Wrong decision made in landmark Bermuda Bred case

Owain Johnston-Barnes

Published May 15, 2018 at 8:00 am (Updated May 15, 2018 at 8:07 am)

Chief Justice of Bermuda Ian Kawaley

Chief Justice Ian Kawaley made the wrong decision in the landmark Bermuda Bred case which gave same-sex partners the same rights to live and work on the island, the Court of Appeal has said in a written judgment.

The Appeals Panel found that the Bermuda Immigration and Protection Act had priority over the Human Rights Act.

Appeal Judge Geoffrey Bell said: “If it had been suggested to Parliament in 1981 that the effect of the Human Rights Act was to take precedence over the regulation of employment by the minister under the BIPA, the answer would have been swift and strong to say that was not Parliament’s intention.”

He added the issue was now only one of “academic interest” due to the passing of the Bermuda Immigration (No 2) Act last year, which spelled out the primacy of the BIPA.

The comments came as the Court of Appeal overturned a separate Supreme Court ruling, which was based in part on the Bermuda Bred case.

In the Bermuda Bred case, Mr Justice Kawaley ruled that same-sex partners of Bermudians have the same right to live and work in Bermuda as spouses of Bermudians.

The ruling was based on the view that the Human Rights Act had primacy over immigration law.

The decision was never appealed and resulted in the introduction of same-sex marriage in Bermuda.

In the present case, Marco and Paula Tavares, long-term Bermuda residents, had applied for indefinite permission to work in Bermuda but were refused.

Ms Tavares is a British Overseas Territories citizen born in Bermuda and Mr Tavares her husband.

Puisne Judge Stephen Hellman earlier found the minister had unlawfully discriminated against Mrs Tavares by treating her less favourably than someone whose parents had Bermudian status.

The Minister of Home Affairs, the Governor and the Attorney-General’s Chambers argued the island’s immigration legislation has primacy over the Human Rights Act — contrary to the ruling in the Bermuda Bred case.

All three members of the panel backed the appeal.

They found in a judgment handed down on April 20 that the Chief Justice had erred in the Bermuda Bred ruling

Mr Justice Bell said: “The HRA does not operate so as to render the provisions of the BIPA subject to the discrimination provisions of the HRA.

“To hold otherwise would, in my view, be to ignore the fact that the Constitution expressly recognised the need to discriminate against persons who do not belong to Bermuda in the regulation of employment.”

Fellow appeals judge Sir Christopher Clarke supported Mr Justice Bell’s ruling and said immigration legislation was “inherently discriminatory”.

He said: “If the regulation of engagement in gainful occupation of non-Bermudians is to be regarded as the provision of a service by the ministry, I find it difficult to see why the regulation of entry into, and of stay and residence within, Bermuda are not also the provision of such a service.

“By this logic it would be unlawful to refuse to allow a non-Bermudian with no links whatever with Bermuda to enter, remain and work in Bermuda. To do so would be direct discrimination. The UK citizen would be at liberty to come, reside, and work in Bermuda without restriction, in company with the citizens of any other state.”

Sir Scott Baker added he was unable to avoid the conclusion that the Supreme Court had been incorrect in its decision.

He said: “The minister, in exercising his powers through an immigration officer under section 60 of the BIPA, is quite simply not supplying goods, facilities or services.”

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