Barbosa v Minister for Home Affairs and Attorney General

• Jurisdiction: Bermuda
• Judgment Date: 08 June 2016
• Docket Number: Civil Jurisdiction 2015 No 336
• Date: 08 June 2016
• Court: Supreme Court (Bermuda)

[2016] Bda LR 68

In The Supreme Court of Bermuda

Civil Jurisdiction 2015 No 336

Between:

Michael Barbosa and Christine Barbosa

Applicants

and

Minister for Home Affairs

Attorney General

Respondents

Mr P Sanderson for the Applicants

Mr P Perinchiefe for the Respondents

The following cases were referred to in the judgment:

Minister of Home Affairs v Williams [2016] Bda LR 40

Application to enforce fundamental rights under s 12 of the Bermuda Constitution — Whether persons who belong to Bermuda are residents of Bermuda under the Adoption Act — Whether damages for infringement of constitutional rights — Quantum of damages

JUDGMENT of Hellman J

Introduction

1. The Applicants, Mr and Mrs Barbosa, are husband and wife. They have applied to this Court for redress under section 15(1) of the Bermuda Constitution (“the Constitution”) on the grounds that their fundamental rights under Chapter I of the Constitution have been contravened.

2. On 4^th March 2016 I issued a judgment ruling on certain aspects of their application. The factual background to the present hearing is set out in the judgment and I need not repeat it. However, I deferred judgment on two issues until the Court of Appeal delivered judgment in a case which bore upon them, which it has now done. The case was Minister of Home Affairs v Williams[2016] Bda LR 40.

3. The first outstanding issue is this. Mrs Barbosa has a niece in the Philippines whose mother has died. Mr and Mrs Barbosa would like to bring her to Bermuda in order to adopt her. However, they have been advised that they cannot adopt her here as they are not residents of Bermuda within the meaning of the Adoption of Children Act 2006 (“the 2006 Act”). They seek a declaration that as persons who belong to Bermuda they should be classed as residents of Bermuda for purposes of the 2006 Act.

4. Mrs Barbosa, who was born in the Philippines, is deemed to belong to Bermuda under section 11(5)(b) of the Constitution as on 29^th October 2014, pursuant to section 18 of the British Nationality Act 1981 (“the 1981 Act”), she was granted a certificate of naturalisation as a British Overseas Territories citizen by the Governor. Mr Barbosa, as I found in my judgment of 4^th March 2016, belongs to Bermuda at common law.

5. The second outstanding issue is Mr and Mrs Barbosa's claim for damages for infringement of their constitutional rights. This claim relates chiefly to the Government of Bermuda's historic failure to recognise that Mr Barbosa belongs to Bermuda. In assessing damages, a relevant consideration will be whether, as the Court of first instance found in Williams, persons who belong to Bermuda have an implied right to seek employment in Bermuda without any restrictions and without being discriminated against.

The decision in Williams

6. Mr Williams was a naturalised British Overseas Territories citizen. As such, he was deemed to belong to Bermuda under section 11(5)(b) of the Constitution. In March 2015 his employers terminated his employment on the ground that the Department...