Oliveira v Attorney General (Antigua and Barbuda)
| Jurisdiction | UK Non-devolved |
| Judge | Sir Bernard Rix |
| Judgment Date | 02 August 2016 |
| Neutral Citation | [2016] UKPC 24 |
| Docket Number | Appeal No 0022 of 2015 |
| Date | 02 August 2016 |
| Court | Privy Council |
[2016] UKPC 24
Privy Council
From the Court of Appeal of the Eastern Caribbean Supreme Court (Antigua and Barbuda)
Lady Hale
Lord Kerr
Lord Wilson
Lord Hughes
Sir Bernard Rix
Appeal No 0022 of 2015
Appellant
David Dorsett PhD Owen Roach
(Instructed by M A Law (Solicitors) LLP)
Respondent
Carla Brookes-Harris Rose-Anne Kim
(Instructed by Charles Russell Speechlys LLP)
Heard on 9 February 2016
In April 2009 the appellant, Clive Oliveira, a native of Guyana, filed his application to be registered as a citizen of Antigua and Barbuda, on the basis of his wife's citizenship of Antigua and Barbuda and his subsisting marriage to her for more than three years, as he was entitled pursuant to section 114(1)(b) of the Antigua and Barbuda Constitution Order 1981 to do.
On 18 July 2011, nearly 27 months after his application for registration, Mr Oliveira was so registered.
Section 114(1)(b) provides as follows:
"(1) Subject to the provisions of paragraph (e) of section 112 and section 117 of this Constitution, the following persons shall be entitled, upon making application, to be registered on or after 1 November 1981 —
(a) …
(b) any person who —
(i) was married to a person who is or becomes a citizen …
Provided that no application shall be allowed from such person before the marriage has subsisted for upwards of three years and that such person is not, or was not at the time of the death of the spouse, living apart from the spouse under a decree of a competent court or a deed of separation …"
Mr Oliveira's wife had also been a Guyanese citizen when, on 30 September 2002, she had been registered as a citizen of Antigua and Barbuda on the basis that she had been domiciled there and for a period of not less than seven years preceding her application for registration had been lawfully ordinarily resident there, pursuant to article 114(1)(c)(ii) of the Constitution Order.
In this appeal, Mr Oliveira complains that the time taken to register him as a citizen of Antigua and Barbuda was unnecessarily and unreasonably long. He claims that this was a breach of his constitutional rights pursuant to the Constitution Order, as well as being a matter for judicial review, and that he is entitled to damages as a consequence. He submits that his damages should include damages for his inability to work in the interim between application and registration.
The respondent, the Attorney General for Antigua and Barbuda, resists this appeal, on the ground that there is no basis for departing from the findings in the courts below that Mr Oliveira's application was handled rationally and within a reasonable time and thus lawfully. The essential issue is whether Mr Oliveira's complaint or the Attorney General's response is correct.
At first instance, by his judgment dated 12 October 2010 Justice David Harris rejected Mr Oliveira's claim. He held that although the circumstances of the case "come perilously close to being a fetter on the claimant's rights" (at para 61), ultimately there was "insufficient evidence to support the claimant's contention that the period between the application for registration and the interview is unnecessarily long and unreasonable …" (para 66). On appeal, the Court of Appeal by their judgment dated 10 March 2014 upheld that judgment. They said that a "delay of nineteen months between application and possible registration … may not, in the circumstances, be inordinate, even if it came—in the language of the trial judge—'perilously close to being a fetter on the [appellant's] rights'" (at para 27).
Mr Oliveira's attempts to be registered as a citizen of Antigua and Barbuda has had a rich history.
Mr Oliveira and his wife were married in Guyana on 21 October 1991 in the Hindu East Indian tradition. First he, and later she, migrated from Guyana to Antigua in 1993: he in May and she in December of that year. Except for brief absences he has resided in Antigua from that time. Whilst residing in Antigua, Mr Oliveira had been self-employed and had in the past obtained a work permit to work as a self-employed person. On 23 October 1997 Mr Oliveira and his wife were married in Antigua in accordance with the laws of Antigua and Barbuda.
On 30 September 2002 Mr Oliveira's wife was registered as a citizen of Antigua and Barbuda, on the basis that she was a Commonwealth citizen domiciled in Antigua and Barbuda and lawfully and ordinarily resident there for no less than seven years immediately preceding her application for registration as a citizen.
In the same year Mr Oliveira was convicted of the rape of a 14-year old girl, but his conviction was quashed on appeal. He was retried and convicted again, and his conviction was again quashed on appeal. In February 2007 the Director of Public Prosecutions entered a nolle prosequi. Mr Oliveira was then released from prison and deported in March 2007, but returned to Antigua in August 2007 and was given leave to remain for one month. He sought an extension of that leave, which was denied. The police retained his Guyanese passport. On 4 September 2007, Cabinet declared him a prohibited immigrant and issued instructions for his deportation, but he continued to live in Antigua.
It was at that point that he first filed a claim, on 23 July 2008, inter alia for a declaration that he was entitled to be registered as a citizen of Antigua and Barbuda by virtue of his marriage to his wife. He also disputed the deportation order and the impounding of his passport.
Judgment in that claim was given in the High Court by Blenman J on 26 May 2009. On the matter of deportation, the judge found that she could "place very little weight, if any, on the statement of the Immigration Officer in relation to the issue of national security" and found that the Cabinet decision to deport him was irrational (para 75). She also found that the passport had been unlawfully impounded. On the question of his entitlement to be registered as a citizen on the ground of his marriage, the court declared that he was entitled to apply for registration, although at that time he had not done so, since in fear of deportation and later in the absence of his passport he had not been able to do so. The judge said (at para 83 of that judgment):
"Accordingly, I do not share the view that the court is barred from making any declaration in relation to his entitlement in so far as he has not applied to be registered as a citizen of Antigua and Barbuda. There is no doubt in my mind that on the facts presented, read together with the law, there is nothing to prevent the court from declaring that he is entitled to apply to be registered as a citizen of Antigua and Barbuda. I so hold."
The judge had previously recorded the submission on Mr Oliveira's behalf that the facts of his subsisting marriage "which are not subject to argument" entitled Mr Oliveira upon application to registration as a citizen (at para 31). It appears that the judge acknowledged those facts, which are not in dispute in the current litigation either.
On 2 April 2009, even before that judgment was handed down, Mr Oliveira's passport was returned to him, and, as the agreed statement of facts on this appeal narrates, he "immediately" made use of its recovery to make his application for registration as a citizen pursuant to section 114(1)(b). That application was made in due form at the Passport Office. He received a receipt, dated simply "2009", for his completed application and for the papers which that application called for such as his passport, birth certificate and marriage certificate, and was directed to call on the Immigration Department on 1 May 2009. That date was written on the receipt: "Please … go to Immigration Dept 1–5–09". The witness statement of Ms Brenda Cornelius, Permanent Secretary of the Passport Office, confirms that Mr Oliveira's application was made "in or around April 2009".
It is to be assumed that on 1 May 2009 Mr Oliveira presented himself at the Immigration Department, which directed him to return to its Citizenship Division for an appointment on 11 November 2010, namely some 18 and half months later. He was also handed a form which instructed him to bring with him to that appointment 13 different types of documents, and, if his application for citizenship was by reason of marriage, as it was, in addition another four types of documents, namely his wife's passport, her birth certificate, her citizenship certificate, and their marriage certificate. Many, and perhaps all, of the first 13 categories of documents were of dubious relevance to a section 114(1)(b) application. As the judge at first instance stated (at para 27):
"Ms Simon on behalf of the defendant acknowledged that at least 15 items listed to be reviewed and investigated have no bearing on informing the state on the pertinent issue of the claimant's marriage status or the length of his marriage."
The judge went on to find (at para 59):
"several of the issues that the Immigration Department required to be resolved as part of the application and registration process appeared on the face of it to be irrelevant. It was open to the defendant to show the court the relevance of those considerations that it has imposed upon itself. It has in my view failed to do so."
There is some dispute as to whether Mr Oliveira called at the Immigration Department, as he had been directed, on 1 May 2009 or, as subsequently the witness statement dated 12 February 2010 of Ms Juliet Simon, the Supervisor of Temporary Residence at the Immigration Department, was to say: "In or around late of May or early June of 2009". There is no support for that timing, however. When cross-examined in these proceedings, Mr Oliveira was not...
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