A simple truth

The Bermuda Immigration and Protection Amendment Act 2007 is the most offensive piece of legislation that the PLP have passed in their time in office.

The Act is supposed to crack down on “fronting”, the practice where a Bermudian buys land on behalf of a non-Bermudian who is not legally entitled to own it. In other words, a Bermudian and a non-Bermudian working together to knowingly circumvent the law. What's shocking about the Act is that Bermudians who are legitimately married to non-Bermudians are now being tarred with the same brush.

“Regrettably, Bermudians have been buying multiple properties with funds supplied by their non-Bermudian spouses in order to circumvent the policy,” said Immigration Minister Derrick Burgess recently. It was a jaw-dropping thing for him to say, as it made it clear that the impact of the Act on mixed-status couples was not accidental, but deliberate. His statement implied that Bermudians marry non-Bermudians for their money and that non-Bermudians marry Bermudians in order to be able to invest in Bermuda real estate. Mr. Burgess made no distinction between a genuine marriage and a marriage of convenience.

Prior to this Act, non-Bermudians were still only allowed to have a "legal right" to one property. This meant that their name could only be on the deeds of one property, and they had to get a licence for this.

The new Act adds another restriction, however. Now non-Bermudians are now not permitted to have an "equitable interest" in a second property, either. In other words, they must not give any financial assistance towards acquiring the property. They cannot be a guarantor of the mortgage or provide funds to pay off a mortgage.

Thus, the Bermudian partner can own as many additional properties as they like, and can use them as they please (e.g. rent them out, add units, subdivide the land, and so on), but only as long as the non-Bermudian partner does not aquire a legal right or equitable interest in them.

This is discriminatory because it means that Bermudians married to other Bermudians can potentially leverage two incomes when purchasing additional properties, whereas Bermudians married to non-Bermudians can, at most, leverage only one (their own).

(At least the new law will not impact the couple if they own one property and the Bermudian partner inherits a second. Since the non-Bermudian's name is not on the deeds (no legal right) and he did not help to acquire the property (no equitable interest), the couple could keep the property and even rent it out and put the rental income into their joint account. I have confirmed this with Martin Brewer, the Chief Immigration Officer.)

The arguments that Immigration Minister Derrick Burgess has put forward to defend the legislation are as follows:

"The Government is more concerned about preserving residential properties that might be purchased by Bermudians who do not already own a home in Bermuda. Home ownership by as many Bermudians as possible is a principle goal of the Government... In the absence of this legislation, there is nothing to stop a Bermudian who marries a wealthy non-Bermudian from acquiring as many properties as he or she likes to the detriment of Bermudians without access to such riches, and this is simply unacceptable to this Government."

But what if the non-Bermudian is not wealthy? What if he has as much money as the average Bermudian spouse? Then, as the non-Bermudian spouse could not have any greater impact on the housing market than the Bermudian one, why should his spouse not be able to leverage his assets?

Conversely, what if two wealthy Bermudians were to marry? The Act would not prevent that Bermudian couple from acquring as many properties as they liked, yet the impact on ordinary Bermudians would be exactly the same. Indeed, a wealthy unmarried Bermudian could do the same.

If the concern is wealthy non-Bermudian spouses, why didn't the Act set a limit on the financial contribution non-Bermudian spouses could make? And if the aim of the policy is to give every Bermudian the chance to own a piece of the rock, why not prevent every Bermudian from owning more than one property?

"Many ordinary Bermudians struggle a lifetime to acquire one property and the Government believes that it would be unjust to allow non-Bermudian spouses to acquire multiple properties and deprive Bermudians of even the meagre opportunity they have to acquire their first 'piece of the rock', ultimately driving Bermudians to become tenants in their own country."

This is a straw man. The non-Bermudian spouse would not be acquiring multiple properties, the couple would. And even without the new Act, the non-Bermudian would still be prevented from having his name on the deeds of more than one of them, so all legal rights to the properties would remain with the Bermudian.

"Although married to a Bermudian, the non-Bermudian spouse is still a non-Bermudian and cannot expect to have all the rights of a Bermudian until such time as he/she obtains Bermudian status.”

Another straw man. The issue is not whether a non-Bermudian spouse should have the same rights as a Bermudian. It's that the Bermudian spouse does not have the right to utilise the assets of her partner if he is non-Bermudian, whereas she does if he is Bermudian. That is discriminatory, and it's the Bermudian, not the non-Bermudian, who is the victim.

"The two main limitations on non-Bermudian spouses are that they may hold only one parcel of land under licence and they are not able to vote in the General Election or By-Election process. Were the Government to accept [that a non-Bermudian spouse should be able to hold more than one parcel of land], then, logically the Government would be obliged to allow these persons to participate in General Elections from the day of their marriage."

Aside from the fact that the argument is not whether non-Bermudian spouses should be able to own more than one property, these two limitations have nothing to do with each other. It would be perfectly possible for the Government to remove one but not the other.

Bermudians who are legitimately married to non-Bermudians are not fronting for their spouse. The Act's refusal to acknowledge that simple truth is why this legislation is so offensive, and so bad.

Full disclosure, for those who may be unaware: I am a non-Bermudian spouse of a Bermudian, with a Bermudian son.