Minister of Home Affairs & Attorney General v Williams

• Jurisdiction: Bermuda
• Judge: Baker P,Bell JA,Hargun AJA
• Judgment Date: 01 April 2016
• Court: Court of Appeal (Bermuda)
• Docket Number: Civil Appeal 2015 No 15
• Date: 01 April 2016

[2016] Bda LR 40

In The Court of Appeal for Bermuda

Before:

Baker P; Bell JA; Hargun AJA

Civil Appeal 2015 No 15

Between:

Minister of Home Affairs and Attorney General

Appellants

and

Melvern Williams

Respondent

Mr J Guthrie QC and Ms W Greenidge for the Appellants

Mr P Sanderson for the Respondent

The following cases were referred to in the judgment:

Minister of Home Affairs v FisherELR [1980] AC 319

Attorney General v Grape Bay LtdBDLR [1998] Bda LR 6

Oliver v ButtegiegELR [1967] 1 AC 115

Matthew v State of Trinidad and TobagoELR [2005] 1 AC 433

Matadeen v PointuELR [1999] 1 AC 98

Negle v FeildenUNK [1966] 1 All ER 689

Salem v Chief Immigration Officer of Zimbabwe 1995 (4) SA 280

Sesana v Attorney GeneralUNK [2007] 2 LRC 711

Thompson v Bermuda Dental BoardUNK [2008] UKPC 33

Attorney-General v Antigua Times LtdELR [1976] AC 16

Hamel-Landry v Law CouncilUNK [2013] 2 LRC 36

Bohn v Republic of VanuatuUNK [2013] 5 LRC 211

BS Commercial Farmers Union v Minister of Lands, Agriculture and ResettlementUNK [2001] 2 LRC 52

Innis v Attorney GeneralUNK [2008] UKPC 42

Merson v CartwrightUNK [2005] UKPC 38

Immigration — Naturalised British Overseas Territories Citizen — Belonging to Bermuda — Right to work — Discrimination on place of origin — Constitutional damages

JUDGMENT of Baker P

1. This is the judgment of the Court to which each member has contributed. Melvern Williams, the respondent, is a naturalised British Overseas Territory Citizen pursuant to a certificate of naturalisation dated 16 December 2014. As such he is deemed to belong to Bermuda under section 11(5)(e) of the Constitution. On 13 March 2015 his employers, D&J Construction Limited terminated his employment on the ground that the Department of Immigration (for which the first appellant has ministerial oversight) had notified them that his employment must cease immediately. He sought a declaration that as a person who belongs to Bermuda pursuant to section 11(5) of the Constitution he has a right to engage in employment and business without discrimination pursuant to section 12 of the Constitution, and that he does not require the specific permission of the Minister to engage in employment or business. Kawaley CJ, in an ex tempore judgment, found in his favour and granted him $25,000 for loss of earnings from 13 March 2015 to the date of judgment and $5,000 for breach of his constitutional rights.

2. The appellants, who are the Minister for Home Affairs and the Attorney-General appeal against the Chief Justice's decision and there is a cross-appeal against the sum of $5,000 which it is contended is inadequate. It is not disputed that the sum of $25,000 is, subject to liability, appropriate.

3. The Chief Justice's decision was founded on two bases, (1) the true construction of section 11 of the Constitution and (2) discrimination contrary to section 12 of the Constitution.

The Relevant Statutory Provisions

4. Section 60(1) of the Bermuda Immigration and Protection Act 1956 (‘the 1956 Act’) provides:

‘(1) Without prejudice to anything in sections 61 to 68, no person-

(a) other than a person who for the time being possesses Bermudian status; or

(b) other than a person who for the time being is a special category person; or

(c) other than a person who for the time being has spouse's employment rights; or

(cc) other than a permanent resident; or

(d) other than a person in respect of whom the requirements of subsection (6) are satisfied,

shall, while in Bermuda, engage in any gainful occupation without the specific permission (with or without the imposition of conditions or limitations) by or on behalf of the Minster.’

5. The Bermuda Constitution Order 1968 provides in Chapter 1 for the protection of fundamental rights and freedoms of the individual. Section 1 is in the form of a preamble and mentions the rights and freedoms that are set out specifically in the following sections. Section 11 is headed ‘Protection of Freedom of Movement’.It provides:

‘11 (1) Except with his consent, no person shall be hindered in the enjoyment of his freedom of movement, that is to say, the right to move freely throughout Bermuda, the right to reside in any part thereof, the right to enter Bermuda and immunity from expulsion therefrom.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision:’

There is then set out a number of different circumstances, the material one for the purpose of the present case being:

‘(d) for the imposition of restrictions on the movement or residence within Bermuda of any person who does not belong to Bermuda or the exclusion or expulsion therefrom of any such person’

6. Subsection (5) provides that for the purposes of the section a person shall be deemed to belong to Bermuda if that person:

‘(a) possesses Bermudian status

(b) is a citizen of the United Kingdom and Colonies by virtue of the grant by the Governor of a certificate of naturalisation under the British Nationality and Status of Aliens Act 1914 or the British Naturalisation Act 1948

(c) is the wife of a person to whom either of the forgoing paragraphs of this subsection applies not living apart from such person under a decree of a court or a deed of separation; or

(d) is under the age of eighteen years and is the child, stepchild, or child adopted in a manner recognised by law of a person to whom any of the foregoing paragraphs of this subsection applies.

7. Section 12 so far as material provides:

‘(1) Subject to the provisions of subsections (4) (5) and (8) of this section, no law shall make any provision which is discriminatory either of itself or in its effect.

(2) Subject to the provisions of subsections (6), (8) and (9) of this section, no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority.

(3) In this section, the expression ‘discriminatory’ means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, place of origin, political opinions, colour or creed whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to person of another such description.

(4) Subsection (1) of this section shall not apply to any law so far as that law makes provision…:

(b) with respect to the entry into or exclusion from, or the employment, engaging in any business or profession, movement or residence within Bermuda of persons who do not belong to Bermuda for the...