Minister for Home Affairs v Carne and Correia

• Jurisdiction: Bermuda
• Judgment Date: 02 May 2014
• Date: 02 May 2014
• Docket Number: Civil Jurisdiction 2014 No 9
• Court: Supreme Court (Bermuda)

[2014] Bda LR 47

In The Supreme Court of Bermuda

Civil Jurisdiction 2014 No 9

In the matter of Decisions made on or about the 5^th July 2013 to refuse Bermudian Status (as consolidated by Order of the IAT on 14^th August 2013)

and in the matter of an Appeal Ruling of the Immigration Appeal Tribunal dated 25^th October 2013 (but circulated 20^th December 2013)

Between:

Minister for Home Affairs

Appellant

and

Rebecca Carne

Antonio Correia

Respondents

Mr P Perinchief for the Appellant

Mr P Sanderson for the Respondents

The following cases were referred to in the judgment:

Buckley v Law Society (No 2)WLR [1984] 1 WLR 1101

Flora (Tarlochan Singh) v Wakom (Heathrow) LtdUNK [2006] EWCA Civ 1103

Ravichandran v Secretary of State for the Home Department; R v Secretary of State for the Home Department, exparte Jeyeanthan[1999] EWCA Civ 3010

Boyce v R [2004] LRC 749 (PC)

Piercy v MacLeanELR (1870) LR 5 CP 252

Simmons v Attorney GeneralBDLR [2005] Bda LR 2

Bermudian status — Appeal — Naturalisation — Statutory interpretation — Explanatory memorandum

JUDGMENT of Kawaley CJ

Introductory

1. On August 10, 2011, the Bermuda Immigration and Protection Act 1956 (“the Act”) was amended1 to establish a new Immigration Appeal Tribunal (section 13A). The purpose of the Immigration Appeal Tribunal (“IAT”) was to provide an independent appellate tribunal for appeals (under section 124 of the Act) from decisions made by the Minister. Formerly, appeals were made to the Cabinet Appeal Tribunal, which was merely another emanation of the Executive2.

2. Section 13G of the Act confers a right of appeal from the IAT to this Court upon “a person is aggrieved by a decision of the Immigration Appeal Tribunal”. The present appeal is the first appeal to be lodged under section 13G. The matter comes before this Court in the following way.

3. The Respondents were each holders of a Permanent Residence Certificate (“PRC”), issued in 2009 and 2007, respectively, by the Minister. The 1^st Respondent (a British national) was naturalised as a British Overseas Territories Citizen by the Governor on August 17, 2012. The 2^nd Respondent (a Portuguese national) was slightly earlier issued a similar certificate by the Governor on July 25, 2012. The naturalisation certificates were granted under the British Nationality Act 1981, and each application

was supported by the Department of Immigration. However, neither application was made on a basis which explicitly foreshadowed the Bermudian Status applications which were to follow.

4. On July 26, 2012, the Respondents' counsel emailed the Immigration Department to query the procedure for applications for Bermudian Status under section 20B of the Act. The following day he was advised that no standard forms existed because although section 20B was still in force, “it has not been used in quite some time now.” Guidance was given as to what information to submit. The Respondents each applied formally for Bermudian Status under section 20B by letters dated August 6, 2012 (2^nd Respondent) and October 1, 2012 (1^st Respondent), respectively. The Department promptly raised the question of the need for approval for the grant of status to precede the naturalisation grant. The Respondents' counsel sought to rebut these arguments.

5. By letter dated July 5, 2013, the Minister refused each application on the sole ground that section 20B(2)(b) required the Respondents to have “been approved for the grant of Bermudian status” at the time of the granting of their certificates of naturalisation. The Respondents appealed these decisions by Notice & Grounds of Appeal dated July 15, 2013, on the ground that:

“the Respondent [ie the Minister] is wrong in his interpretation of section 20B and that the Appellant is in fact eligible for Bermudian status.”

6. The appeal was seemingly argued before the IAT on the somewhat narrow binary basis that either the Minister's interpretation was correct, and the Respondents were not entitled to obtain Bermudian status, or, alternatively, his interpretation was wrong, and the Respondents were entitled to the grant of Bermudian status. The IAT (Ms Kiernan Bell, Deputy Chairman, Ms Belinda Wright and Mr Clement Talbot) found as of October 25, 20133 that the Minister's interpretation of section 20B(2)(b) was wrong, and that the Respondents were entitled to the grant of Bermudian status. The Minister by Notice of Appeal dated January 10, 2014 appealed against this decision on the following grounds:

“(i) The learned Deputy chairperson and Panel members erred in law and misdirected themselves in their interpretation and/or application of the phrase, ‘having been approved for the grant of Bermudian status’, which appears in Section 20B(2)(b) of Part III of the Bermuda Immigration and Protection Act 1956 (BIPA and Amendments), in that the Minister of Home affairs or his duly authorized representatives, do have a role to play prior and subsequent to the granting or refusal of a Certificate of Bermuda status4 (see paras 20, 26 to 29 of Ruling).

(ii) The learned Tribunal erred in law and in fact, and misdirected itself in that it misapplied the operation and principles of the International Covenant on Civil and Political Rights (the ICCPR) generally to the issues at hand, and in particular the application of Article 25 of the Covenant and its relation or relevance to clause or section 11(5)(b) [belonger status] of the Bermuda Constitution Order 1968 and in light of section 8 of the BIPA dealing with the issue of supremacy of laws where there is a conflict. (see paras 20, 26 to 29 of Ruling).

(iii) The learned Tribunal erred in law and in fact, and exceeded and arbitrarily applied its powers and its discretion, and acted contrary to the intention of Parliament when it misinterpreted the nature, scope or ambit of the word ‘JUST’ in section 124 of the BIPA; thus unfairly, and not even-handedly,

applying this word and principle on the scales of justice eg it is ‘just’ as well that the responsible Minister strictly apply the appropriate provisions of immigration law as they currently stand or stood.”

7. In addition to seeking to quash the IAT decision, the Minister invited the Court to determine the following questions:

i. the meaning of the phrase “having been approved for the grant of Bermudian status” in section 20B(2)(b) of the Act;

ii. whether the grant of a certificate of naturalisation ousts the jurisdiction of the Minister to decide whether or not to grant Bermudian status;

iii. whether the issuance by the Governor of a certificate of naturalisation constitutes pre-approval for the grant of Bermudian status;

iv. what is the true meaning and effect of section 11(5)(b) of the Bermuda Constitution.

8. The present appeal is concerned with the circumstances in which PRC holders can obtain Bermudian status, deploying an interaction between provisions of the British Nationality Act 1981 and the Bermuda Immigration and Protection Act 1956, and asserting rights which have not seemingly been asserted in the post-PRC era. By the end of the hearing of the appeal before this Court, it seemed clear to me that the Minister's construction of the statutory provisions, in terms of the procedure they contemplated being followed for the purposes of a section 20B(2) status application, was essentially correct. However, it also seemed clear that in all the circumstances of the present case, where the only objection to the grant of Bermudian status which was raised by the Minister was more procedural than substantive, that the result achieved the IAT decision was obviously sound and could not properly be disturbed.

9. Nevertheless, the request for guidance made by the Minister's counsel combined with the importance and complexity of the issues raised by this first appeal from a decision of the IAT also made it obvious that a fully reasoned judgment should be delivered in the hope that greater clarity could be brought to an obscure area of Bermuda law.

Findings: factual background

The naturalisation application and the substantive import of the failure to seek simultaneous pre-approval for the grant of Bermudian status

10. It is common ground that as part of the naturalisation process, the Deputy Governor's Office consulted the Department of Immigration, which advised on June 20, 2012 (1^st Respondent) and June 21, 2012 (2^nd Respondent) that the “Minister of National Security has no objection to” the Respondents being naturalised. The same officer corresponded with the Respondents later that year on behalf of the same Minister in respect of the Bermudian status applications, which were initially addressed to the “Department of Immigration”5.

11. This consultation is in my judgment significant, because it demonstrates that if an application for pre-approval for Bermudian status had been made simultaneously with the naturalisation process, the same Minister would most likely have been involved in approving the naturalisation process and pre-approving the Respondents for the subsequent grant of Bermudian status. The Minister for National Security had no substantive or procedural objections in June 2012 to the grant of a naturalisation certificate. The Minister for National Security had no substantive objections to the Bermudian status applications in September 2012. The Minister for Home Affairs had no substantive objections to the applications in July 2013, nor indeed at the subsequent IAT appeal hearing. It appears that in the interim, the Department of

Immigration was moved from under the ambit of the Ministry of National Security to under the Minister of Home Affair's umbrella.

12. Bearing in mind the constitutional importance of the grant of a certificate of naturalisation in terms of the rights it confers to a connection with Bermuda under section 11(5)(b) of the Bermuda Constitution, one would reasonably expect there to be little difference...