Barbosa loses belonger appeal before Privy Council

  • James Guthrie, QC (Photograph from 3 Hare Court website).

    James Guthrie, QC (Photograph from 3 Hare Court website).

  • Lauren Sadler-Best (File photograph by Akil Simmons)

    Lauren Sadler-Best (File photograph by Akil Simmons)

  • Looking for support: Peter Sanderson, lawyer (File image)

    Looking for support: Peter Sanderson, lawyer (File image)

A man whose bid for belonger status was rejected by London’s Privy Council could have grounds to take his fight to the European Court of Human Rights, his lawyer said last night.

Michael Barbosa was born in Bermuda in 1976 to non-Bermudian parents but was told yesterday that he has no right of abode in the country nor the right to be treated as a person who belongs to Bermuda.

His legal battle with the offices of the Minister of Home Affairs and the Attorney-General started in August 2015, but a subsequent ruling by the Court of Appeal was upheld by judges in London yesterday.

The outcome is likely to be a blow for up to 300 people resident in Bermuda with restricted rights.

Peter Sanderson, Mr Barbosa’s lawyer, said later: “The result is naturally disappointing.

“However, what is even more disappointing is that, since 2008, Bermuda’s political system has been unable to accommodate the limited number of people who were born in Bermuda and have spent most of their lives here but lack legal recognition.”

He added: “I believe there is an argument that the continued denial of rights for people who were born or brought up in Bermuda is a breach of their private and family lives.

“There is the potential for Mr Barbosa’s case to be referred further to the European Court of Human Rights, and this is something that will be considered.”

Mr Sanderson said: “I would invite anybody else who is affected by these issues, or wishes to offer support, to get in touch.”

In the original case, Mr Barbosa argued that he had been unfairly prevented from seeking status on the basis of place of origin.

His circumstances meant that he was declared a citizen of the United Kingdom and Colonies, which became British Overseas Territories citizenship.

Mr Barbosa moved to the Azores with his parents when he was 16, but returned to Bermuda in about 2003, obtained a work permit and has lived on the island since.

In 2007, he married his wife, Christine, who was born in the Philippines, and Mr Barbosa was granted indefinite leave to remain in Bermuda in 2013.

However, he remained ineligible to apply for Bermudian status or a permanent resident’s certificate. Proceedings started when the Barbosas wished to bring Mrs Barbosa’s niece to Bermuda from the Philippines and adopt her.

They were told that the adoption would not be permitted because they were not residents of Bermuda within the meaning of the Adoption of Children Act 2006.

Mr Sanderson explained: “The issue before the Privy Council concerned what rights he had as a BOT citizen in Bermuda.”

Richard Drabble, QC, argued — during a hearing before Lord Reed, Lord Lloyd-Jones, Lord Briggs, Lord Kitchin and Lord Sales in June — that Mr Barbosa legally belongs to Bermuda on the basis of common law.

Yesterday’s decision upheld a November 2016 ruling by the Court of Appeal that overturned the guidance given earlier that year by Puisne Judge Stephen Hellman in the Supreme Court.

A summary published on the Privy Council website explained: “Mr Barbosa does not have a relevant common law or other right which informs the proper interpretation of section 11 of the Bermudian Constitution.

“The concept of belonging to an overseas territory does not derive from the common law. Instead, it derives from the local constitution or the local legislation of the overseas territory in question.

“Mr Barbosa cannot appeal to the common law to modify the meaning of the Constitution.”

It added: “There is no anomaly or inconsistency in the fact that Mr Barbosa is a British Overseas Territories citizen by virtue of having been born in Bermuda, and yet he is not treated as a person who belongs to Bermuda for the purposes of the Constitution.”

Mr Sanderson said last night: “A positive result could have provided a straightforward way for a couple hundred people born and brought up in Bermuda, who are eligible to register as British Overseas Territories citizens, to be able to live and work in Bermuda.

“However, there are other options for children who were born or brought up in Bermuda.

“Naturalisation as a British Overseas Territories citizen is a less straightforward process, but is a meaningful option for people who grew up in Bermuda and find themselves as adults without any other way of living here.”

The lawyer said that the Supreme Court’s 2016 judgment noted that the government at the time, under the One Bermuda Alliance, was considering pathways to status and “gave Mr Barbosa liberty to restore the matter in the event that no pathway was provided for him”.

Mr Sanderson added: “Mr Barbosa now has the ability to apply back to the Supreme Court regarding the lack of a pathway to Bermudian status.

“The 2016 judgment provides a precedent for other people who were born and brought up in Bermuda, but lack a pathway to Bermudian status, to similarly apply to the court, given the lack of progress on pathways to status.”

Mr Justice Hellman ruled in favour of Mr Barbosa in a March 2016 Supreme Court judgment, making declarations that he belongs to Bermuda within the meaning of the Constitution and that he had been discriminated against.

However, the home affairs minister and the Attorney-General appealed, saying the judge was wrong to find that Mr Barbosa was a person who belonged to Bermuda under the Constitution, as it provides an “exhaustive definition” of those deemed to belong to Bermuda.

The Court of Appeal later set aside Mr Justice Hellman’s declarations.

Mr Barbosa then took his case to the Privy Council, where the respondents were represented by James Guthrie, QC, and Crown counsel Lauren Sadler-Best.

It was recently suggested by Robert Pires, a prominent business leader, that the Government might be “afraid” to introduce its plan to tackle the issue of mixed-status families until the outcome of Mr Barbosa’s case was known.

Tabling of the legislation has been delayed at least twice this year.

The Ministry of National Security, which took over responsibility for immigration from the Ministry of Home Affairs last November, confirmed it was aware of the Privy Council ruling. A spokeswoman added last night: “The work of the Bipartisan Immigration Reform Group is ongoing.”

The office of the Attorney-General was also contacted for comment yesterday, but there was no response by press time.

For the full judgment, click on the PDF link under “Related Media”

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Published Nov 12, 2019 at 8:00 am (Updated Nov 12, 2019 at 8:01 am)

Barbosa loses belonger appeal before Privy Council

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