I write, in my capacity as a human rights lawyer, to respond to a remark made by the Leader of the Opposition, Marc Bean, in relation to the debate on immigration reform. Specifically, Mr Bean said, on the heels of an agreement reached between the Government and the protesters that:

“Your PLP parliamentarians will now work to ensure that the One Bermuda Alliance government does not attempt to bring or introduce the Pathways to Status Bill in a phased approach.”

To explain the context of that statement, one must first remember that on March 17, 2016, protesters led by Chris Furbert and the Reverend Nicholas Tweed reached an agreement with the Government, which ended a five-day “withdrawal of labour” and protest that was called in response to the “Pathways to Status” Bill.

That agreement required the Government to withdraw the “Pathways Bill” and instead approach immigration reform through a “phased” approach. The agreement further held that the major areas of immigration reform, which would have become law simultaneously with the passage of the “Pathways Bill”, would be broken down into discrete subjects that would be dealt with in order so that the reforms would be passed into law in incremental phases.

The agreement also requires that a working group consider each subject before it is tabled and make recommendations to Parliament that may lead to amendments of the framework Bill. The first “phase” of the process will deal with the adoption of non-Bermudian children, the granting of status to non-Bermudian children born in Bermuda and non-Bermudian children who arrived in Bermuda at a young age, and allowing for the grant of status where some family members hold status where others do not.

Notwithstanding the terms of the agreement that was reached, Mr Bean now appears to be saying that the Opposition will not co-operate with the Government when it embarks on this “phased” approach.

The stance taken by Mr Bean, however, does not appear to take account that on March 4, 2016, the Supreme Court of Bermuda, in the Barbosa case, held that the wording of Section 20B of the Bermuda Immigration and Protection Act was unconstitutional. In that decision, it was found that the applicant, who was born in Bermuda to expatriate parents and who left Bermuda as a child and later returned as a young adult, had been discriminated against on the basis of his “place of origin”, as there was no legal mechanism by which he could apply for Bermudian status. That ruling was extraordinary because Section 20B is a key section of the Immigration Act, which controls how Bermudian status is awarded to long-term residents.

In rendering judgment in the Barbosa case, the court held that, notwithstanding the unconstitutionality of Section 20B, immediate action to enforce the rights of the applicant would not be taken as the “Pathways Bill” had been tabled in the House of Assembly. In making that comment, the court held that the “Pathways Bill” would cure the present unconstitutionality of the Immigration Act provided that it was passed into law. The court also held that if the “Pathways Bill” was not passed, it would be open to the applicant to apply to the court to secure the “enforcement” of his constitutional rights. This means that if the court were to order such “enforcement”, there is a likelihood that it will order that the applicant, and others like him, will be granted Bermudian status notwithstanding the bars that exist in the Immigration Act. Alternatively, there is also a possibility that key sections of the Immigration Act simply may be struck down as being unconstitutional.

On reading the decision as rendered in Barbosa, the “Pathways Bill” and the agreement reached between the Government and the protesters, it seems that if only the first “phase” of the agreement is passed into law, that amendment may cure the present unconstitutionality of the Immigration Act. For that reason, I do not think it would be in Bermuda’s best interests if Mr Bean was to continue to oppose the passage of the first “phase” of the agreement.

With the greatest of respect to Mr Bean, he had a better position when he said in his Reply to the Throne Speech that:

“[The PLP] will create a policy of equal political status for individuals in a family, rather than the current circumstance where one sibling could hold Bermuda status and the other have no rights at all to permanent residence.”

Also, David Burt, in a speech made in the House of Assembly on February 26, 2016, made perfect sense when he said:

“Let us work together to fix the problems for those who know no other home but Bermuda, but who have no legalised right of permanent abode to what is essentially their home. Let us work together to ensure that we can attract persons to our shores who are willing to invest and bring jobs to Bermuda. Let us work together to ensure that those who have contributed to the betterment of Bermuda can continue to stay in Bermuda to help make our island a better place.”

It seems to me, having read the Barbosa ruling, that our Immigration Act is now broken and is in immediate danger of being modified by the courts if the Legislature fails to act.

While the protesters have made their point, it seems that their leaders have also realised that doing nothing on the issue of immigration reform is no longer an option. For that reason, I would suggest that both political parties follow Mr Burt’s suggestion and work together. Such co-operation is now needed to ensure that it is the Legislature that decides how the delicate issue of immigration is to be handled, as opposed to the courts.

• Allan Doughty is a human rights lawyer who practises with BeesMont Law Ltd