Bermuda’s immigration laws have been found to contravene the island’s constitution by the Supreme Court.

The latest ruling to raise questions about the Bermuda Immigration and Protection Act 1956 comes after Michael Barbosa challenged provisions in the statute that he claimed discriminated against him on the basis of his place of origin and prevented him gaining status.

In his judgment, Puisne Judge Stephen Hellman recognised the Bermuda Government’s new Pathways to Status policy as a remedy for the constitutional violation and said Mr Barbosa could bring the case back to court if the proposed changes were not enacted.

Michael Fahy, the Minister of Home Affairs, said the case highlighted the need for the Pathways to Status initiative.

“The court held that our immigration legislation was discriminatory on the basis of place of origin in failing to provide a pathway to status to him and to other British Overseas Territories Citizens who were ordinarily resident here on July 31, 1989. The court did this on two alternate grounds.

“It is unconstitutional to discriminate between firstly a BOTC born to Bermudian parents and a BOTC who was not, and a BOTC born in Bermuda and a BOTC born outside.

“The courts have ruled there must be a pathway to status for people in Mr Barbosa’s situation. This also means that any person born in Bermuda before 1 January 1983 has the constitutional right to live and work in Bermuda free of immigration control.”

Mr Barbosa was born in Bermuda in 1976 and lived on the island until he was 16 when he moved to the Azores with his family.

He returned to live on the island 11 years later and initially obtained a work permit until he was granted indefinite leave to remain in Bermuda in 2013.

But under the 1956 Act he is not eligible to obtain status or a permanent resident’s certificate because neither of his parents possessed Bermudian status at the time of his birth.

In a civil lawsuit heard in December, Mr Barbosa’s lawyer, Peter Sanderson, argued that section 20B (2)(a) of the Act unlawfully discriminated against Mr Barbosa on the ground of place of origin because it treated him less favourably than someone at least one of whose parents possessed Bermudian status at the time of his birth.

Judge Hellman said: “I agree. In my judgment, which is guided by the principle of giving full recognition and effect to those fundamental rights and freedoms with a statement of which the constitution commences, the prohibition in section 12 of the constitution against affording different treatment to someone attributable wholly or mainly to his description by place of origin, such that he is subjected to disabilities or restrictions to which persons of another place of origin are not subject, extends to affording different treatment of that nature to someone by reason of his parents’ place of origin.

“In the circumstances I grant a declaration that Mr Barbosa has been discriminated against on grounds of place of origin contrary to section 12 of the Constitution.

“The proposed Pathways to Status will provide him with an effective remedy. If, by the end of the current legislative session, no such remedy has been provided, Mr Barbosa has liberty to restore this matter to court.”

In his judgment Puisne Judge Hellman also found that Mr Barbosa was a person who belongs to Bermuda under the Constitution, and is therefore free to work in Bermuda free of immigration control.

He said: “Mr Barbosa feels keenly that he has second-class status in Bermuda, although he looks upon the island as his only home. The practical consequences include restrictions on his employment opportunities and his ability to purchase property.

“The less tangible consequences include the prejudice which he has encountered from some of those who do not regard him as ‘really Bermudian’.”

Mr Barbosa and his wife, Christine, also challenged present legislation that prevents them from adopting.

However, Judge Hellman reserved judgment on the question of adoption as well as damages until the 2015 case of Williams v Minister for Home Affairs had been heard by the Court of Appeal.

In that case, Chief Justice Ian Kawaley held that section 11(5) of the Constitution conferred on persons who were deemed to belong to Bermuda not just the right to reside in Bermuda but also the right to seek employment in Bermuda without any restrictions and without being discriminated against.

Judge Hellman added: “Mrs Barbosa was born in the Philippines. Mr and Mrs Barbosa married in Bermuda in May 2007.

“Mrs Barbosa has a niece in the Philippines whose mother has died. Mr and Mrs Barbosa would like to bring her to Bermuda in order to adopt her.

“However, they have been advised that they cannot adopt her here as they are not residents of Bermuda within the meaning of the Adoption of Children Act 2006.”