New ground for Bermuda
The Immigration Appeal Tribunal has just published its procedural rules to hear appeals, which means that Bermuda finally has a fully functioning Tribunal for people to appeal decisions relating to work permits, residency and Bermuda status. This replaces the old system of having to appeal to the Cabinet for such matters.
This has been a long time coming. As long ago as February 2008, Mr Justice Kawaley (now the Chief Justice) made a judgment in which he questioned whether an appeal to Cabinet against the decision of one of its members satisfied the requirements of a fair hearing. Parliament listened to him and, in August 2011, the law was changed to set up an independent tribunal. On March 4 this year the Tribunal published its procedural rules to hear appeals.
This has implications for employers with staff on work permits, and for individuals who have had a work permit or residency refused or revoked or have been denied Bermudian status. Appeals should be lodged within seven days of the decision, and filed with a $250 fee. For somebody outside of Bermuda, this means posting the appeal within seven days of receiving the decision.
The effect of lodging an appeal is to “stay” the decision of the Minister until the matter is determined by the Tribunal. This is particularly important for somebody who has had their permission or status revoked, as it means that they will be able to continue living or working in Bermuda as if the decision had not been made. It is arguable that, if you have missed the seven day deadline and have a good reason for missing it, the Tribunal will still be able to hear the appeal. However, this is a new area of law for Bermuda, and applicants should do everything they can to get their appeal in on time.
Appeals can be dealt with either on paper or at a hearing. According to the published rules, the hearings are heard in private unless both sides agree otherwise. The Tribunal has three members and the Chairman must be a practising attorney. The Tribunal has broad powers to make a decision that it believes to be “just” in the circumstances of the case. It also has the power to award the costs of legal representation. If somebody is unhappy with the decision of the Tribunal, they have the right to appeal to the Supreme Court. This is new ground for Bermuda. Immigration law is an area where decisions can have a far-reaching impact both on the business plans of employers, as well as on the lives of applicants and their families. The Tribunal is a positive development to help ensure that, when these decisions are made, people can have more confidence that they will be given a fair hearing.
* Peter Sanderson is an associate in the litigation department of Wakefield Quin Limited. Before moving to Bermuda, he spent five years practising immigration law and appearing before appeal tribunals in the UK.
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