According to the findings of the Complaints Commission, the policy announced in December 2004 that restricted applications to persons who had been ordinarily resident in the Territory for a minimum of 20 years was unlawful, in that the Act passed by the Legislature did not empower the Cabinet (Executive Council, in 2004) to make, on its own, such a far reaching change to the certificate of residence regime. The Act set just two criteria: (i) that the applicant is of good character and (ii) that he had in his application stated his intention of residing permanently in the Virgin Islands. Photo: Google

The investigation arose out of complaints by several persons that they heard nothing about their applications for years after they submitted them, and that some were asked to re-submit documents or to reapply.

We asked members of the public who had any knowledge or experience of the matter to contact us. Several did respond and provide useful information. To them we express our thanks.

We are now in a position to announce that the investigation was completed earlier this year and the report delivered on 8^th April to the Premier, Dr. the Honourable D. Orlando Smith, OBE as the responsible Minister and to the Chairman of the Board of Immigration, Mr. Michael Anthony for their consideration. As required in law, a copy was also supplied to the Governor and each member of the Cabinet, including the Attorney General.

The main findings were:

The policy announced in December 2004 that restricted applications to persons who had been ordinarily resident in the Territory for a minimum of 20 years was unlawful, in that the Act passed by the Legislature did not empower the Cabinet (Executive Council, in 2004) to make, on its own, such a far reaching change to the certificate of residence regime. The Act set just two criteria: (i) that the applicant is of good character and (ii) that he had in his application stated his intention of residing permanently in the Virgin Islands.

That policy also purported to restrict the number of such certificates granted each year to persons who applied after 31 December 2002 to a maximum of 25 each year. The legality of that quota, if strictly applied, was also found to be doubtful. Cabinet should not so fetter its discretion.

These measures, when applied by the Board of Immigration following instructions from the Minister, significantly slowed down the processing of applications, and greatly retarded the submission of applications by persons who were otherwise well qualified to apply. It also contributed greatly to the finding that the applications stayed in the Board part of the system for very much longer than at the Ministry and Cabinet Office.

The Board, at its level, in addition to requiring police certificates and letters attesting to character, applies a test to applicants and rates them by a point system that includes their scoring on the test. It does this with the aim of being more objective in arriving at its recommendations to the Cabinet. The investigation found, however, that the Board had no authority to apply these measures simply to recommend whether someone was “of good character and had in his application stated his intention of residing permanently in the Virgin Islands”, which are the only conditions laid down in the Act to qualify for the Cabinet granting a certificate if it wishes.

The report was sub-titled “Game of Chance?” referring to the fact that there appeared to be no obvious explanation of why, over the years, certain individuals appeared to be able to have their applications processed in record time after a relatively short period of residence whereas a majority took years (an average of 7.9 years for the 11 applications approved in 2007, ranging in time of approval from 1 to 21 years). More bafflingly, the investigation also found that the Cabinet had in August, 2011 approved grants to hundreds of applicants whose applications had not been reported out by the Board – in some cases, no applications had been submitted, according to the Chief Immigration Officer – while leaving hundreds others in the pipeline; and, on the record, the basis on which those were selected and others left out was not clear, giving the impression of a lottery.

Finally, we found that the Board was but poorly supported by a tiny Status Unit of one mid-level officer (now with clerical support) which was grossly inadequate to enable it to properly carry out its work efficiently, especially when the much more weighty responsibility of advising on belonger applications is taken into account.

In the report the Complaints Commissioner made recommendations to remedy the deficiencies pointed out. The Board should at once cease to apply those aspects of the 2004 policy that he had identified as unlawful. The Government should take steps to get proper legislative authority for measures of immigration policy that it determines to be in the public interest. The Board should be given adequate staff support to carry out its work on a timely basis. When applications are turned down, the applicant should be told the reason or reasons in writing.

A more far reaching recommendation was that in order to streamline the process and remove political pressure for individual approvals, once the policy is clearly set out in law and detailed regulations the power to grant the certificates should be vested in an upgraded and properly staffed Board, which would then report to Cabinet and the House of Assembly periodically through the Minister. Cabinet and the House would then provide the needed oversight.

Other recommendations were made.

The Premier’s Office has indicated that work on amending the Immigration and Passport Act is ongoing and the recommendations would be taken into account in that process. Further response is awaited. The Government does not, of course, have to accept or act on the Commissioner’s findings and recommendations.

Complaints Commission                                                                        15^th July, 2013