Hargun rules for non-commercial’ hairdresser
A $5,000 fine served on a schoolgirl who got work experience as a hairdresser without a work permit has been quashed by the Supreme Court.
Chief Justice Narinder Hargun ruled that the Chief Immigration Officer was wrong to penalise Ashley Aguiar for working unpaid in Tranquil Hair and Beauty in St George’s without a work permit.
Mr Justice Hargun said that the youngster, a lifelong Bermuda resident, but who did not have Bermudian status, was not employed or paid by the salon and was there to learn the trade.
Ms Aguiar told The Royal Gazette: “I am happy with the outcome and truly believe the right thing has been done.
Mr Justice Hargun said in his ruling: “The crucial fact in this regard is that Ms Aguiar was not engaged in the ordinary business of a hairstylist but was limited to the activities undertaken in order to gain practical experience.
“An essential feature of this arrangement was that it was carried out without ‘reward, profit or gain’.”
Ms Aguiar was fined in November 2017 after the immigration department found she was in breach of the Bermuda Immigration and Protection Act.
Officials said that she had broken the law “notwithstanding that no reward, profit or gain may be obtained or obtainable in the circumstances of the particular case”.
At the time she was a Berkeley Institute pupil who wanted to become a hairdresser. The court heard that the girl was allowed to go to the salon by its owner to help her career ambition.
Ms Aguiar also helped to style the hair of her family and boyfriend on a “non-commercial basis”.
Peter Sanderson, representing Ms Aguiar, argued his client’s work at the salon was limited to styling the hair of family members and work at charitable events, which did not amount to gainful occupation.
He added that — even if there had been a breach of the law — the $5,000 penalty was “unreasonable and disproportionate”.
Mr Justice Hargun said in his written judgment last November: “The informal arrangement between the owner of the salon and Ms Aguiar does not amount to the relationship of an employer and employee.
“Likewise, this unstructured informal arrangement to obtain practical experience would not appear to amount to the practice of a ‘profession’; or ‘carry on any trade’ or ‘engage in local business’.”
He added that, if immigration law had been broken, it was up to the Chief Immigration Officer to decide if a warning was appropriate.
However, Mr Justice Hargun said that did not apply to Ms Aguiar’s case, as there was no breach of the law.
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