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Home affairs minister ‘erred in law’

The Minister of Home Affairs will have to reconsider an application for a permanent residency certificate after the Supreme Court set aside decisions by himself and the Immigration Appeal Tribunal.

The applicant at the heart of the case, Nigel Paul Clarke, relied on the notion that he began his ordinary residency in Bermuda on June 22, 1989, when he accepted a job offer while on vacation on the island.

Mr Clarke’s work permit was not approved until August 14 that year and he did not actually take up physical residence in Bermuda until September 23.

The Immigration and Protection Act allowed those who were ordinarily resident in Bermuda since before July 31, 1989 to apply for a permanent resident certificate, provided they met certain criteria and applied before the deadline of August 1, 2010.

His application was rejected by the Minister of Home Affairs in November 2010 on the grounds that Mr Clarke had not taken up residence in Bermuda until after the July 31 deadline, while the IAT dismissed his appeal in September 2014.

The IAT found that while Mr Clarke’s actions — including the selling of his family home in the UK — were potentially relevant to the date when his ordinary residence in Bermuda began, but determined that the facts and matters relied upon did not reach the required threshold. Mr Clarke subsequently appealed the decisions to the Supreme Court.

In a judgment dated May 11, Chief Justice Ian Kawaley found that the July 31, 1989 deadline was not arbitrary, noting that it was the same date the Bermuda Government abolished the discretionary grant of Bermudian status, and the deadline was intended to provide a sense of stability for applicable long-term residents.

However, he wrote that the case could be considered a “marginal scenario”, stating that the Minister was able to take a flexible approach in such borderline cases.

“There is no meaningful distinction between an applicant who is engaged to work in Bermuda and makes a preparatory visit before July 31, 1989, but only actually arrives to commence work six weeks later, and an applicant who actually arrives to commence work on July 31, 1989, assuming all other PRC eligibility requirements are met,” he wrote.

The Chief Justice later added: “I find that the Minister erred in law in failing to consider potentially sufficient evidence in support of the appellant’s PRC application on the ordinary residence issue. The IAT also erred both in its approach to the law and the facts, but more importantly, in making its own decision on the ordinary residence issue rather than remitting the matter to the Minister to decide.

“It is impossible to conclude that no substantial miscarriage of justice occurred. Based on the material presently before the court, and in light of the generous scope of the minister’s discretion when dealing with marginal cases for the legal reasons explained above, it is not easy to conceive on what basis a reasonable minister, properly directing himself, would refuse the appellant’s PRC application.”

He set aside the decisions by both the IAT and the minister and remitted the matter back to the minister to reconsider, stating: “The appellant’s PRC application was based on an elegant but counterintuitive legal analysis which advanced, from the outset, a potentially valid case on ordinary residence which was never fully understood.”

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