Kawaley wants work permit policy fine-tuned’
Chief Justice Ian Kawaley has called for a “narrow and focused fine tuning” of Bermuda’s work permit policy in light of the legal battle between the AME Church and the Bermuda Government.
Mr Justice Kawaley said the case illustrated the “folly of the apparently longstanding tradition of ministers retaining legal power to substantively decide individual work permit applications”.
“The most significant problem the present case highlights is the potential confusion on the part of technical officers, work permit applicants, the Immigration Board, and the minister if there is no clear dividing line between cases where the board is making the substantive decision and where it is not,” the Chief Justice said in his judgment.
Mr Justice Kawaley added: “There appears to be compelling reason for deploying the valuable power conferred on the Minister by section 13(b) of the Act to delegate decision-making competence to the board over work permit applications, either generally of certain categories of types of application.
“This would add valuable administrative and legal clarity to the respective roles of minister and board without requiring any significant disruption to the existing administrative operations.”
Yesterday afternoon, the Attorney-General’s Chambers released a statement saying that the Government would consider the Chief Justice’s recommendation.
“The Chief Justice rejected the argument put forward by Reverend Genevieve-Tweed that the minister was biased in how she dealt with his work permit application,” the statement said.
“According to the ruling, the minister ‘clearly attempted to deal with the work permit application in a principled manner’.
“However, the Chief Justice did find that there were some procedural issues with the way the minister and Department of Immigration handled Reverend Genevieve-Tweed’s work permit renewal application. He has accordingly asked the minister to retake the decision afresh. His judgment also made clear that a statutory power to delegate the minister’s functions in respect of work permits to the Immigration Board has never been made. This has been the case since the Bermuda Immigration and Protection Act 1956 was first enacted.
“This lack of delegation caused there to be an ‘administrative law muddle and confusion’. The Chief Justice did recommend that this delegation be made, and the Government will be considering the recommendation.”
In his ruling, Mr Justice Kawaley maintained that the interests of good public administration required the delegation power to be exercised to give the board full competence to adjudicate politically neutral decisions on ordinary individual work permit applications.
He added: “It is unsatisfactory that the published Work Permit Policy misrepresents the true legal positions and that; firstly, the board has no legal authority to make substantive decisions on work permit applications and, secondly, even if as a matter of practice the board is the real decision-maker in most cases, in every case the minister has the legal right to assume full command and control of an application, contrary to the legitimate expectations of applicants based on the wording of paragraph 14 of the policy.”
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