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Portuguese national loses naturalisation fight

A Portuguese national who has lived in Bermuda for more than 20 years has lost a legal fight for naturalisation.

Marco Tavares asked the Supreme Court to overturn a decision by the Immigration Appeal Tribunal to deny him residency rights in Bermuda.

But Chief Justice Narinder Hargun upheld the tribunal's decision.

Mr Justice Hargun said: “I do not minimise the real hardship referred to by Paula Tavares [his wife] in her witness statement and in her affidavit and it is understandable that Mr and Mrs Tavares consider their current immigration position to be unjust and unfair.

“However, the courts are required to apply the law as it presently exists and it is not for the courts to strain the meaning of the existing legislation or its application to assist individual litigants who may be hard done by.

“Rather it is for Parliament to legislate to produce a comprehensive immigration scheme that is consistent and fair to all concerned.”

The court heard Mr Tavares has lived and worked in Bermuda since 1998.

He married his wife in 2001. She is a British Overseas Territories Citizen who was born in Bermuda, but does not qualify for Bermudian status or a permanent resident's certificate.

The couple have two children who were born in Bermuda and have BOTC status, but not Bermudian status.

Mr Justice Hargun said in his April 27 judgment: “Mr Tavares and his family have faced uncertainty as a result of their immigration status on several occasions, primarily as a result of the expiry of work permits entitling Mr Tavares to engage in gainful employment in Bermuda.

“They have also faced other difficulties, including the refusal by the Department of Education to admit their son to a public middle school as the department was not prepared to accept that he was a lawful resident of Bermuda owing to the fact that Mr Tavares was between work permits at the time.

“Mrs Tavares herself has faced difficulties seeking permission to work in Bermuda.”

Mr Tavares applied to be naturalised in 2015, but the application was refused by the Deputy Governor's Office because Mr Tavares was unable to satisfy the condition that he had no restrictions on the period for which he was allowed to remain in Bermuda.

He later applied to the Ministry of National Security for permission to remain in Bermuda indefinitely, but was rejected.

The ministry said in a 2017 letter that the refusal would not affect Mr Tavares's family life “at this time”.

The letter added: “The only reason given by Mr Tavares purporting to justify indefinite leave is that such a grant will allow him to circumvent an obstacle to naturalisation and thus allow him to naturalise.

“The minister considers that this is insufficient to justify the grant of indefinite leave to remain.”

Mr Tavares appealed the decision to the Immigration Appeal Tribunal, which upheld the ministry's decision.

The rejection sparked the appeal to the Supreme Court.

Peter Sanderson, who represented Mr Tavares at a February 24 hearing, argued the immigration system had breached his rights under the European Convention on Human Rights and the tribunal should have found in his favour.

Article 8 of the ECtHR ensures the right to family and private life without the interference of a public authority except for “national security, public safety or the economic wellbeing of the country, the prevention of disorder or crime, the protection of health or morals or the protection of the rights and freedoms of others”.

Mr Justice Hargun said: “Counsel argued that Bermuda has allowed the situation to develop where multiple generations of the same family have been allowed to be born and grow up in Bermuda, without providing any pathway to Bermudian status, belonger status or PRC.

“They require permits to work, and will not be granted a permit if there is a qualified Bermudian who applies.

“It is practically impossible for them to buy a home due to licence requirements. This is a situation, counsel submits, without parallel in any other western democratic jurisdiction.”

Mr Sanderson argued that Mr Tavares and his family had faced real hardship because of the situation, which could be remedied if he was naturalised.

But Mr Justice Hargun said the tribunal was entitled to find that the minister had properly considered Mr Tavares's family situation and that the hardships did not amount to breaches of the ECtHR.

He said: “The IAT was entitled to take into account that Mr Tavares remains with his family, is lawfully resident in Bermuda, as has been the case since 1998.

“As the IAT noted, in the case of Mr Tavares there is no loss of housing, he has not suffered the inability to travel or to work and is not stateless.”

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Published May 13, 2020 at 9:00 am (Updated May 13, 2020 at 8:59 am)

Portuguese national loses naturalisation fight

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