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Barbosa’s status ‘unfair’ – lawyer

Top representation: barrister Richard Drabble QC (Photograph courtesy Landmark Law Chambers)

Lawyers for a man fighting for Bermuda status told London’s Privy Council that his lack of status was “unfair” and an “anomaly”.

Richard Drabble, QC, told the court that Bermudian-born Michael Barbosa cannot apply for Bermudian status because he was born on the island to non-Bermudian parents.

Mr Drabble argued that while those in Mr Barbosa’s position are not listed in the Bermuda Constitution as “belonging” to Bermuda, the list was not exhaustive.

He said: “There is a common-law category of belongers, Section 11.5 is a deeming provision. It puts beyond doubt that all those in the list are belongers and have the rights contained in the section. The language of 11.5 does not have the natural effect of excluding people from the category of belongers. The language is one of deeming, which brings people in.”

But James Guthrie, for the Ministry of Home Affairs, said the law was clear and unambiguous.

Mr Guthrie agreed it was an “anomaly” that Mr Barbosa had lesser rights under the section than his wife, who was born in the Philippines.

But he said Mr Barbosa was not “stateless” as he had British Overseas Territory citizenship and the right to live in Bermuda indefinitely.

He said: “The question is what can be done about it if in the face of clear constitutional provisions? The answer is not to say the Constitution means something it doesn’t mean.”

The case hinges on whether the list of “belongers” in the Bermuda Constitution excludes non-naturalised British Overseas Territories citizens who acquired their citizenship through their connection to the island.

Courts in Bermuda heard that Mr Barbosa was born in Bermuda to non-Bermudian parents in 1976 and is a citizen of the United Kingdom and Colonies by birth.

He was granted British Overseas Territories citizenship in 2002 and given indefinite leave to remain in Bermuda in 2013.

But he launched a legal action in 2015 because he was not eligible to apply for Bermudian status or a Permanent Resident’s Certificate.

Lawyer Peter Sanderson argued at the time that Mr Barbosa belongs to Bermuda on the basis of common law.

Bermuda’s Supreme Court ruled in Mr Barbosa’s favour in 2016 and found that he “belonged” to Bermuda, but the Court of Appeal overturned the decision later that year.

Mr Drabble said that Mr Barbosa was a “belonger” by virtue of the fact he obtained British Overseas Territory citizenship by his birth in Bermuda.

He said Section 11.5 of the Bermuda Constitution establishes several categories of people who can “belong” to Bermuda, but does not exclude those who obtain it under common law.

Mr Drabble said: “It doesn’t matter what the draftsman of the Constitution actually thought at the time of drafting.

“The constitutional principles that we have to apply are that Section 11 as a whole should not be construed in a way that cuts down the rights granted in Chapter 1 of the Constitution unless the language explicitly produces that result.

“The natural meaning of ‘deemed’ is to bring things in, not to exclude them.”

He added: “Mr Barbosa is not the only one affected by the anomaly.

“Our best estimate is some 300 people are in roughly the same circumstances and at least potentially the beneficiaries of a ruling on the section.”

Mr Guthrie however said the section is intended to define who is Bermudian under the Constitution and not to “bring in” more categories as suggested.

He said: “We say the Court of Appeal were quite right to conclude that it is what it is and it cannot reasonably be read as anything else but intended to provide a list of those persons who belong to Bermuda. That is really that. It’s not capable of enormous elaboration.”

The panel reserved their judgment until a later date.

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