Belonger Status versus Citizenship : Constitutional Changes Explained
The general public got a clearer understanding of the pending amendments to the Virgin Islands Constitution with respect to belonger status during a public lecture conducted by local attorney Mr. Gerard St. C. Farara Q.C. on Wednesday October 25th.
The lecture was organized by the British Virgin Islands Bar Association and focused on the recent constitutional changes, with focus on citizenship and other current constitutional issues. The recommendations came out of a 1993 Constitutional Commissioners Review of the Virgin Islands Constitution 1976.
Among the changes yet to be made is the replacing of Section 2, dealing with the various categories of persons who "belong" or are deemed to belong to the Virgin Islands, with seven new or revamped categories. Mr. Farara made it clear that none of these categories make anyone a "citizen" of the Virgin Islands, as citizenship cannot be conferred by a non-state. The BVI is a British Overseas Territory and not an independent country. Its people derive what citizenship they may have from Britain, hence the term British Dependent Territories citizen used in the British Nationality Act 1981. "Most importantly, belonger status does not carry with it the right or entitlement to a passport," he explained. He said it is a local immigration status which confers certain important rights, for example, the right to vote, to hold elected office in the Legislative Council, to own real property without the necessity for a license, to reside in BVI without immigration restrictions, to work without the requirement of a permit etc.
The United Kingdom recently announced it intends to make available to its remaining Overseas Territories full British citizenship. The Bill to give effect to this is expected to be presented to the UK Parliament for legislative approval shortly. "It is then that we in the BVI, who are eligible for that status, will finally have full citizenship," Mr. Farara stated. The recent constitutional changes relating to belonger status removes any reference to the now outdated term "British Subject". Instead, belonger status, in circumstances of birth both within and outside the Virgin Islands, hinges on the status of ones parent(s), be they a British Dependent Territories Citizen (BDTC) or belonger. The attorney said the amendment places emphasis on the acquisition of belonger status by birth or descent, permits the automatic acquisition of belonger status by descent only to the second generation in the case of children born outside BVI of a parent who is a BDTC by birth in the Virgin Islands and places, where appropriate, emphasis on a person being "settled" in BVI as enabling the offspring born in BVI to be deemed belongers.
"It retains unaltered the linkage between naturalization and the acquisition of belonger status, so that naturalization of a person in the Virgin Islands as a BDTC confers belonger status also," according to him. "This retention...is not in keeping with the Committee's recommendation which called for the repealing of this category. Thus naturalization as a BDTC is still a route to belonger status." However, somewhat in keeping with the recommendation, the amendments add a new category of belonger - persons who become BDTC's by "registration". This refers to a process under the British Nationality Act whereby persons born outside BVI of a BDTC parent, can, by registration of their birth within a limited period, become a BDTC and hence a belonger. The changes eliminates the previous disparity between the sexes in terms of the conferment of belonger status by marriage, by making it no longer automatic in either case, but giving some preference to the grant of such status upon application within a specified period of time. This preference is to be achieved with the amendments to the Immigration and Passport Act have been passed by the Legislative Council. "This was a most vexing matter...where abuse was significant..." On the other hand, the discriminatory provision whereby a woman who acquires belonger status by marriage can lose it if she gets divorced or is living apart from her husband under a decree of judicial separation, regardless of who was at fault in the marriage, has been removed. It also preserves the acquisition of belonger status by grant both generally and specifically in relation to spouses.
In relation to how these amendments would affect children, it is to be noted that the automatic conferment of belonger status on the children of persons deemed to belong and the multiplier effect it creates will be removed. "Now a child born to a parent who is a BDTC...or to a parent who is settled in BVI is deemed to belong...Likewise, a child born in BVI of a parent who is a belonger by birth or decent...also a child born outside the BVI whose father or mother is a BDTC by birth in BVI, is a belonger." Nothing other changes, the BVI attorney said it would remove the previous restriction whereby a person may cease to be a belonger upon attaining the age of 18 years. However, a person who acquires belonger status by naturalization or registration as a BDTC, is over 21 years of age and is ordinarily resident outside the BVI for at least five years, loses belonger status.
The amendments would specifically confer belonger status on a child born in the BVI to a father or mother who is a belonger of the BVI by birth or decent or who would have been such if alive. "This is so whether the parent is a BDTC or not," Mr. Farara explained. "So the child of a person who was granted belonger status under the Immigration and Passport Act 1977...if born in the BVI, will be a belonger." Continuing his summary, the Queen's Counsel noted that belonger status will now be conferred on a child born outside the BVI only where a parent in a BDTC by birth in the BVI. Thus persons born in the BVI and a BDTC, their children (second generation) will, if born outside BVI, be a belonger, but not their grandchildren unless born in BVI.
"It specifically includes, as persons deemed to belong, children adopted in BVI by a parent who is a belonger by birth or decent. Thus children adopted outside BVI by parents, one of whom is a belonger or BDTC, are not deemed to belong," he further explained. Finally, there is an express preservation of existing rights under the original Section 2 (2) of the Constitution. "Persons who were deemed to belong under the previous section 2 (2) will not loose that status by virtue of the new provisions," Queen’s Counsel Farara concluded on this subject.