Michael Barbosa, who was born in Bermuda in 1976 to non-Bermudan parents, lost his bid before London’s Privy Council to be classed as a ‘belonger’ under Bermuda’s Constitution.  As a result, he is denied various rights which are available to other people who were born in Bermuda.

Mr Barbosa, who has British Overseas Territory citizenship by reason of his birth in Bermuda, lived in the Azores between 1992 and 2003 but otherwise has lived all his life in Bermuda.  He obtained a work permit on his return to Bermuda and was granted indefinite leave to remain in 2013.  In 2007, he married his wife, who was born in the Philippines, and who became a naturalised British Overseas Territory citizen in 2014.  He initiated proceedings in 2015 when he and his wife sought to adopt his wife’s niece from the Philippines, but were prevented from doing so as they were not classed as residents of Bermuda for the purposes of the Adoption of Children Act 2006.

Mr Barbosa would not have encountered this difficulty had he been able to apply for Bermuda status or a permanent resident’s certificate, but due to his circumstances he was ineligible to do so.  The existing pathways to Bermuda status are very limited.  In particular, there is currently no right to apply for status purely on the basis of long-term residency in Bermuda, unless domiciled on the island before 1956.  If he had been successful, Mr Barbosa’s case would have cleared the way for other British Overseas Territory citizens in a similar position to him (estimated at around 300) to apply for Bermuda status, giving them permanent rights to reside and work on the island.

In his claim he argued that his inability to seek Bermuda status was contrary to his constitutional rights.  Bermuda’s Constitution prohibits both restrictions on the right to reside in Bermuda as well as discrimination due to place of origin, except in relation to persons who do not ‘belong’ to Bermuda.

The Constitution contains a list of several categories of people who are deemed to belong to Bermuda.  This case essentially came down to the narrow question of whether this list is exhaustive.  Mr Barbosa did not come within one of the defined categories but he argued that people like him, who were born in Bermuda and had lived there for many years, can also belong to Bermuda under the common law.  His argument was initially accepted by the Supreme Court in 2016.  However, the Court of Appeal overturned the decision later that year.  He then appealed to the Privy Council, which heard the case in June 2019.

In rejecting his appeal, the Privy Council confirmed that the categories of ‘belongers’ in the Constitution are closed and that Mr Barbosa does not have a common law right to belong to Bermuda.  Although in the end this seemed to be a straightforward conclusion for the court to reach, the judgment nonetheless recognised the anomalies which arise as a result of the decision.  Specifically, had Mr Barbosa acquired British Overseas Territory citizenship by naturalisation (as his wife had) rather than by birth, then he could have fallen within the categories in the Constitution of people who belong to Bermuda.  Further, the wife of a person who belongs to Bermuda either because they possess Bermuda status or have been naturalised as a British Overseas Territory citizen, is also deemed to belong, whereas the husband of such a person (like Mr Barbosa) is not.

Some commentators have suggested that this decision has highlighted undesirable anomalies and that we may see legislative action in the coming years to correct these issues, as part of the Government’s ongoing consideration of immigration reform.  Mr Barbosa’s lawyer has also indicated that he believes there are grounds to take his case to the European Court of Human Rights, so the Privy Council’s decision may not be the final word.

Share
Twitter LinkedIn Email Save as PDF
More Publications
23 Mar 2023

Digital Assets in Bermuda – Unpacking the Proportionality Principle

A digital asset business wishing to obtain a licence under the Digital Asset Business Act 2018 will ...

Contributors: Karim Creary
10 Mar 2023

Bermuda Companies with Outsourced Services Should Review Contracts

It could be the influence of the Bermuda Triangle, but the convergence of several different circumst...

27 Feb 2023

Bermuda Businesses: Are You Ready to Comply with Our New Privacy Rules?

There have been recent indications from the Bermuda Government that Bermuda’s Personal Information...

24 Feb 2023

Home Transfers Within a Family Still Incur Taxes in Bermuda

Any home sale or transfer either by a live person or by inheritance typically attracts stamp duty.

20 Feb 2023

Bermuda: An Introduction to Dispute Resolution

This edition discusses Current Economic Conditions. 

Contributors: Khiyara Krige, James Batten
8 Feb 2023

Bermuda's Personal Information Protection Act - Are You Ready?

There have been recent indications from the Bermuda Government that Bermuda’s Personal Information...

1 Feb 2023

Starting a captive in Bermuda? What you need to know.

Bermuda has seen a steady increase in new captives being formed as well as new structures, risks and...

1 Feb 2023

Fund Finance Laws and Regulations 2023 – Bermuda

Bermuda is a major centre in the international offshore investment fund industry, with more than USD...

Contributors: Arielle DeSilva
25 Jan 2023

Chambers Insurance & Reinsurance Guide 2023: Bermuda

This guide provides the latest information on sources of insurance and reinsurance law, overseas-bas...

23 Jan 2023

Sponsored Dependants; How and Where Can They Work?

If a person arrives on the island under a work permit with their spouse or partner who is a sponsore...