Bermuda Immigration Appeal Tribunal to publish decisions online

About Jessica FaiellaJessica Faiella

Jessica is an associate in the firm’s dispute resolution practice group. She practices in the area of civil and commercial litigation and advises on a wide range of matters including property disputes, estate matters, mortgage enforcement, employment matters, debt collection and immigration. Jessica started with MJM as a Pupil in July 2013 and is a local Bermudian.

Jessica Faiella’s full profile on mjm.bm.

Prior to 2011 immigration appeals from decisions made by the Minister were dealt with by the Appeal Tribunal within the Cabinet. In 2011, the Immigration Appeal Tribunal (the “IAT”) was established as an independent body by the Bermuda Immigration & Protection Amendment Act 2011. However, it was only following the implementation of the Bermuda Immigration and Protection (Appeal) Rules 2013 (the “Appeal Rules”) that the IAT was convened.

Since the IAT has convened it has heard approximately 60 cases. Minister of Home Affairs, Michael Fahy, said in a recent press release, that these cases have resulted in “a body of well-reasoned written decisions that have influenced and shaped our understanding of the [Immigration Act] as well as influenced policies at the Department of Immigration for the better.” As a result, these decisions will now be posted online and open to the public for review. The hope is that by publishing these decisions it will be easier to obtain guidance on some complex issues that have arisen with applications made under the Bermuda Immigration and Protection Act 1956 as well as continuing with the spirit of openness and transparency.

The Minister noted how complex some of the cases the IAT has heard have been, including a case that dealt with whether the ordinary residency requirement began at birth or whether residency begins when the child is in the womb. Other interesting cases dealt with single parents of Bermudian children being asked to leave Bermuda, the refusal to grant Bermudian status or PRC, and one case dealt with whether there was a sham marriage, resulting in the revocation of Bermudian status.

The full text of the IAT decisions will be available on the Ministry of Home Affairs website in due course. However, it should be noted that these decisions are not binding legal precedent with the same effect as case law decided by a court. There is a right of appeal to the Supreme Court on a point of law, and only those decisions which have been decided by the court on appeal represent the law. Even though the IAT is chaired by experienced members of the legal profession, acting in a quasi judicial capacity, their decisions represent guidance for the way in which future cases may be decided, but are not determinative of general legal rights applicable to all cases, or which can be relied upon as judicial precedent.

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