Judge deals blow to Barbosa status case
The Court of Appeal has rejected a ruling by the Supreme Court which could have opened the window for British Overseas Territories citizens to seek Bermuda status.
While the original ruling by Puisne Judge Stephen Hellman found that Bermuda’s immigration laws were discriminatory, the Minister of Home Affairs and the Attorney-General appealed the ruling.
In a ruling, the Court of Appeal found that the Bermuda Constitution Order 1968 specifies who is classified as “belonging” to Bermuda.
The judgment, written by Appeal Judge Desiree Bernard, stated: “I posit the view, in absence of any tendered reasons, that the legislative purpose of section 11(5) was to provide a list of persons who qualify as belonging to Bermuda.
“It sought to make clear and remove doubt about those whom the Constitution regarded as belonging to Bermuda. I do not agree with Mr Justice Hellman that the list is not exhaustive.
“Unfortunately, persons such as the respondent who was born in Bermuda of parents who did not have Bermudian status were not part of that list.
“The anomalies [that] creates are unsatisfactory.”
In the original case, Michael Barbosa argued that he had been unfairly prevented from seeking status due to his place of origin. While Mr Barbosa was born in Bermuda in 1976, his parents were not Bermudians. As a result, he was declared a citizen of the United Kingdom and Colonies.
He later acquired British Overseas Territories Citizenship in 2002, and was granted indefinite leave to remain in Bermuda in 2013, but remained ineligible to apply for Bermudian status or a permanent residency certificate.
Through lawyer Peter Sanderson, he argued that he legally belongs to Bermuda on the basis of common law.
In a hearing in March, Mr Justice Hellman ruled in favour of Mr Barbosa, making declarations that Mr Barbosa belongs to Bermuda within the meaning of the Constitution and that he had been discriminated against.
The justice further granted Mr Barbosa liberty to apply for a remedy should the Bermuda Government fail to provide a legislated remedy before the end of the legislative session.
However, the Minister of Home Affairs and the Attorney-General appealed the ruling, saying the judge was wrong to find that Mr Barbosa was a person who belonged to Bermuda under the constitution as the Constitution provides an “exhaustive definition” of those deemed to belong to Bermuda.
Lawyer James Guthrie, representing the appellants, submitted that the judge had construed the section too broadly and it was not permissible for the judge to add to the categories in the Constitution.
However, Mr Sanderson supported the Mr Justice Hellman’s conclusions, stating that Mr Barbosa enjoys BOT citizenship because he was born in Bermuda before 1983, and as such he belongs to Bermuda under the common law.
The Court of Appeal judgment aside Mr Justice Hellman’s declarations.
In the ruling, Court of Appeal president Sir Scott Baker added: “The key question is the true construction of section 11(5) of the Bermuda Constitution Order 1968.
“The point at which I part company with the judge is his conclusion that the section can be read as incorporating an additional category of persons who are deemed to belong to Bermuda, namely ‘belongers’ at common law.
“In my judgment, the section is clear and unambiguous.”
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