian?

A couple of articles in the Royal Gazette have highlighted the case of a woman born to a Bermudian father, currently trying to obtain Bermudian status.

I decline to make any comments on the individual case, and note that the woman has been invited by the Immigration Dept to make an application. However, the comments to the articles raise some questions of concern.

Under section 18 of the Bermuda Immigration and Protection Act (the "Act"), a person born in Bermuda with a Bermudian parent shall possess Bermudian status. They must also possess commonwealth citizenship, but this is not normally a problem, as practically every Bermudian has commonwealth citizenship and will confer this to a child born in Bermuda.

This is very straightforward and there are no other requirements.  However, some commenters have claimed that applicants are being required to prove that their Bermudian parent was involved in their upbringing. This is completely irrelevant and should not be required in order to get status. Whether one has a Bermudian parent is a question of fact, and there is no element of discretion as to the involvement of a parent in a child's upbringing.

In order to prove that one is a mother of a child, all that is normally required is to show the birth certificate. There is a common law presumption that a child born to a married woman is also the child of her husband. Obviously when a mother is unmarried, there can be no presumption as to who the father is, so it must be proved. This might be done by looking at the birth certificate, or perhaps by a DNA test.

Furthermore, the Act provides that where it is necessary to determine that a parental relationship exists, the Minister must be satisfied that the parent held him/herself out as the parent before the child's 15th birthday of the child by bringing up the child or providing maintenance and support and taking an active role in the child's life.

It must be stressed that this applies only where it is necessary to do so - i.e. that the relationship cannot be otherwise determined. Perhaps no father's name appears on the birth certificate. Or perhaps the father is deceased or uncontactable or uncooperative.

A child born to a Bermudian parent possesses Bermudian status as of right. There should be no additional test of parental involvement imposed. To do so is unlawful as it is beyond the powers given to the Minister under the Act, and also unjust, as it imposes an additional penalty on a child who has had the misfortune to have a useless father (or to have tragically lost a father) that they also lose their Bermudian birthright.


  1. Peter - I agree 100% and tried to convey this in the comments to the RG Article. People just seem to get carried away.

    Pitts Bay

  2. Thanks, Pitts Bay, for your comment and for being the first person to comment on my blog. I saw your comments on the RG articles and pointed them out to the journalist as they make a lot of sense.

    If the Dept for Immigration is indeed placing these requirements on people, then the solution is judicial review, as I see that the new appeal process doesn't cover s.18 (presumably on the basis that s.18 is supposed to be so straightforward and clear cut that no appeals process should be required).

  3. I am one of the people who is required to show my partner's involvement in his child's life (we have lived together for seven years). I submitted a letter to the Department of Immigration making the exact same points you refer to above and have been categorically told that it is not enough. I have even offered to provide a DNA test but they have deemed this insufficient evidence. Go figure.

    The Children Amendment Act 2002 recognises that there is a presumption of paternity if the man was co-habiting with the father at the time of or within 30 days of the birth or if he has certified the child's birth This presumption is overridden by the Immigration Act and the Immigration Department appear to have a policy of defaulting to 'doubt' on paternity on all applications.

    We are no longer residing in Bda but I hope someone does take this to JR.

  4. I also see that the Childrens Act provides for individuals to get a court declaration as to paternity when there is no presumption of paternity (s.18F), which is accepted for ALL purposes. This also includes provision for taking blood tests.

    The Childrens Act lists various circumstances when paternity may be presumed, including when the person has certified the birth certificate; or was co-habiting at birth or 300 days before birth (s.18I)

    It seems pretty clear that the part about proving parental involvement is only for those cases where paternity cannot be otherwise proved.