Law report - constitutional claim against Prisons Commissioner

Nisbett v Commissioner of Prisons [2012] SC( Bda) 57 Civ

The Applicant had brought a constitutional motion to complain about his treatment whilst in prison for seven years.

The acts complained of were:

1. being beaten by prison officers or fellow prisoners on their instigation;
2. subject to inhuman solitary confinement;
3. being given unjustifiable restrictions on family visits;
4. being given unjustifiable restrictions on his religious diet requirements;
5. parole documents being destroyed by corrections officers;
6. loss of earnings due to release on licence being delayed by two years;
7. exposure to second-hand cigarette, cannabis and crack cocaine smoke from other cells

The respondent sought to strike out the claim because one should not bring a constutional motion if there are other means of legal redress.

Hellman J held that for (1), above, the applicant could have brough a civil claim for assault or battery [33]. However, the allegation of the abuse of state power meant that this might not be adequate redress in the circumstances [34]. He did not strike out the claim but invited the parties to make submissions on what should happen with that claim next [40].

Similarly for (5) above, which might constitute wrongful imprisonment, the consitutional claim would be allowed to proceed [41].

The remaining issues were more suitable for judicial review proceedings regarding whether the prison rules had been correctly applied [45]. These allegations were struck out for the constitutional motion [48]. Presumably the applicant could re-apply for leave to commence judicial review proceedings.

Rights of permanent residents

I wrote the article below a couple of months ago. It was published in the Royal Gazette on the 11 April 2012. As a footnote to the article, I would qualify my view on the rights of Belongers by saying that it's not entirely clear to what extent their rights are absolutely protected by the Constitution. However, it is clearly still an advantage to obtain Belonger status.

A couple of recent news articles have highlighted some of the uneven treatment handed out to Permanent Residents and husbands of Bermudians. A wife of a Bermudian is deemed to “belong” to Bermuda under the Constitution just the same as a Bermudian, so can stay here without restriction or hindrance even if she commits the most appalling crime imaginable (as long as her husband doesn’t divorce her for it). Husbands of Bermudians do not have the same luck. In fact, if a husband of a Bermudian loses his permission to remain in Bermuda, he does not even get a statutory right of appeal to an independent tribunal. In this respect, he has fewer rights than when the government revokes permission of a work permit holder.

PRC holders also face disadvantages. They may lose their status merely if they are absent from Bermuda for two years without government permission. A PRC holder at least gets a right of appeal if status is revoked.

There is, however, a way for husbands of Bermudians and PRC holders to obtain the coveted “Belonger” status. “Belongers” under the Constitution include Bermudians, wives of Bermudians, and, “citizens of the United Kingdom and colonies by virtue of the grant by the Governor of a certificate of naturalisation”. Essentially this means somebody who is naturalised in Bermuda as a British overseas territories citizen (a BOT citizen), which is not quite the same as British citizenship or Bermudian status. The vast majority of Bermudians should already be BOT citizens by birth. It doesn’t give you the right to vote, but it is a form of citizenship governed by UK law, and gives rights to live and work in Bermuda.

A husband of a Bermudian may apply to become naturalised as a BOT citizen by having lived lawfully in Bermuda for three years without any long periods of absence from Bermuda, being of good character and speaking English. A PRC holder can similarly be naturalised after having lived lawfully in Bermuda for five years. Some of the requirements may be waived in special circumstances.

Furthermore a husband of a Bermudian who had been living lawfully in Bermuda for three years prior to the marriage can apply for naturalisation as a BOT citizen immediately upon his marriage to a Bermudian. A PRC holder can apply for naturalisation one year after obtaining PRC status, provided they were living here for four years prior to obtaining PRC status.

Naturalisation is at the discretion of the Governor but the discretion should be exercised fairly and reasonably, and an applicant should be made aware of any problem areas in an application.

It is noted that the Bermuda immigration laws do not recognise Belonger status as a category of persons who may live and work in Bermuda without the permission of the Minister. However, it is likely to be unconstitutional for the Minister to refuse such permission for somebody who belongs to Bermuda.

It is also noted that the Bermuda Immigration and Protection Act allows a naturalised BOT citizen to apply for Bermuda status in certain circumstances. So BOT citizenship might be an avenue to Bermudian status for some PRC holders.

The bottom line is that BOT naturalisation may offer substantial protection to husbands and PRC holders against some of the quirks of Bermuda’s immigration laws.