UK Privy Council Dismisses Appeal By Barbosa

November 11, 2019

The Privy Council in the UK has dismissed an appeal by Michael Barbosa, stating that “under the Constitution, Mr Barbosa does not enjoy Bermudian status or belong to Bermuda and the Board will humbly advise Her Majesty that the appeal must be dismissed.”

In a summary [PDF] the Privy Council said, “The appellant, Mr Barbosa, was born in Bermuda in 1976. His parents were not Bermudian. Under the British Nationality Act 1948, Mr Barbosa’s birth in Bermuda made him a citizen of the United Kingdom and Colonies.

“By operation of the British Nationality Act 1981, he became a British Dependent Territories citizen in 1983. This citizenship was renamed British Overseas Territories citizenship by the British Overseas Territories Act 2002, which also conferred British citizenship on Mr Barbosa. Mr Barbosa has lived in Bermuda continuously since around 2003. In 2007, he married Christine Barbosa, who was born in the Philippines.

“In 2013, Mr Barbosa was granted indefinite leave to remain in Bermuda. He was, however, told that he was not able to apply for Bermudian status. Mrs Barbosa’s situation was different: she was first granted indefinite leave to remain in Bermuda and then a certificate of naturalisation as a British Overseas Territories citizen under the 1981 Act. This meant that she was ‘deemed to belong to Bermuda’ under section 11[5] of the Bermudian Constitution.

“When these proceedings were commenced, Mr and Mrs Barbosa wished to bring Mrs Barbosa’s niece to Bermuda and adopt her. They were told that the adoption would not be permitted because they were not residents of Bermuda within the meaning of the Adoption of Children Act 2006.

“Mr and Mrs Barbosa began proceedings against the respondents in August 2015, seeking several declarations. “The only one of those which is relevant to this appeal is the declaration sought by Mr Barbosa that, as a British Overseas Territories citizen, he belonged to Bermuda for the purposes of section 11 of the Constitution and was a resident of Bermuda within the meaning of the 2006 Act.

“The Supreme Court of Bermuda found that Mr Barbosa was entitled to the declaration. The respondents successfully appealed to the Court of Appeal of Bermuda, and Mr Barbosa now appeals to the Judicial Committee of the Privy Council.”

In providing “Reasons for the Judgment”, the summary said, “Mr Barbosa does not have a relevant common law or other right which informs the proper interpretation of section 11 of the Bermudian Constitution.

“The concept of belonging to an overseas territory does not derive from the common law. Instead, it derives from the local constitution or the local legislation of the overseas territory in question. Mr Barbosa cannot appeal to the common law to modify the meaning of the Constitution.”

“Mr Barbosa is both a British Overseas Territories citizen and a British citizen, but neither status gives him a right of abode in Bermuda or a right to be treated as a person who belongs to Bermuda. Those are rights defined by the law of Bermuda, not by a United Kingdom statute.”

“Under the Constitution, Mr Barbosa does not enjoy Bermudian status or belong to Bermuda and the Board will humbly advise Her Majesty that the appeal must be dismissed.”

The full judgment follows below [PDF here]:

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