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Iranian-born British citizen wins PRC appeal

An Iranian-born British citizen who was denied a permanent residency certificate has won an appeal against the decision in the Supreme Court.

Mehyrar Sharifi moved to the Island in September of 1998, but was forced to leave the Island in April 2008 after his work permit was not renewed.

While he moved back to London with his family, he regularly returned to the Island and applied for permanent residency in July 2010. The application was subsequently rejected by the then-minister responsible for immigration on the grounds that he had not been ordinarily resident in Bermuda for the required ten-year period.

He appealed the decision to the Immigration Tribunal, arguing that he had been ordinarily resident on the Island since 1998.

The tribunal heard the matter in 2014 and upheld the minister's decision, but Mr Sharifi took the matter to the Supreme Court.

During a hearing, lawyer Eugene Johnston argued that the tribunal had acted on the assumption that Mr Sharifi voluntarily left the Island in 2008 as they did not hear evidence that Mr Sharifi had applied to renew his work permit.

Mr Johnston argued that this unfairly left his client with the “heavy burden” of proving to the tribunal that he did not give up his ordinary residence.

In a recent judgment, Chief Justice Ian Kawaley said that the tribunal had taken the wrong approach to the case due to the lack of information about Mr Sharifi's work permit application.

“It was legally impossible for the minister to unilaterally bring the appellant's ordinary residence to an end simply by failing to renew his work permit,” he wrote.

“The proper question for the tribunal and minister to ask was whether, bearing in mind the appellant's undoubted ordinary residence in Bermuda for over nine years, his involuntary ‘decamping' back to the United Kingdom could fairly be viewed as bringing that prior undisputed period of ordinary residence to an end.

“The evidentiary burden on the appellant ought properly to have been viewed as somewhat light rather than very heavy in all the circumstances of his case.”

He said that “ordinary residence” on the Island is a complicated concept which does not turn solely on where a person spends most of their time, and that neither the minister nor the tribunal gave proper weight to the fact that Mr Sharifi left the Island involuntarily when his work permit was not renewed “virtually on the eve of his qualifying for PRC status”.

Mr Justice Kawaley subsequently set aside the decisions of the tribunal and the minister, remitting the matter back to the minister to be dealt with according to the law.

Ian Kawaley, Chief Justice

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Published August 22, 2015 at 9:00 am (Updated August 22, 2015 at 2:54 am)

Iranian-born British citizen wins PRC appeal

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