Afghans get leave to stay

Chief Immigration Officer Franz Manderson granted exceptional leave to remain in the Cayman Islands to three Afghanistan citizens who have been here for more than six years with un-landed immigrant status.

The decision, however, was not what was recommended in a report of the Office of the Complaints Commissioner tabled in the Legislative Assembly Wednesday.

Prior to that report’s tabling, Chief Secretary George McCarthy read a statement to the Members of the Legislative Assembly announcing the Chief Immigration Officer’s decision and explaining the reasons for it.

Mr. McCarthy said the action not only ended a long period of uncertainty for the Afghan men, it relieved the Cayman Islands Government from the financial burden of supporting the three Afghans. Mr. McCarthy said that support has cost the government in the region of CI$250,000 to date.

‘Exceptional leave to remain is a more settled immigration status, meaning that the individuals would be free to accept gainful employment – subject to being granted a work permit – thus becoming self-sufficient,’ Mr McCarthy said.

‘The three have in fact given an undertaking that if granted exceptional leave to remain, they would not seek any further financial support within three months of the grant.’

Mr. McCarthy said the Afghan men’s new immigration status would allow them to leave the island on their Afghan passports if they want to.

‘At present, no other country would grant them a visa since their present immigration status in the Cayman Islands does not guarantee that they would be granted re-entry upon return.’

While exceptional leave to remain is a more settled immigration status, it can be revoked at any stage if the political situation in Afghanistan improves to the extent that the three men can be repatriated.

Exceptional leave to remain also falls short of the men being granted Refugee Status, which is what had been recommended for the men by the Office of the Complaints Commissioner.

Mr. McCarthy’s statement came just moments before the OCC’s Special Report to the Legislative Assembly concerning the immigration status of one of the Afghan men was laid in the House by Cabinet Minister Alden McLaughlin.

The OCC’s report was the product of an investigation that stemmed from a complaint made 2 November 2005 by one of the Afghan men. The report states that the complaint of the man – who is only referred to as ‘Mr. NN’ – was that ‘he was granted Refugee Status by the Immigration Appeal Tribunal, however the Chief Immigration Officer failed to implement the order…’

The report found that the complaint was well founded. On 9 March, 2006, The OCC made several recommendations to the Chief Immigration Officer, which included granting Mr. NN Refugee Status, which would have given him the right to remain indefinitely in the Cayman Islands and to work here.

The OCC prepared the Special Report to the Legislative Assembly only after the Chief Immigration Officer did not implement the recommendations on a timely basis.

Mr. McCarthy’s statement in the House added background to the circumstances surrounding the three Afghan men, who he said were detained on 22 August 2000 at the house of a local resident.

‘They claimed that they had travelled from Turkey by boat and that they were intending to reach Canada where they proposed to apply for refugee status,’ Mr. McCarthy said. ‘Investigations by the Immigration Department gave strong reason to believe that they had in fact arrived on 20 August 2000 by air from Cuba and had entered the territory using counterfeit Pakistani passports.’

The Afghan men eventually applied for refugee status in the Cayman Islands, and were kept in custody while their applications were being processed. Mr. McCarthy said that in June 2001, the Grand Court ruled that their custody was unlawful, even though it accepted the view that the three men had probably entered the country illegally posing as Pakistani tourists.

On 1 October 2001, the Chief Immigration Officer refused the three men’s application for refugee status, but granted them temporary leave to remain so they could exercise their right of appeal to the Immigration Appeals Tribunal.

The IAT gave its decision in November 2003. Mr. McCarthy’s statement in the House seemed to view the IAT’s decision differently than the OCC did.

‘The Tribunal determined, among other things, that the appellants were free to make applications for refugee status, which if received must be properly considered by the Chief Immigration Officer in accordance with the criteria set out under the Immigration Law.’

In any case, the government appealed the decision of the IAT to the Grand Court.

Complaints Commissioner John Epp pointed out that what Mr. McCarthy did not say in his statement, however, was that the Government’s appeal was eventually abandoned.

One of the Afghan men submitted an application for political asylum in December 2003, while the other two submitted applications of political asylum in January 2004.

‘Acting on the advice of the Solicitor-General, the then Chief Immigration Officer rejected the applications on the ground that there was no basis upon which to make an application for political asylum under the Immigration Law…’ Mr. McCarthy said.

Although the Chief Immigration Officer decided in August 2004 that the three men should be repatriated as soon as possible, he was unable to do so.

‘This proposal foundered… due to insurmountable difficulties over the logistical arrangements for transporting them from here to Kabul, coupled with the added complication of needing the permission of a number of governments whose countries would have to be transited,’ Mr. McCarthy said. ‘Additionally, the Chief Immigration Officer was informed that the UK was not repatriating Afghans to the Ghazni province in Afghanistan due to the prevailing situation there at the time.’

The OCC acknowledged in its report that the Chief Immigration Officer had the right to formally review Mr. NN’s status at any point in the future and to return him to Afghanistan if hostilities – as defined by United Nations High Commissioner for Refugees protocol – ceased in Afghanistan.

‘The potential formal review, while not specifically limited in time by the IAT, must occur within a reasonable period of time as a matter of natural justice and fairness,’ OCC’s report stated. ‘That period of time was, in the opinion of the Office of the Complaints Commissioner, by September 2005, and at the absolute latest, March 2006.

‘Since it did not occur, the ability to review the conditions in Afghanistan and potentially find it safe to send Mr. NN back to Afghanistan has been lost.’

The Chief Immigration Officer apparently conducted the review recently anyway, but made the decision not to send any of the men back to Afghanistan because of the worsening situation in that country. Mr. McCarthy said that situation has significantly deteriorated in recent months, ‘effectively eliminating any possibility of repatriating the three Afghan for the foreseeable future’.

Mr. McCarthy said there was absolutely no evidence to support the speculation that the Afghan men had been or are involved in any terrorist organisation.

‘Their identity has been confirmed with the Afghan Consulate in New York – who subsequently granted them Afghan passports – and all checks conducted by US and UK law enforcement agencies have been negative.’

Mr. Manderson said the OCC’s report was not the reason he made the decision.

‘He was pressing us for a decision, so it was certainly something in my mind,’ he said. ‘But I wasn’t going to be pressured with something like this unless I felt I had covered all my bases and felt satisfied [the Afghan men] couldn’t be sent back.’

In the end, it was the continuing situation in Afghanistan that swayed Mr. Manderson the most, he said.

‘You don’t want to be sending somebody back to a situation like that. It’s just not right.’

Cabinet Minister Alden McLaughlin appeared to think the matter resolved when he tabled the OCC’s report.

‘In view of [Mr. McCarthy’s] statement, I believe the issues raised by the Complaints Commissioner have all been successfully addressed,’ he said.

Complaints Commissioner John Epp did not agree.

‘It appears that our recommendation was not followed in full and this is a cause for concern,’ Mr. Epp said in a written statement on Thursday. ‘The rules of natural justice and fairness dictate that Mr. NN and those in a similar position be granted now full asylum rights – that is the unconditional and irrevocable right to live here.’

Mr. Epp said there was still a remedy for the decision.

‘I invite Members of the Legislative Assembly to debate my report and to fully explore the issues with regard to the steps taken by the Chief Immigration Officer so that a full and informed debate can occur.’ he said.

The OCC’s report is also critical of the Government for trying to sway the Chief Immigration Officer’s decision.

‘The CIO has been under political pressure to ensure the departure of Mr. NN from these Islands, which is inappropriate,’ the report states.

The pressure apparently came from a member of the Finance Committee during a meeting held 2 October 2006, in which the CIO was called upon to ‘do whatever it takes to expedite the departure’ of three Afghan men.

‘The OCC cautions against interference by others in the merits of a decision which rests in the office of the Chief Immigration Officer and which procedure is provided for in the UNHCR Manual,’ the OCC’s report states.

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