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Privy Council to hear new ‘belonger’ case

Bermuda’s final court of appeal will hear a case next week which could open the door for British Overseas Territories citizens to apply for Bermudian status.

The applicant, Michael Barbosa, will argue that parts of the Bermuda Immigration and Protection Act 1956 discriminate on the basis of place of origin.

Peter Sanderson, Mr Barbosa’s lawyer, said the case could affect hundreds of people born in Bermuda, but who have no route to Bermudian status.

He added: “If it is successful in the Privy Council, then it would immediately impact a very limited number of people who were born in Bermuda prior to 1983 and so have a Bermuda passport, but who for whatever reason have fallen through the cracks and have been unable to obtain PRC or status.

“It could also impact on around 300 to 400 children who were born in Bermuda after 1983 and lived here for the first ten years of their life.

“These children are able to register as British Overseas Territories Citizens, but in many cases have no pathway to status.”

Bermuda’s Supreme Court ruled in Mr Barbosa’s favour in 2016 and found that he “belonged” to Bermuda, but the Court of Appeal overturned the decision later that year. But Mr Barbosa appealed to the Privy Council, which is scheduled to hear the case next Thursday.

The case will hinge on whether the list of “belongers” in the Bermuda Constitution excludes non-naturalised British Overseas Territories citizens who acquired their citizenship through their connection to the island.

Five law lords, Lord Reed, Lord Kerr, Lord Lloyd-Jones, Lord Kitchin and Lord Sales, will sit on the bench for the case.

Mr Sanderson said the case would address the issue of “third-class citizens” with no rights in Bermuda.

He said: “If somebody is naturalised as a British Overseas Territories citizen, for example, because they are a PRC holder or spouse of a Bermudian, then they will be considered as somebody who ‘belongs’ to Bermuda and have constitutional protection to live and work without restriction.

“Bizarrely, the same is not the case for somebody who was born as a British Overseas Territories citizen.”

He added that the legal team was working on a “very limited budget” and invited anyone who wanted to help to donate.

Courts in Bermuda heard that Mr Barbosa was born in Bermuda to non-Bermudian parents in 1976 and is a citizen of the United Kingdom and Colonies by birth.

He was granted British Overseas Territories citizenship in 2002 and given indefinite leave to remain in Bermuda in 2013.

But he launched a legal action in 2015 because he was not eligible to apply for Bermudian status or a Permanent Resident’s Certificate. Mr Sanderson argued at the time that Mr Barbosa belongs to Bermuda on the basis of common law.

Puisne Justice Stephen Hellman found in favour of Mr Barbosa, ruled that he belonged to Bermuda and that he had been discriminated against.

Mr Justice Hellman also granted Mr Barbosa the option to apply to the courts for a remedy if the Bermuda Government did not provide a legal remedy before the end of the parliamentary session.

The judgment was believed to clear the way for other British Overseas Territory citizens to apply for Bermudian status.

Patricia Gordon-Pamplin, then the One Bermuda Alliance government’s Minister of Home Affairs and Mark Pettingill, the Attorney-General at the time, launched a successful appeal later that year.

They argued that Mr Justice Hellman had interpreted the Bermuda Constitution too broadly and that he could not add to the categories of people who “belong” to the island.

The Court of Appeal judgment, written by Appeal Judge Desiree Bernard, said section 11(5) of the Constitution was legislatively a list of those who qualify as “belongers”.

She wrote: “It sought to make clear and remove doubt about those whom the Constitution regarded as belonging to Bermuda. I do not agree with Mr Justice Hellman that the list is not exhaustive.

“Unfortunately, persons such as the respondent who was born in Bermuda of parents who did not have Bermudian status were not part of that list.”