Re Haynes (Judicial Review)

• Jurisdiction: Bermuda
• Judgment Date: 06 February 2008
• Date: 06 February 2008
• Docket Number: Civil Jurisdiction 2002 No. 314
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Civil Jurisdiction 2002 No. 314

In the matter of the Bermuda Immigration and Protection Act 1956

And in the matter of Reverend P.L. Christopher Haynes for Judicial Review

Mr K Hastings-Smith for the Applicant

Mr G Howard and Ms M Goodwin for the Respondent

The following cases were referred to in the judgment:

Mucklow v Minister of Home Affairs Civil Appeal 1978 No. 2

Marks v Minister of Home Affairs Civil Appeal 1983 No. 12

Fay v The GovernorBDLR [2006] Bda LR 65

Patterson v Minister of Labour, Home Affairs and Public SafetyBDLR [2001] Bda LR 66

Friedman v Minister of Labour, Home Affairs and Public SafetyBDLR [2004] Bda LR 51

Lloyd v McMahonELR [1987] AC 625

R (Alconbury Developments Ltd) v Secretary of State for the EnvironmentELR [2003] 2 AC 295

R (Q) v Secretary of State for the Home DepartmentELR [2004] QB 1

Preiss v General Dental CouncilWLR [2001] 1 WLR 1926

County Properties v Scottish MinistersUNK [2005] 5 LRC 709

R (Brooke) v Parole BoardTLR The Times, 5 February 2008

Judicial review - Immigration law - Work permit for minister of the AME Church - Right of appeal - Right to be heard

JUDGMENT of KAWALEY, J

Introductory

1. Bermuda is said to have the highest per capita income level in the world. For many years, its economy has created far more jobs, in almost every conceivable job category, than available Bermudians can fill. The country has for several decades been dependent, to a significant degree, on migrant labour, whose right to work and reside in Bermuda is regulated by the Bermuda Immigration and Protection Act 1956. The application of immigration law and policy, as no doubt occurs everywhere, explicitly requires the Minister to protect the legal right of Bermudians to be employed ahead of overseas workers. But whereas in many countries, as was the case in Bermuda less than 35 years ago, migrant workers who reside for more than a minimum prescribed period often as short as five years can apply for permanent residence rights, no equivalent regime exists in Bermuda. This country's small size and considerable dependence on imported labour resulted in a national consensus that the permanent residency regimes applicable in larger countries was against the public interest of Bermuda.

2. The tension between the interests of the host community to regulate what foreigners should be allowed to work and reside in Bermuda, and the interests of a guest worker to seek to remain in Bermuda is perhaps greatest in the case of persons who have been given multiple permissions to work and reside over a period of years. The longer the guest worker stays, invariably because he or she is making a valuable contribution to Bermuda, the stronger their economic, emotional, family and social ties with Bermuda will become. This tension was recognised by the courts and the legislature, without being satisfactorily resolved, three decades ago. In Mucklow -v- Minister of Home Affairs, Court of Appeal for Bermuda, Civil Appeal 1978: No. 2, Judgment dated July 17, 1978, the Court of Appeal (Hogan P, Duffus JA and Telford Georges JA) unanimously quashed the Minister's revocation of the appellant's right to reside on the grounds that the rules of natural justice applied to such revocation. At page 31 of Sir Michael Hogan's separate judgment, the Court President concluded as follows:

" I am satisfied that, in all fairness, permission to remain in Bermuda could not be revoked without observing the rules of natural justice, particularly the audi alteram partem principle, in respect of an individual who, like the appellant, is accepted to be a man of integrity and who had for some ten years been a resident and operated a cottage colony, acquired under a license from the government, with a reasonable expectation of being allowed to remain here."

3. In Marks v Minister of Home Affairs, Court of Appeal for Bermuda, Civil Appeal 12 of 1983, Judgment dated April 6, 1984, a differently constituted Court (Sir Alastair Blair-Kerr P, Harvey da Costa JA and Sir John Summerfield JA) unanimously quashed the Minister's decision not to renew the appellant's work permit on the grounds that the Minister had failed to act fairly by depriving the appellant of an opportunity to know the nature of complaints alleged against him. At pages 35-36 of the Court President's separate judgment, Sir Alastair Blair-Kerr made the following observations about the impact of the length of previous residence in Bermuda on the work permit renewal applicant's position:

"If, in 1976, the Minister had refused to grant permission to the appellant to engage in gainful occupation, he would have had no grounds for complaint. Despite his previous association with, he could not previously have argued that he had a reasonable expectation of being allowed to returnbut by December 1982 a very different state of affairs existed. Permission to engage in gainful occupation had been renewed apparently automatically for six years.as we said on 17th November, non-renewal could have 'a traumatic upheaval on his life-perhaps temporarily depriving him of his means of livelihood.it was not enough that the Ministry did nothing to create in the mind of the appellant a reasonable expectation that he would receive a renewal of his permit"

4. The legislative response to these dicta was the introduction in 19871 of a new section 7A of the 1956 Act, which provided as follows:

"7A (1) A grant to a person shall not, except to the extent, if any, expressed in the grant, confer upon him any right, or ground or support any hope, claim or expectation which he may assert

(a) to or of any extension or renewal of the right or rights expressed in the grant; or

(b) to or of the award of any right or rights other than the right or rights so expressed.

(2) In subsection (1), "grant" means a certificate, licence, permit or other permission (whether so called or by any other name) given or issued to a person under any provision of this Act."

5. This provision meant that guest workers could remain in Bermuda on a work permit basis for indefinite periods of time but could not legally complain that the various extensions gave rise to any legitimate expectation on their part of further renewals. However, successive governments left unresolved the broader humanitarian issue of how long guest workers could be permitted to remain in Bermuda while being deprived of any opportunity to obtain permanent residential rights. The nettle was eventually grasped by a new Minister of Home Affairs appointed in late 1998, who on August 18, 2000 presented a Green Paper, and on July 13, 2001 a White Paper, to the House of Assembly setting out Government's legislative proposals for dealing with the long-term residents' issue2. The most important broad proposal was that any person who was ordinarily resident in Bermuda before August 1, 1989 for a 20 year period could apply

for a Permanent Resident's Certificate before August 1, 2010. The Bill which became the Bermuda Immigration and Protection Act 2002 on July 12, 2002 was presented to the House of Assembly on June 7, 2002 and passed in the House of Assembly two weeks later3. It is against this legal background that the decisions which gave rise to the present application for judicial review were made.

6. The parties agreed at the outset that there were no factual disputes which required resolution through oral examination, having regard to the fact this Court was not being asked to consider the merits of the decisions complained of, only the legality of the manner in which they were reached. The core background facts were not in dispute. The Applicant was first employed by the African Methodist Episcopal Church ("the AME Church") on or about June 15, 1983. He had resided in Bermuda for 18 years when the AME Church applied on October 3, 2001 for a further renewal. There were no qualified Bermudian applicants for the post which was duly advertised. The application was formally refused by letter dated June 7, 2002, the same day the long-term residents' amendments were tabled in the House of Assembly, by which time he had been in Bermuda for approximately 19 years. While the application was processed, objections from certain parishioners were received by the Ministry and orally discussed with the AME Church representative who was handling the application on the Applicant's behalf. The objections included the suggestion that the applicant had been engaged in ministerial work beyond the scope of his work permit. No reasons were given for the decision (none are, of course, required), and the Applicant was given until July 30, 2002 to leave Bermuda with his family. He had throughout this period lived in Bermuda with his wife and one daughter (apparently born shortly before he came to Bermuda), but also had two teenage daughters who were born after his arrival in Bermuda. He was, when this decision was made, a Guyanese national who had not permanently resided in Guyana since 1972. An appeal was belatedly filed by the Church's attorneys against the work permit refusal on June 14, 2002 to the Cabinet Appeal Tribunal, but the appeal was dismissed on July 25, 2002, with no reasons being given (again, none were required to be given). On July 29, 2002, the Ministry gave the Applicant until August 30, 2002 to leave Bermuda.

7. On August 27, 2007, the Applicant applied for leave to seek judicial review of the decisions of the Minister and the Cabinet Appeals Tribunal, and a stay of the requirement that he leave Bermuda by August 30, 2002. Acting Chief Justice Norma Wade-Miller granted an Order in these terms on August 27, 2007. By the time the case came to be heard, Mr. Hastings-Smith was forced to concede that the Applicant and the AME Church had now "parted ways". This lent credence to Mr. Howard's submission that the relief sought in relation to the Minister's June 7, 2002 decision...