| Landholding licence update |
12 Aug 2009
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The Immigration Control Ordinance 2008 was enacted on 31 December 2008, but the official publication of the Ordinance has still not been made. LL&PD do not give any explanation for the delay, or even why the publication did not take place on the day of enactment. Since it has not been published, we cannot refer to it with a Chapter number (Cap. number).
Anyway, the law exists and is inforce, and it covers all sorts of ways of controlling immigrants and immigration. As far as landholding rights are concerned, the most salient section is Part 6 Landholding by Immigrants
You can read an extract of the Ordinance draft here, or a full version here, but a layman's interpretation is most definitely needed. This is what we offer in this article. Disclaimer: This is a layman's summary and must not be viewed as legal advice.
The first section is about definitions, and though they are boring, they are essential to understanding the rest of the text:
| Controlled Immigrant | This is legal speak for...
So, in brief, a non-Saint or a company not run by Saints. |
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| Land | This is more than just ownership of title deeds - it includes any interest in physical land. Some interests in land are also exempt (see later), so that these licensing regulations do not apply.to them. |
The central message of the rest of this section is:
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"...no land
in St. Helena may be acquired or held by a controlled immigrant
except under the authority of a licence." |
The exemptions mentioned above mean that this single statement does not apply to:
- Leased or rented residential accommodation, where the term does not exceed
the period of a relevant entry permit or resident permit (or other period
restriction).
- Leased or rented commercial property, where the term does not exceed the
period of a relevant work permit
- A mortgage interest obtained by a loan provider
- Leased or rented accommodation of any type, where the term cannot exceed 99 years
(The Attorney General has confirmed that the first two exemptions are not necessary, since they are covered by the final one, so this list reduces to: a mortgage interest (for loan providers) and a maximum 99 year lease or rent agreement)
The rest of the Ordinance section covers special cases (like acquisition of an interest through a will, trust funds, directors' responsibilities in companies etc), but for most of the people interested in acquiring land, the summary message is:
a. you have to be a Saint or an immigrant to buy or lease property on St.Helena - off-islander non-Saints cannot.
b. only Saints or Saint-run organisations can buy freehold, but anyone can rent or lease property up to 99 years
Note: these regulations cover the issuance of licences. In the end, the Governor in Council has the right to ignore these regulations:
- "The Governor in Council may, if he thinks fit,
grant a licence authorising a controlled immigrant to hold land or authorising
a person to hold land in trust for a controlled immigrant."
- "The Governor in Council shall not grant a licence unless he is satisfied that it is in the public interest to do so."
These notes are interesting, because the Governor in Council has to take into account whether a business plan is workable and sustainable in deciding whether to grant a licence to a business investor.
The final consideration, which is rather complicated, is the definition of Saint (i.e. one with St.Helenian status) - it is almost certainly different to what you might predict, so only qualified legal advice can help you in specific cases.
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