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

For the purposes of the Constitution of Bermuda, belonging to Bermuda is a local constitutional concept. It is not a common-law status arising from birth in the territory or from British citizenship. Section 11(5) exhaustively defines the persons deemed to belong to Bermuda for sections 11 and 12. British Overseas Territories citizenship does not itself confer a right of abode or belonger status in Bermuda. A generous interpretation of constitutional rights must respect the text, drafting traditions and local allocation of responsibility for immigration and status. It cannot add a category omitted from section 11(5), or import rights from United Kingdom nationality legislation or international law.

Mr Barbosa was born in Bermuda to Portuguese parents and later acquired British Overseas Territories citizenship. He lived in Bermuda under indefinite leave to remain but was told that he could not apply for Bermudian status. He sought a declaration that he belonged to Bermuda for sections 11 and 12 of the Constitution of Bermuda, and was therefore resident for the purposes of the Adoption of Children Act 2006.

Hellman J granted the declaration on 4 March 2016. The Court of Appeal of Bermuda allowed the respondents’ appeal on 25 November 2016. The central issues on further appeal were whether Mr Barbosa had a common-law right to belong to Bermuda and whether section 11(5) provided an exhaustive definition of constitutional belongers.

The appeal was dismissed. The Board, in the joint judgment of Lord Kitchin and Lord Sales, advised Her Majesty accordingly.

1. At common law there was no concept of belonging to a particular territory within the Crown’s dominions for rights of entry or abode. The relevant relationship was between the Crown and the subject, based on personal allegiance. The concept of belonging to an overseas territory, and the associated right of abode, derived from the territory’s constitution or local legislation. The English common-law authorities concerning entry into the United Kingdom did not establish a Bermudian right.
2. British nationality was distinct from local belonger status. The British Nationality Act 1948, the British Nationality Act 1981 and the British Overseas Territories Act 2002 governed United Kingdom nationality and related statuses. They did not confer a right of abode in Bermuda or determine who belonged there. Those matters were governed by Bermudian law.
3. The Constitution was to receive a generous interpretation which gave full effect to fundamental rights, while respecting its language, traditions and usages. That approach did not permit the court to import a common-law right or amend the constitutional scheme. Section 11(5), read with section 102(3) and section 12(5), exhaustively defined the persons who belonged to Bermuda for the relevant constitutional purposes. The use of the deeming formula reinforced that conclusion.
4. R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] AC 453 and Pomiechowski v District Court of Legnica, Poland [2012] UKSC 20 concerned rights arising in materially different legal settings and were distinguishable. The principle of legality in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115 was not applicable because no underlying Bermudian right existed. International law did not assist a person without Bermudian status.
5. The apparent sex-based anomaly in section 11(5)(c) resulted from clear constitutional language and could not be corrected by interpretation. Mr Barbosa fell outside the statutory categories and was not entitled to the declaration sought.

• Privy Council — On further appeal, dismissed the appeal and advised Her Majesty accordingly: [2019] UKPC 41.
• Court of Appeal of Bermuda — Allowed the respondents’ appeal from Hellman J’s decision dated 4 March 2016, in Civil Appeals Nos 3 and 3A of 2016.
• Supreme Court of Bermuda — Hellman J granted Mr Barbosa’s declaration on 4 March 2016 in proceedings numbered 2015 No 336.