Same-Sex Partners of Bermudians: Right to Live & Work

About Jennifer HaworthJennifer Haworth

Jennifer Haworth is a senior associate in the firm’s Litigation & Dispute Resolution team. Jennifer has a wide practice in all aspects of civil and commercial litigation both in Bermuda’s courts as well as in mediation and arbitration.

Jennifer Haworth’s full profile on mjm.bm.

As of 29 February 2016, same-sex partners of Bermudians will have the same right to reside and work in Bermuda as spouses of Bermudians. This is following the landmark decision of the Chief Justice of the Supreme Court, Justice Ian Kawaley, in Bermuda Bred Company v The Minister of Home Affairs and The Attorney-General handed down on 27 November 2015. The Chief Justice held certain provisions of the Bermuda Immigration and Protection Act 1956 (the “Immigration Act”) to be inoperative to the extdent that they discriminate against same-sex partners of Bermudians in stable relationships on the right to reside and employment rights when compared with spouses of Bermudians under those provisions.

The Attorney-General’s Chambers had initially argued at the handing down of the decision that the effect of the ruling should be stayed for a period of twelve months to give time for Chambers to review the impact of the decision on various other pieces of legislation. However, in a hearing on 7 December 2015, the Chief Justice found that only administrative changes were required to give effect to the decision and therefore stayed the decision only until 29 February 2016.

The Applicant is a company limited by guarantee and is said to have the primary object of promoting social justice and non-discrimination in Bermuda. In this case, the Applicants sought a declaration that “…same sex partners are entitled to the same treatment as wives and husbands under the Bermuda Immigration and Protection Act 1956 as read with section 5 of the Human Rights Act 1981”.

The arguments raised on behalf of the Attorney General (the “Respondent”) were largely technical in nature, for example, the Respondent first sought to argue that the Applicant lacked the proper standing to bring this type of action, but the Court dismissed that argument. Second, the Respondent argued that the administration of the Immigration Act did not form part of ‘services’ of a ‘public authority’ under Section 5 of the Human Rights Act 1981 (the “HR Act”).

The Chief Justice did not accept this argument but instead referred to another recent Supreme Court decision of Justice Hellman earlier this year in A and B v Director of Child and Family Services and Attorney-General in which Justice Hellman held that certain provisions of the Adoption of Children Act 2006 were inoperative to the extent that they discriminated on the grounds of marital status against same sex or unmarried couples contrary to the HR Act. With regard to the A and B case and in discussing the discrimination points raised later in the judgment, the Chief Justice said this of the case, “[it] is highly persuasive and I fully endorse it.” The Chief Justice rejected the Respondent’s argument with regard to the meaning of services’ of a ‘public authority’ concluding:

    “In my judgment, this is precisely what the draftsman was seeking to achieve by including the services ‘of any…public authority’. Having regard to the breadth of that term … it is difficult to ascertain any coherent basis for construing section 6(2) as intending to include some public services but not others.”

There was also debate between the parties as to whether the HR Act’s primacy provisions trump the Immigration Act’s primacy provisions. Section 30B of the HR Act says:

    “Primacy of this Act

    30B (1) Where a statutory provision purports to require or authorize conduct that is a contravention of anything in Part II, this Act prevails unless the statutory provision specifically provides that the statutory provision is that have effect notwithstanding this Act.

    (2) Subsection (1) does not apply to a statutory provision enacted or made before 1st January 1993 until 1st January 1995.”

In contrast, the Immigration Act says, at Section 8:

    “Conflict with other laws

    8(1) Except as otherwise expressly provided, wherever the provisions of this Act or of any statutory instrument in force thereunder are in conflict with any provision of any other Act or statutory instrument, the provisions of this Act or, as the case may be, of such statutory instruction in force thereunder, shall prevail.”

Much time was spent on the analysis of the conflict between these provisions in his judgment, but ultimately, the Chief Justice relied on a supplementary rule of construction to conclude:

    “…section 30B [of the HR Act] must properly be read as amending section 8 of the [Immigration Act] by implication to exclude the [HR Act] from the class of other legislation which the [Immigration Act] takes primacy over. In other words, I accept the Applicant’s central submissions that the [HR Act] takes primacy over the [Immigration Act].”

In terms of the discrimination points raised, the key points were discrimination directly against unmarried Bermudian on the grounds of marital status and indirectly against gay and lesbian Bermudians on the grounds of sexual orientation. The Chief Justice said, “The direct discrimination was self-evident and quite obvious.” Further, he discussed the matters which were not disputed between the parties in relation to the indirect discrimination and said:

    “Nor was it disputed that the marriage requirement operated to the detriment of Bermudians in stable same sex relationships analogous to marriage.”

In conclusion, the Chief Justice held:

    “Section 25 [, 27, 27A] and 60 of the Bermuda Immigration and Protection Act 1956 shall be inoperative to the extent that they authorise the Minister to deny the same-sex partners of persons who possess and enjoy Bermuda status, and who have formed stable relationships with such Bermudians, residential and employment rights comparable to those conferred on spouses by the said sections 25 and 60 respectively.”

Questions will undoubtedly arise from this case as to what constitutes a “stable” relationship and how this judgment will be applied going forward. The Chief Justice was clear that it is for the Minister to determine how to apply the judgment. He said:

    “This decision provides further support for the Applicant’s case in that the ECHR extends to Bermuda and there is a presumption, when interpreting legislation that Parliament did not intend to legislate inconsistently with international treaty obligations assumed by or on behalf of Bermuda. How will the Minister apply the present decision in practice and decide what same-sex relationships qualify for equal residential and employment rights presently available in connection with marriage? That is entirely for the Minister.”

This case is a key decision in Bermuda law as it relates to human rights jurisprudence. Unless there is an appeal raised by the Respondent, as of 29 February 2016, same-sex partners of Bermudians in stable relationships will have the same right to reside and work in Bermuda as spouses of Bermudians. We will continue to follow the progress of this matter and see how the judgment is applied in practice by the Minister in the Department of Immigration.

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