New approach to immigration appeals
The passing into law of the Bermuda Immigration and Protection Amendment Act 2011 (“the Amendment Act”) heralded a welcome and refreshing approach to Immigration appeals.
The Amendment Act, which became operative on August 10, 2011, has established the Bermuda Immigration Appeal Tribunal (“the Tribunal”) in place of the Appeal Tribunal of Cabinet.
In future, all Immigration appeals dealing with the grant or loss of Bermudian status, the grant or loss of Permanent Resident's Certificate status, the refusal of the grant of permission to land/remain in Bermuda, and the revocation of permission to land/remain/reside in Bermuda, will be made to the Tribunal.
The Tribunal will consist of 14 members, of whom the Chairman and Deputy Chairman will be qualified barristers and attorneys who are of at least five years' standing and who possess Bermudian status. There is provision for other barristers and attorneys of not less than three years' standing to be appointed to the Tribunal, together with others who have demonstrated that they have such experience or expertise that the Minister of National Security (“the Minister”) deems necessary from time to time. The Minister will appoint Tribunal members in consultation with the Premier.
The Amendment Act provides that the Tribunal shall conduct itself with all the powers of a Court of Summary Jurisdiction. It will be permitted to summon witnesses and have those witnesses examined on oath or otherwise, and also to compel the production of any document or thing relevant to the subject matter of the appeal proceedings.
In common with the majority of independent tribunals in Bermuda, the Tribunal may regulate its own proceedings as it thinks fit and it shall not be bound by the rules of evidence in civil or criminal proceedings.
Relaxing the rules of evidence will hopefully put unrepresented parties at ease during the process and allow the appeal to flow, thereby reducing the length of any appeal.
Representation before the Tribunal can be either by litigant in person or by a barrister and attorney. The Minister may be represented by any public officer or by a barrister and attorney.
The Amendment Act imposes a fee in respect of each appeal of $250 which sum is non-refundable. The Tribunal has the power to award attorney's fees and costs in relation to the appeal. The introduction of a costs order is a new feature of the appeal process (as is the increased fee from $120) and perhaps demonstrates the seriousness of an appeal and the consequences, should an appeal fail.
It is unclear how costs will be assessed, although the method is likely to be similar to the costs structure of the Supreme Court of Bermuda. The Tribunal is empowered to make regulations and the area of costs may be a topic for regulation. As the Tribunal evolves and is used, the procedural aspects will become clearer.
In terms of Bermudian status and Permanent Resident's Certificate matters, the Tribunal can determine those appeals by either confirming the decision of the Minister, or quashing the decision and directing the Minister to issue certificates or grant specific permission. In relation to other matters, the Tribunal may confirm or quash the decision of the Minister.
In the case of a decision to restrict the terms of the permission to reside and work, the Tribunal may direct the Minister to issue an order containing such terms as the Tribunal sees fit.
The Tribunal, which is independent of Government, will consider appeals upon the merits and law and will expect Appellants (and Respondents) to make submissions on the evidence and law as well as provide the Tribunal with the evidence with which to make a decision.
Should a party be aggrieved by a decision of the Tribunal, that party may lodge an appeal with the Supreme Court within 21 days from the date of the decision of the Tribunal.
As the legislation became operative on August 10, 2011, any appeal previously before the Appeal Tribunal of Cabinet that had not been determined at that date will now be transferred to the Immigration Appeal Tribunal.
Attorney E Kelvin Hastings-Smith, FCIArb, is Counsel and Manager of the Litigation Practice Group at Appleby (Bermuda) Limited. A copy of Mr Hastings-Smith's column can be obtained on the Appleby website at www.applebyglobal.com.
* This column should not be used as a substitute for professional legal advice. Before proceeding with any matters discussed here, persons are advised to consult with a lawyer.