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Tweed case empowers non-Bermudian husbands

Law change: the Reverend Nicholas Tweed’s successful legal battle against the Government has enshrined the right of estranged foreign husbands of Bermudians to live here without permission, says lawyer Peter Sanderson

The Reverend Nicholas Tweed’s successful legal battle against the Government has enshrined the right of estranged foreign husbands of Bermudians to live here without permission, according to a legal expert.

Lawyer Peter Sanderson said one interesting but largely overlooked aspect of the case was the declaration by Chief Justice Ian Kawaley that non-Bermudian husbands have the same rights to reside as non-Bermudian wives, despite a section of the Immigration and Protection Act 1956 which sets out different rights, based on gender.

Mr Sanderson told The Royal Gazette the ruling was another example of how the Human Rights Act 1981, which outlaws discrimination based on gender, trumped all other statutes.

“Every case that comes out, further establishes the precedent of using the Human Rights Act, because judges rely on case law,” he said. “The more case law, the stronger the precedent.”

In the civil proceedings brought against the Minister of Home Affairs by Mr Tweed and the Council of AME Churches, the plaintiffs asked for a declaration that section 27A of the Immigration Act was “inoperative to the extent that it imposes conditions upon Rev Tweed, as a husband, which are not imposed on his female counterparts”.

The legislation says that, subject to certain conditions, the husband of a wife who possesses Bermudian status — a “special status husband” — can “land and ... remain or reside in Bermuda” as if he too had Bermudian status.

One condition is that the husband is not estranged from his Bermudian wife; the same condition does not apply to wives of Bermudian husbands. The Act says if all the conditions are not met, it is unlawful for the husband to reside here without “specific” ministerial permission.

Mr Tweed, who lives apart from his Bermudian wife, and the AME Churches argued that section 27A was inconsistent with the Human Rights Act and the pastor should be entitled to remain in Bermuda without the specific permission of the minister responsible for immigration.

Mr Justice Kawaley agreed, noting that similar declarations had been made in two previous Supreme Court cases, one of which was the landmark Bermuda Bred matter, which extended spousal residential and employment rights to same-sex partners in a permanent relationship with a Bermudian.

Mr Sanderson was the lawyer who represented the successful plaintiffs in the Bermuda Bred case. He posted on Facebook: “It seems that Reverend Tweed may owe a debt of gratitude to same-sex couples in allowing him to stay in Bermuda.

“It is interesting in these times of Preserving Marriage that it was a man of the cloth who litigated the rights of estranged husbands of Bermudians to continue living here without restrictions.”

The lawyer told this newspaper that the Chief Justice’s declaration regarding special status husbands only related to residential rights, not employment rights.

According to Mr Sanderson, estranged non-Bermudian husbands still need work permits. If they get divorced from their Bermudian wives, they would still need ministerial permission to reside, regardless of whether or not they had dependent Bermudian children on the island.

In Mr Tweed’s case, he is the father of a school-age Bermudian child but he and the AME Churches did not seek a declaration regarding his rights as a parent.

The civil proceedings were launched after the pastor of St Paul AME Church had an application for a renewal of his work permit rejected last October.

As well as being granted the declaration, Mr Tweed and the Council of AME Churches successfully argued that the decision of the Minister of Home Affairs to refuse him a work permit should be quashed, as should a decision requiring him to settle his affairs and leave the island.

The Chief Justice said: “The decision requiring [Mr Tweed] to settle his affairs and leave Bermuda was arrived at in breach of the rules of natural justice because he was not given an opportunity to make representations before the final decision was made.”

He added: “The employee being afforded an opportunity to be heard in his own right about his residential status was clearly important here because he is the father of a Bermudian child and is very arguably entitled to reside in Bermuda as the spouse of a Bermudian, in light of the declaration this court has now granted.”

Edward Tavares, from the fathers’ advocacy group ChildWatch, welcomed the declaration. He said children already had established rights under international law regarding family life, but these had been “overlooked and violated” in the past, when one half of a separated couple had been made to leave the island.

“Having to relocate and be separated from one’s children is not an easy thing to do and, from the child’s perspective, shouldn’t happen. The child needs continuous contact with both parents throughout their lives.”