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Rights boost for same-sex partners

Same-sex partners of Bermudians will get the same right to reside and seek work as spouses of Bermudians in less than three months.

Chief Justice Ian Kawaley yesterday declined the Bermuda Government's application for the declaration to be delayed for at least four to six months to allow wide-ranging legislative changes.

Dr Justice Kawaley said the ruling would come into effect on February 29, 2016.

The decision comes less than two weeks after Dr Justice Kawaley ruled in favour of the Bermuda Bred Company — a group of binational same-sex couples — in a civil case against the Minister of Home Affairs and the Attorney-General.

Dr Justice Kawaley found that the Bermuda Immigration and Protection Act had to be read in conjunction with the Human Rights Act, which forbids the denial of services based on marital status or sexual orientation.

As a result, Dr Justice Kawaley ruled that the applicant was entitled to a declaration that the offending sections of the immigration legislation were inoperative to the extent that they authorise the minister or deny the permanent same-sex partners of persons who possess Bermuda status residential and employment rights comparable to those conferred on spouses by the legislation.

The Government subsequently sought to have the courts suspend the declaration from coming into effect for 12 months, arguing that a broad range of legislation would have to be amended in order for Government to comply.

During a court hearing yesterday morning, lawyer Phil Perinchief said a suspension of at least four months was needed, stating that both the approaching Christmas season and budget period would impact progress.

He said the broader approach was required to prevent a “piecemeal” approach determined by further court cases, which would be more costly and time consuming.

During arguments, however, Dr Justice Kawaley questioned why government had not moved forward with amendments following a February judgment regarding adoption legislation, saying: “The reality is that the other areas could have been addressed as soon as the decision of Justice [Stephen] Hellman was handed out.”

While Mr Perinchief directed the court to several rulings in the Canadian courts that demonstrated the ability of the courts to suspend a declaration, Peter Sanderson, representing the Bermuda Bred Company, argued that in all of the cases presented, the declaration left a void in the law, whereas the present case merely required that the existing legislation be read in a certain manner.

The lawyer suggested that the declaration would not dramatically increase the workload of the Immigration Department as the number of people affected would be small and many of those already have work permits.

Mr Sanderson further said that while his clients would welcome legislative changes to other acts in accordance to the Human Rights Act, the application before the courts was limited in scope to the Immigration Act and should not be held up by the possibility of other applications.

“Why should that stop people in the mean time from enjoying what the court has said they should now be able to enjoy?” he asked.

Giving his decision, Dr Justice Kawaley found that only administrative changes were required to give the Bermuda Bred Company the relief it was entitled to, but he noted the “human impact” that implementing administrative changes would have on the staff of the Immigration Department.

As a result, he found that it was appropriate to suspend the declaration for a “short time” to ensure that the minister at a minimum can put the administrative changes in place, even if there is not enough time to make the desired legislative amendments.

Arguing case: Peter Sanderson, the lawyer for the Bermuda Bred Company

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Published December 08, 2015 at 8:00 am (Updated December 08, 2015 at 8:21 am)

Rights boost for same-sex partners

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