A wide-ranging review of Cayman Islands policies on dealing with Cuban migrants recommends that authorities be allowed to take those immigrants into custody against their wishes in certain situations.
Among the findings made in the Human Rights Committee report is a recommendation that authorities be required to rescue and bring ashore all those migrants found in distress or on non-seaworthy vessels within Caymanian waters.
The committee’s review suggests those migrants should be taken into custody even if they do not want assistance and force is required to bring them in.
Only if the craft is determined to be seaworthy would the migrants be allowed to go on.
‘The HRC concluded that there was a moral, if not legal justification for humanitarian intervention, which at times should be exercised even if this went against the wishes of the Cuban migrants,’ the report states.
The review noted assisting migrants in any onward journey is ‘not a viable option for the Cayman Islands government.’
The HRC report also suggests the government implement a more comprehensive process to help determine whether Cuban migrants qualify as political refugees under the UN convention. That issue will be reported in more detail in Friday’s edition of the Caymanian Compass.
The 25 findings contained in the conclusion of the committee’s report are merely recommendations and do not require the government to take any action. However, the report has been much anticipated as problems with Cuban migrants here in Cayman have gained frequent media exposure over the last several months.
Under current guidelines, the Cayman Islands government does not provide any assistance to Cuban migrants who show up in vessels off shore. However, those migrants are given the option of continuing on with their journey even if the water craft they travel in is clearly not seaworthy.
According to the report: ‘The vessels used by Cuban migrants, even if repaired and made notionally seaworthy, are either makeshift or extremely old and are still at risk during what all are agreed is an extremely dangerous journey.
‘If a vessel, which has been patched up with the assistance of the Cayman Islands government was to then encounter difficulties, which in turn led to loss of lives, it could be argued that the Caymanian authorities are implicated in and in part responsible for, such an unfortunate outcome.’
Outside Cayman Islands waters, defined in the Port Authority Law (1999 Revision) as outside ’12 miles of the coast at low tide,’ the committee suggests authorities should only become involved if people on the water craft wish to be rescued.
The HRC report noted the dilemma of taking Cuban migrants into custody against their will would be eased if the International Convention on Maritime Search and Rescue was extended to the Cayman Islands. The committee urged both Caymanian and UK officials to establish a resolution in international law for this issue.
Enforcement burden
Requiring Caymanian authorities to take all migrants into custody once they show up off the coast in non-seaworthy craft could place a significant burden on Cayman law enforcement, according to the report.
For instance, since mid-May three separate groups of Cuban migrants who have arrived in Cayman’s waters have been allowed to continue on their journey.
On 13 May a boat carrying 11 migrants was spotted near East End. It departed without assistance from Immigration officials.
Less than a week later a group of 22 Cubans continued on their journey after arriving in Cayman Brac. On 12 June another group of 19 migrants arrived in the Brac and were allowed to go on. Immigration officers reported their boat was in good condition.
If all three of those groups were forced into custody, 52 more people would now be housed at the Immigration Detention Centre in George Town bringing the centre’s total population to more than 70 migrants.
The HRC report said that centre can hold a maximum of about 50 people. The facility receives some 300 migrants over the course of an average year, but the population rises and falls as the Cubans are repatriated.
According to the committee’s review: ‘If all boats containing Cuban migrants that were deemed to be in distress or unseaworthy were processed in accordance with the policy suggested above….this would result in an increase, although not necessarily one of unmanageable proportions.
‘Whilst the short term effect of the change in policy proposed might result in the increase in persons detained….there is every possibility that once the new policy became more widely disseminated that the number of persons attempting to leave Cuba via the route that would take them in the vicinity of the Cayman Islands may actually decline.’
The Cayman Islands Immigration Department has long maintained, the greater their number, the more difficult it is to contain migrants at the detention centre.
A Memorandum of Understanding concerning migrant repatriation has been in existence between Cuba and Cayman since 1999.
Repatriation is supposed to occur within 21 days. In practice, that process can often be delayed for months and Cayman’s Chief Immigration Officer Franz Manderson has previously said the country is essentially at the mercy of the Cuban government bureaucracy on repatriation issues.
The HRC warned keeping Cuban migrants in detention too long could potentially lead to human rights violations, although at this point the committee does not believe there have been any such violations.
‘It is…not permissible to simply blame any delay on the Cuban government, nor can the MoU…operate as a justification for failing to comply with human rights obligations,’ the report stated.
Committee staff inspected the Immigration Detention Centre in April and found living conditions, food, medical care, and access to recreation generally acceptable. However, the HRC did note that more space to house Cuban migrants would likely be needed if Cayman accepted its advice on forcibly detaining migrants.
Staffers learned during the course of their investigation that an independent professional committee apparently has responsibility for inspecting centre facilities and reporting their status. The names of that professional committee are not publicly available.
‘(The HRC) does not see any reason why the official oversight of this facility could not be more open and transparent,’ the report opined.
The committee is still seeking a response from the Immigration Department as to how oversight of the centre is being handled.
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