Governor John Rankin used his discretionary powers under the Constitution to recall the House of Assembly on April 17 so that it could pass a law to validate the status of 688 people who were granted belongership in 2019 and early 2020 even though they did not meet all the necessary requirements.
“For most of those, the specific error was that they were granted their residency and belongership certificates simultaneously, whereas on a proper reading of the law they should have held their certificate of residency for 12 months before their application for belonger status was made,” Mr. Rankin said when announcing the recall on April 14.
The issue was flagged by the government’s internal auditor and auditor general, who reviewed the 2019 Fast Track Residency and Belongership Programme and completed an audit report that was laid in the HOA on April 17.
“Let me emphasise, this was not the fault of the individuals concerned, most of whom have lived in the BVI and contributed to the community here for from more than 20 years and have legitimately operated in the belief that their status granted is valid,” Mr. Rankin said.
“The immediate concern, however — and the reason for recalling the House of Assembly as a matter of emergency — is the upcoming general election with many of these 688 persons being registered to vote. If the error that occurred in 2019 is not remedied, the right of these persons to vote could be put into question and challenges could be made to the election results,” he said at the time.
Flanking Mr. Rankin on April 14, Premier Dr. Natalio “Sowande” Wheatley said that he agreed with that the error “was not the fault of any of the applicants.” He added that that VI residents live “in a democracy and it is important that no one who is qualified is disenfranchised because of this error.”
The fast-track programme was undertaken in May 2019 under the leadership of then Premier Andrew Fahie. It was originally intended to permit expatriates who had lived in the territory for 15 years or more to apply and qualify as permanent residents and belongers.
The initiative was subsequently scrapped and restarted following the June 2019 passage of the Immigration and Passport (Amendment) Act 2019 — aspects of which were flagged by the recent audit as “shortsighted.”
During the April 17 sitting of the HOA, three legislators — the premier; Deputy Speaker Neville Smith; and Education, Youth Affairs and Sports Minister Sharie de Castro — recused themselves from the HOA proceedings since their significant others were granted belongership under the programme.
In the absence of Dr. Wheatley, then Deputy Premier Kye Rymer tabled the bill titled the “Immigration and Passport Validation Bill 2023.”
After assuring the public that the general election will occur as scheduled, Mr. Rymer claimed that the former Virgin Islands Party-led government was guided by advice from former Attorney General Baba Aziz when it granted simultaneous residency and belongership status in 2019.
Mr. Aziz, he said, “initially legally advised that these persons qualified who were then approved.” However, Mr. Rymer said the current attorney general, Dawn Smith, recently advised that Mr. Aziz’s advice was “incorrect.”
‘Under the bus’
Ms. Smith took issue with Mr. Rymer’s account during the April 17 sitting. “The attorney general was under the bus bad, bad, bad during the Commission of Inquiry,” Mr. Smith said. “The attorney general under the bus again.” Ms. Smith said that she has always known her predecessor to be a “careful and good lawyer and very professional.”
Speaking on the legislative process, she called on the “the government machinery” to consult stakeholders and the general public about the need for “Cabinet to approve a well-thoughtout research and sound policy for drafting instructions to be prepared for draft legislation to be scrutinised by legislators to make sure that it reflects policy objectives.”
The attorney general also called for “proper public consultation on every single piece of draft legislation.”
She added that there should be “ample time” between when a bill is laid in the HOA and when it goes to committee, “so that representatives can engage with their stakeholders and come back to the House and debate intelligently and bring issues that have been raised from their interactions with their constituents.” Shereen Flax-Charles — who in 2019 served on the then-VIP government — also expressed scepticism about Mr. Rymer’s account and called on the government to provide evidence of Mr. Aziz’s decision.
Attempts to reach Mr. Aziz were not immediately successful.
‘No fault of their own’
At the April 17 sitting of HOA, Mr. Rymer also stressed the importance of ensuring that the election results are not left open to challenge. “We must ensure that the 688 members of our community who have lived, worked and contributed to our society and not be disenfranchised through no fault of their own and are provided with certainty about their immigration status,” he said.
Opposition Leader Julian Fraser said he too did not blame the 688 people mentioned in the audit. “They have nothing to do with what’s going on in this House today,” he said.
Auditors’ other findings
The auditors also found that the 2019 Fast Track Residency and Belongership Programme lacked essential good-governance principles, including “transparency, participation, accountability and equity.” Additionally, it failed to accomplish its purpose, their report stated. The programme was aimed at clearing the backlog of applications “that were, for various reasons, stalled in the process for extended periods,” the auditors explained.
However, they added, it “failed to identify and address the root cause for the backlog.” At the time of the audit, the Department of Immigration still faced a significant backlog of applications “without any clear indication of how to remedy them,” the auditors added.
The report described migration as a “highly debated and polarising issue the world over,” and noted that many countries “continue to struggle to find the appropriate mix of laws and policies to govern migration within their borders.” In small and developing states such as the VI, which have limited resources, such issues can be more pronounced, the auditors added. “As such, as a small island state and one that is attractive based on economic and other circumstances, the British Virgin Islands continue to grapple with the issue of migration,” according to the report.
The audit also criticised the legislative changes made during the implementation of the 2019 fast-track programme, deeming such moves “short-sighted.” “Laws and policies should only be changed after the issues have been thoroughly understood, input gained from stakeholders and the evidence yielded dictates the appropriate legislative and policy changes that would address the underlying issues in a long-term and permanent manner,” the report stated.
Even though the programme was intended to provide a way forward for comprehensive immigration reform, “no significant legislative or policy changes have been implemented to permanently resolve the issues with the process of awarding status,” the auditors found.
As part of the way forward, Auditor General Sonia Webster last month suggested that applicants who did not meet the statutory requirements but were nevertheless awarded status under the fast-track programme “be referred to the Attorney General’s Chambers for assessment to determine the validity of the award and what appropriate actions may be necessary to rectify such.” That recommendation ultimately led to the HOA recall and the validation exercise held on April 17.
Freeman Rogers contributed reporting.