Minister Fahy: Immigration Appeal Tribunal

Madam President, I am pleased today to provide an update on the Immigration Appeal Tribunal and shed some light on the status of the many appeals that have been held in abeyance since the 2011 amendments to the Bermuda Immigration and Protection Act 1956.

Madam President, at the time that the Bill was introduced it was said, and I quote: “the Bill puts right a wrong for which no blame need be cast. With perhaps good intentions the principal Act created a regime that permitted appeals from decisions of the Minister responsible for immigration to the Cabinet”.

Madam President, Senate is reminded that the Supreme Court of Bermuda, in considering the findings of the Cabinet Appeals Committee, has observed that the appeal of a Minister’s decision to a panel of his peers cannot be in keeping with the Constitutional requirement for independence and impartiality.

The Supreme Court opined in one particular case that “where a right of appeal is conferred by Parliament, it should be a right of appeal to a tribunal which complies with section 6(8) of the Constitution and is independent of the Executive”.

Madam President, it is against this backdrop the Immigration Appeal Tribunal was established by way of legislative amendment. To be clear Madam President, this amendment Bill came into effect in August 2011. We agree that the Immigration Appeal Tribunal had to be established.

Within the Amendment Act there was a provision for the Immigration Appeal Tribunal to “make rules governing the practice and procedure to be followed in relation to its proceedings.”

Effective August 2011, the Cabinet Appeals Committee ceased to exist. The then Minister, in accordance with his responsibilities continued to adjudicate applications and render decisions. As is understandable, for one reason or another, some of these decisions were challenged by way of appeal.

By January 2013, more than a year and half after the establishment of the Immigration Appeal Tribunal there were no Rules and a total of thirty seven cases waiting to be heard, which by 15 May, 2013 had grown to forty four.

Appellants were left frustrated and angry as a result of the lack of consideration of their appeal, some since August 2011.

It is my view that there has been a failure in ensuring that the legislative process was complete in order to provide for a functional Immigration Appeal Tribunal within a reasonable timeframe following the amendments to the principal Act.

The issue: no rules, no functioning Immigration Appeal Tribunal and the lives of the appellants placed on hold – and that is unacceptable.

This failure has resulted in the huge backlog of cases that will undoubtedly be dealt with at a considerable cost to the Bermuda Government. These costs include legal fees and the retention of dedicated resources to clear the backlog.

In recognizing the mounting costs and the injustice in the failure to adjudicate the appeals, this government moved quickly to take the necessary corrective action to address the matter.

Madam President, I am pleased to advise that in January 2013, a Clerk to the Tribunal was secured to establish the administrative infrastructure for the Immigration Appeal Tribunal and in February 2013 the Rules were finalized under the newly appointed Chairman, Mr. Timothy Marshall.

By April 2013, in my capacity as Minister of Home Affairs, every case file had been considered and in instances where grave errors of justice was evident in the decision making process as applied by previous Ministers, these decisions were over-turned and matters related to costs were agreed with each appellants’ legal counsel.

Madam President, notwithstanding that a number of decisions have been overturned, consent orders confirming these decisions remain outstanding and given the volume of work associated with the backlog of cases, the Attorney General’s Chambers was required to secure a dedicated consultant attorney to represent the Government. I can today confirm that effective June 2013, former Attorney General and Minister of Justice, Mr. Philip Perinchief has been retained by the Attorney General’s Chambers on a short-term contract to address the outstanding case work.

Madam President, it is expected that the backlog of cases currently awaiting consideration of the Immigration Appeal Tribunal will be dealt with in the coming months. It is regrettable that appellants’ lives have been held in abeyance for such an extended period as a result of the failure of the former administration to ensure that the legislative process was completed in accordance with constitutional requirements. It is important that there is faith in Government to handle such matters fairly and expeditiously and that is why we have moved to correct these injustices.

Thank you Madam President.

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