(1) Timothy Haymon (2) Richard Sankar v (1) Derek Been (in his capacity as the Director of Immigration) and (2) The Attorney General of the Turks and Caicos Islands (CL 81 of 2021) [2024] TCASC 10 (12 March 2024)

Case summary

The Plaintiffs, both male, were married in Florida, USA on 2nd November 2020. Same sex marriages became legal in Florida in 2015. Mr Sankar is a Turks and Caicos Islander having been granted status on 19th May 2021. On 16th August 2021 Mr Haymon applied for a residence permit pursuant to s.29(1) of the Immigration Ordinance (Cap. 5.01) (‘the Ordinance’). Mr Haymon was already lawfully allowed to remain in the Turks and Caicos Islands (‘TCI’) by virtue of holding a home- owner permit. The purpose of applying for a residence permit was to give Mr Haymon the right to work.

S.19 of the Ordinance imposes restrictions on engaging in gainful employment within the TCI and provides a list of exemptions of persons to whom the restriction does not apply. S.19 (1)(b) provides an exemption to “the spouse of an Islander [who is] the holder of a Residence Permit”. A home-owner permit does not carry the privilege of being able to take up gainful employment.

By way of letter dated 1st October 2021 from the 1st Defendant, the application was refused. The letter concluded: “Kindly be advised that after reviewing your application, we are unable to grant it. The reason is, in the absence of definition (sic) of spouse in the Immigration Ordinance, we relied on the definition of marriage under the Marriage Ordinance and the Constitution. Both dictate that marriage is between a man and a woman. Turks (sic) and Caicos Islands neither recognizes (sic) same sex marriage nor civil unions. Any change to this is a matter of policy for the Government to consider.”

The Plaintiffs commenced this action by way of originating summons dated 8th October 2021 and issued on 21st October 2021.  An amended originating summons was re-dated 17th January 2022 and was filed on 17th March 2022. The application is brought under s.21 of the Constitution which provides for the enforcement of the fundamental rights and freedoms of an individual protected under Part 1 of the Constitution.

What is being sought by the Plaintiffs are declarations that: a. the First Defendant was wrong to define the word ‘spouse’ by reference to the Marriage Ordinance and to the Constitution; b. the refusal to grant a work permit to the First Plaintiff is a breach of the protected fundamental rights and freedoms guaranteed by the Constitution; and if they are successful on those arguments the Plaintiffs seek: c. an amendment to the Marriage Ordinance which would include in the definition of ‘spouse’ (or such other description) same-sex couples or something equivalent.

 

Held: The denial to a same-sex couple of a right to marry, and hence a right to have an overseas same-sex marriage recognised in the TCI is not, in my judgment discriminatory, s.10(1) of the Constitution being the lex specialis as far as marriage is concerned, and such denial does not contravene the fundamental protected rights under the Constitution and hence, does not allow a widening of the definition of ‘spouse’ with respect to the Immigration Ordinance.

The question that arises is whether the refusal to give the Plaintiffs access to the same rights as a married couple, based on their sexual orientation, is discriminatory. The Constitution at s.16 gives protection from discrimination based inter alia on sexual orientation.

The limiting of the grant of a spousal resident permit to only heterosexual couples in my view is discriminatory but not on the basis of marriage. It fails to grant equal rights to homosexual couples who are in a permanent and committed relationship. In my view, there can be no doubt that the refusal to grant Mr Haymon the equivalent right to a residence permit as would be granted to a heterosexual spouse (whether or not they were married in the TCI) offends the protection afforded by s.16 of the Constitution, a fortiori given the expressed protection afforded on the basis of sexual orientation, is not so expressed in the Bermudan Constitution, the European Convention on Human Rights or the Cayman Islands Bill of Rights.

The Plaintiffs are entitled to the declaration they seek, that the refusal to grant a residence permit to Mr Haymon based on the definition of a spouse is in contravention of the protected rights in s.9 and 16 of the Constitution.


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