Tavares and Tavares v The Minister of Home Affairs, The Governor and The Attorney General
| Jurisdiction | Bermuda |
| Judgment Date | 16 August 2017 |
| Neutral Citation | [2017] SC (Bdfa) 65 Civ |
| Date | 16 August 2017 |
| Docket Number | CIVIL JURISDICTION 2017: No. 88 |
| Court | Supreme Court (Bermuda) |
[2017] SC (Bdfa) 65 Civ
In The Supreme Court of Bermuda
CIVIL JURISDICTION 2017: No. 88
In the Matter of Order 53 of the Rules of the Supreme Court and In the Matter of the Human Rights Act 1981
And in the Matter of A Failure or Refusal to Consider an Application for Indefinite Residency/Naturalisation
Mr Peter Sanderson, Wakefield Quin Limited, for the Plaintiffs
Ms Lauren Sadler-Best, Attorney General's Chambers, for the Defendant
Judicial review — whether the Minister's refusal pursuant to section 60(1) of the Bermuda Immigration and Protection Act 1956 to allow one of the applicants to work without restrictions was in breach of section 5(1) of the Human Rights Act 1981 — whether the Minister's decision was unreasonable or disproportionate — whether the Minister's delay in communicating a decision to both applicants on their applications for indefinite leave to reside and to one of the applicants on his application for naturalised BOT citizenship was unlawful
(In Court)
This is the latest in a growing number of decisions in which long term residents of Bermuda who do not have Bermudian status seek to challenge the restrictions imposed on them by the Bermuda Immigration and Protection Act 1956 (“the 1956 Act”).
The Applicants, Mr and Mrs Tavares, are husband and wife. Mrs Tavares was born in Bermuda on 27 th March 1976. Under section 4 of the British Nationality Act, 1948 (“the 1948 Act”) she was a citizen of the United Kingdom and Colonies by birth. On 1 st January 1983 she became a British Dependent Territories citizen. This was by operation of section 23 of the British Nationality Act 1981 (“the UK Act”). Then, on 26 th February 2002, pursuant to section 2 of the British Overseas Territories Act 2002, she became a British Overseas Territories citizen. These types of citizenship were not held concurrently: each succeeded the other. The Acts which conferred them were all UK statutes.
If either of Mrs Tavares' parents had possessed Bermudian status then she, too, would have possessed Bermudian status. Section 18(1) of the 1956 Act provides that where a person is, after 30 th June 1956 and before 23 rd July 1993, born in Bermuda, he shall possess Bermudian status if he is a Commonwealth citizen and, at the time of his birth, one of his parents possessed Bermudian status. Although section 18(1) refers to “ he” and “ his”, section 9(b) of the Interpretation Act 1951 provides that in every Act words importing the masculine gender include females. But although Mrs Tavares was born in Bermuda during this timeframe she does not possess Bermudian status as neither of her parents possessed Bermudian status.
In December 1986 Mrs Tavares, aged 10, moved to the Azores with her parents. Her father returned to Bermuda in July 1989 and Mrs Tavares, now aged 13, and her mother returned in September 1989. Mrs Tavares completed her schooling in Bermuda, and, from 1995 – 2001, her higher education in Portugal and the Azores. Her parents left Bermuda in 2001.
Mrs Tavares married Mr Tavares, a Portuguese citizen, in the Azores in July 2001. He had been living in Bermuda on a work permit since 1998, where he worked as a landscape gardener. The couple returned to Bermuda after their marriage. They have two children, a son (date of birth: 6 th November 2007) and a daughter (date of birth: 22 nd March 2010) who were both born, and have been brought up, in Bermuda.
Mrs Tavares would like to work. However she states that her employment options are very limited because as matters stand she has to apply for a work permit. The relevant statutory provision is section 60(1) of the 1956 Act, which provides:
“ General principle regarding regulation of engagement in gainful occupation
(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 Minister.”
Mrs Tavares does not fall into any of categories (a) – (d).
By a letter dated 12 th October 2015, the Applicants' counsel, Peter Sanderson, wrote to the Department of Immigration in an attempt to remedy the work permit situation:
“ If Mr Tavares can naturalise, then he will be considered a belonger, and his wife will also be a belonger as the wife of a natuaralised person. This would enable them both to work freely. Although a somewhat odd result that Mrs Tavares' ability to work would be via her foreign-born husband, when she is the born citizen, it would give some measure of relief to them both.
…
In order to naturalise as a BOT citizen it is, of course, necessary that Mr Tavares does not have any restrictions on the period for which he is allowed to remain in Bermuda. He therefore seeks a grant of indefinite leave to reside from the Minister of Home Affairs prior to a decision on his naturalisation application. He will then be eligible to naturalise under s. 18(2) of the British Nationality Act 1981.”
The statutory provisions underpinning this request were as follows. Section 12(1) of the Constitution of Bermuda provides that subject to the provisions of inter alia section 12(4), no law shall make any provision which is discriminatory either of itself or in its effect. Section 12(4) provides that section 12(1) shall not apply to any law so far as that law makes provision with respect to the employment of persons who do not belong to Bermuda for the purposes of section 11 of the Constitution. Section 11(5) of the Constitution, read in conjunction with section 51(3) of the UK Act, provides that for the purposes of that section, a person shall be deemed to belong to Bermuda if that person is a citizen of the British Overseas Territories (“BOT”) by virtue of the grant by the Governor of a certificate of naturalisation under section 18(2) of the UK Act (section 11(5)(b)); or the wife of such a person not living apart from him under a decree of a court or a deed of separation (section 11(5)(c)).
Schedule 1 to the UK Act provides at para 7(c) that one of the requirements for naturalisation under section 18(2) is that on the date of the application the applicant was not subject under the immigration laws to any restriction on the period for which he might remain in that territory. Under section 25(1) of the 1956 Act it is unlawful for a person other than a person falling within an exempted category to remain or reside in Bermuda without the specific permission of the Minister, with or without the imposition of conditions or limitations. The exempted categories, which overlap with some of the categories in section 60(1), include that of a person who possesses Bermudian status. However the subsection provides that the Minister, in his discretion, may dispense with the requirement for specific permission.
The application for a grant of indefinite leave to reside in Bermuda in the 12 th October 2015 letter might be understood either as an application for leave to reside with the specific permission of the Minister but without any conditions or limitations, or alternatively as an application for leave to reside where the Minister has dispensed with the requirement of specific permission.
The 12 th October 2015 letter also included applications from Mrs Tavares:
“ … Mrs Tavares formally seeks confirmation of indefinite leave to reside in Bermuda and indefinite permission to work without having to seek specific permission each time.”
However the Department of Immigration does not appear to have treated the letter as a formal application on her behalf. Thus in her affidavit filed in these proceedings, the Chief Immigration Officer (“CIO”) states:
“ It is important to note that as at October 2015, the application before the Minister was on behalf of Mr. Tavares. There was a brief reference in the October letter to the issue of Mrs Tavares' ability to work without restriction.”
By a memorandum dated 28 th November 2016, the Deputy Governor advised the Department of Immigration that she was unable to grant Mr Tavares' application for naturalisation unless and until the Immigration Department determined that he was free from immigration control. As the Minister was not minded to grant indefinite leave to reside, this condition was not satisfied. On 1 st December 2016, the 12 th October 2015 letter containing Mr Tavares' applications was therefore stamped by the Ministry as having been “ Refused”. However the Minister wished to obtain guidance from the Attorney General's Chambers as to the precise terms of a response to Mr Tavares notifying him of the refusal. In the event, Mr Tavares was not informed of the outcome of his applications until one week prior to the present hearing. As the CIO did not consider that the letter contained an application from Mrs Tavares, in my judgment the refusal applied to Mr Tavares' application only.
Meanwhile, on 4 th March 2016 the Supreme Court handed down judgment in Barbosa v Minister for Home Affairs [2016] Bda LR 21. I held that section 11(5) of the Constitution should be interpreted broadly to include common law belongers as well as the persons expressly identified in that section as being deemed to belong to Bermuda. I therefore granted the applicant a declaration that while in Bermuda he could engage in any gainful...
To continue reading
Request your trial