The Minister of Home Affairs and another (Respondents) v Barbosa (Appellant) (Bermuda)

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Case summary

Case ID

JCPC/2017/0048

Jurisdiction

Bermuda

Parties

Appellant(s)

Michael Barbosa

Respondent(s)

The Minister of Home Affairs and another

Issue

Is the list of deemed “belongers” in section 11(5) of the Constitution of Bermuda an exclusive list such that it excludes non-naturalised British Overseas Territories (“BOT”) citizens who acquired citizenship by virtue of their connection to Bermuda?

Facts

Mr Barbosa was born in Bermuda on 12 February 1976 to non-Bermudian parents at which time he became a “citizen of the United Kingdom and Colonies by birth”. On 26 February 2002 he acquired BOT citizenship by virtue of the British Overseas Territories Act 2002. However, his parents not being Bermudian, he acquired no rights which entitled him to reside in Bermuda. On 25 October 2013, Mr Barbosa was granted indefinite leave to remain in Bermuda, but he is not eligible to apply for Bermudian status or a permanent resident’s certificate. On 10 August 2015, Mr Barbosa sought various declarations and damages for interference with his constitutional rights. On 04 March 2016, Hellman J granted three declarations, including that Mr Barbosa “belongs” to Bermuda within the meaning of section 11(5) of the Constitution and that he has been discriminated against on the ground of origin contrary to section 12 of the Constitution. The Minister of Home Affairs and the Attorney General appealed. The Court of Appeal held that persons like Mr Barbosa who were born in Bermuda of parents who did not have Bermudian status were not “deemed to belong to Bermuda” for the purpose of section 11(5) of the Constitution, the consequence of which was that section 12 also did not apply. The Court of Appeal thus set aside the declarations of Hellman J. Mr Barbosa appeals to the Judicial Committee of the Privy Council.