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Chief Justice’s ruling makes bid for status easier

Posted by: Anita Yates
Category: In the News, Lawyers

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Source: The Royal Gazette, Bermuda

The path to Bermuda status for holders of Permanent Resident Certificates just got easier, under a ruling delivered yesterday at the Supreme Court.

The judgment by Chief Justice Ian Kawaley undoes a legal precondition so confusing that Mr Justice Kawaley likened it to Lewis Carroll’s fantasy of Alice in Wonderland.

PRC holders Rebecca Carne and Antonio Correia initially had their applications for Bermuda status refused by Government — but the Immigration Appeals Tribunal later found they were entitled to status.

That decision was subsequently challenged by Home Affairs Minister Michael Fahy.

However, in an almost 50-page judgment, Mr Justice Kawaley has dismissed that appeal — noting that the legal test had also served to clarify an obscure area of immigration law.

Lawyer Peter Sanderson welcomed the ruling, telling The Royal Gazette: “This means that permanent residents who were here since July 31, 1989 will, as long as they are of good character, be able to apply for status. It helps people who’ve lived most of their lives in Bermuda to apply.”

Mr Sanderson added: “This whole case is about clarifying what the law means and how people are supposed to go about applying. Permanent residency, introduced in 2002 by the Progressive Labour Party, creates a whole class of people who can use this section of the Immigration and Protection Act 1956 to apply for Bermuda status.”

The Act was amended in 2011 to create the Immigration Appeals Tribunal, thus providing applicants with an independent body to appeal decisions by the Minister. The Act also contains, in Section 20(B), a basis for PRC holders to bid for status.

The two respondents in the case, who received their PRCs in 2009 and 2007 respectively, contacted Immigration in 2012 to query the procedure — but were told that no standard application forms existed through 20(B) because “it has not been used in quite some time now”.

In his judgment, Mr Justice Kawaley called the Act “a classic instance of uniquely local legislation”.

The Chief Justice added: “Navigating through it often gives even the experienced judge or practitioner an unnerving sense of what it must be like to ‘fly blind’.”

Although some areas of the law have been brought repeatedly before the courts, Mr Justice Kawaley said: “Section 20B (2)(b) is not one of those familiar provisions.”

Mr Sanderson, he added, “appears to be the first lawyer for many years to have discerned the beauty in these sleeping provisions, and to have been inspired to seek to bring them back to life.”

In considering the law as cited, the Immigration Appeals Tribunal found that Ms Carne and Mr Correia faced a catch-22: they were allowed to apply for status — but only under the stipulation that they were already “approved for the grant of Bermudian status”.

The Tribunal “struggled to give any sensible meaning to the phrase” and deemed that it “has no demonstrable relevance” — opting to disregard it.

However, as of 2013, Home Affairs refused the two applications on the grounds that they hadn’t been approved before their naturalisation was granted.

In his judgment, Mr Justice Kawaley quoted a 1994 Explanatory Memorandum for section 20B (2)(b) that showed it had been added to the Act 20 years ago with the aim of remedying a confusion of the law between naturalisation and applying for status — since many applicants assumed they had already obtained status through as a result of naturalisation.

Mr Justice Kawaley called it “a classic illustration of a case where what Parliament has enacted achieves a contrary result to what Government apparently intended”.

For the Minister to turn down the applications for status on the sole grounds that the two hadn’t been approved for status before getting naturalised had “an ‘Alice in Wonderland’ air to it”, he added.

Mr Justice Kawaley thus affirmed the Immigration Appeals Tribunal’s decision.

Accepting the decision on Government’s behalf, lawyer Phil Perinchief said the finding would act as “a benchmark and a compass” for future litigants appearing before the Tribunal.

The Royal Gazette: click here to read the full article