Home Affairs Minister Walton Brown has tabled legislation to address challenges by non-Bermudians who claim they have been discriminated against.

In a Ministerial Statement delivered in the Lower House on Friday, he said the Bermuda Immigration and Protection Act will be given priority over the Human Rights Act, under the new amendments.

Explaining the new changes, he said: “Over the years the tenets of the Immigration Act, to protect Bermuda for Bermudians, has been challenged and continue to be so.

“Unfortunately the primacy of the Human Rights Act has caused some non-Bermudians to claim they have been discriminated against because of their country of origin.”

Home Affairs Minister Walton Brown

According to the Minister, human rights would still be protected by the constitution and the European Union convention on human rights. Essentially, he said: “This means that this bill seeks to exempt the Bermuda Immigration and Protection Act 1956 from the primacy of the Human Rights Act 1981. But he said: “This does not mean that the Immigration legislation can ignore the consideration of human rights.”

He noted that Section 12 of Bermuda’s Constitution, “which has primacy over all Government functions and legislation, provides protection from discrimination based on race, place of origin, political opinions, colour or creed”.

“Even then the Constitution makes provision for this right to be limited if it is ‘reasonably justifiable in a democratic society’.”

The Bill represents the “next wave” raft of Immigration changes previously announced by the Minister, who reminded MPs of the party’s pre-election platform promise for “complete comprehensive bipartisan immigration reform to ensure that the rights of Bermudians are advanced and protected, while recognising the need to grow our economy with fair and balanced work permits and residential policies”.

That reform, he said, “will ensure that Bermudians will come first, employer abuse is minimised, and the land in Bermuda is protected for Bermudians”.

“In essence this means that this bill seeks to exempt the Bermuda Immigration and Protection Act 1956 from the primacy of the Human Rights Act 1981,” said Mr Brown. 

The Minister noted that the new legislation is consistent with Section 11 of the Constitution, which imposes restrictions on persons who do not belong to Bermuda; including: the restriction of movement of residence within Bermuda and the exclusion or expulsion from our island; and the restriction on the acquisition or use of land or other property in Bermuda.

Former Minister of Home Affairs, Senator Michael Fahy

He also recalled the public statement made by the former Minister, Senator Michael Fahy, when he announced the Pathways to Status Bill, claiming it would “advance human rights” in Bermuda to bring those rights in line with  international human rights standards.

“This announcement today should finally bring the much-needed security and peace of mind to those in our community who have come to call Bermuda their home but yet, legally, are viewed as outside guests here,” said Minister Brown.

“It is obvious that the legacy of this statement continues to impact the mindset of certain non-Bermudians.” Additionally, he said: “Minister Fahy made this announcement against the backdrop of statistics that showed that there was an unemployment rate of 25 percent amongst young black Bermudian men between the ages of 16 and 35. Obviously human rights, much-needed security and peace of mind were not extended to our young Bermudian citizens,” said Mr Brown.

“There are very few countries other than Bermuda and Canada that allow their human rights legislation to extend to their immigration legislation; not even the United Kingdom allows this. In fact, you will be aware that many countries have doubled down on their immigration regulations,” he said.

He also noted the statement issued by the International Organisation on Migration (IOM) made on their website, which states that “the normative approach to migration” can be seen mainly from two different, but complementary angles:

  1. The principles and standards deriving from State sovereignty. These include the right to protect borders, to confer nationality, to admit and expel foreigners, to combat trafficking and smuggling and to safeguard national security.
  2. The human rights of the persons involved in migration. Many relevant conventions exists at the universal and regional levels, although most of them do not explicitly refer to migrants or recognize them as a specific group. These instruments are spread across various branches of law, such as human rights law, humanitarian law, refugee law, criminal law and labour law; the relevant human rights norms are therefore dispersed throughout a wide range of texts.”

“The Bermuda Immigration and Protection Act 1956 addresses the first. The Human Rights Act 1981, along with our other legislation accomplishes the second point,” said Mr Brown.

The Minister concluded his statement with a quote by “a lawyer colleague whose comment encapsulates” the Government’s position: “Across the board from top to bottom and from east to west; from janitors to CEOs, non-Bermudians should only be employed where qualified Bermudians cannot be found. Every country I have worked or lived in abroad, aggressively pursued these policies and laws.”