Complaint filed in refugee case

Seven years later, Afghans’ fate uncertain

Nek Nazary came to the Cayman Islands as an illegal immigrant in 2000, fleeing the Taliban regime in Afghanistan with two fellow countrymen, Ali Yusufi and Reza Hussaini.

Since then the three men’s time in Cayman has included two stints in custody with no charges ever being filed against them and a lengthy back-and-forth over whether they should be granted refugee status, which ended presumably in December 2006 when they were given exceptional leave to remain here by Chief Immigration Officer Franz Manderson.

The Cayman Islands government spent an estimated $250,000 to feed and house the men in the six years their immigration status prevented them from working here.

But the matter is not closed.

On Wednesday, a complaint in the case was filed with the Office of the Complaints Commissioner. In it, Mr. Nazary said the government has never officially ruled on an application for political asylum he and the other two Afghan men made in November 2004.

‘We have a pending application for political asylum,’ Mr. Nazary said in an interview Wednesday. ‘The government – they say that they have denied our application. But they haven’t given us a formal rejection of the application.’

In an email response to Caymanian Compass questions, Mr. Manderson stated the Afghan’s application for asylum was refused in 2004.

‘They obviously have concluded in their minds, but they haven’t given us anything,’ Mr. Nazary said. ‘I’ve told them on several occasions – if (the application) wasn’t (approved) I could appeal it and get the process going. But they didn’t refuse it at any point, neither verbally nor anything written.’

Under Cayman Islands law, the Afghans are entitled to appeal the ruling on their status to the Immigration Appeals Tribunal. But Mr. Nazary claimed the absence of that formal ruling makes it impossible to take the case any further, essentially denying the three men their right of appeal.

Complaints Commissioner John Epp confirmed Wednesday that a complaint had been filed in the case, which his office had issued a report on just last year.

That report stated the Immigration Appeals Tribunal had, in 2003, given the Afghan men refugee status; overturning a decision made by the then-Chief Immigration Officer in 2001. But Chief Secretary George McCarthy said the legal department had a different interpretation of the appeals board ruling.

‘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,’ Mr. McCarthy said during a statement in Legislative Assembly back in December. (see Compass, 22 December, 2006)

The government appealed the immigration tribunal’s ruling to the Grand Court, but Mr. Epp said that appeal was eventually abandoned.

One of the Afghan men then applied for asylum in December 2003, followed by the other two in January 2004. Those applications were rejected on the advice of the Solicitor-General, according to Mr. McCarthy.

In August 2004, the then-Chief Immigration Officer decided that the men should be repatriated to Afghanistan as soon as possible. But that plan was scuttled because of on-going violence there and the general unfeasibility of returning the men to their home country.

According to Mr. Nazary, he and his countrymen were invited by the government to reapply for asylum. He said they did so on 4 November, 2004.

Three years later, he’s still waiting.

‘I’m hoping that they simply give us political asylum,’ Mr. Nazary said. ‘Appealing, you know, those things take a lot of time. It’s been seven years of it.

‘Right now, the only home that I have is Cayman.’

The Afghans’ current status, exceptional leave to remain, allows them to obtain a work permit and stay in Cayman. But that status can be revoked at any time by the Chief Immigration Officer if the situation in their home country improves.

Also, it’s possible the status could cause the men problems getting travel visas if they chose to go anywhere else. Mr. McCarthy has said the three have been given Afghan passports by that country’s consulate in New York.

‘Political asylum would be much more stable status than exceptional leave to remain,’ Mr. Nazary said.

Both Mr. McCarthy and Mr. Manderson have clearly stated on numerous occasions that there is no evidence tying the three men to any terrorist organisations or terrorist activities. Background checks have been performed by both UK and US intelligence services.

‘We have undertaken extensive background checks on these individuals and there is absolutely nothing indicating they are anything but legitimate refugees fleeing an oppressive regime,’ Mr. Manderson told the Legislative Assembly in October 2006.

In his special report to the LA last year, Mr. Epp stated Mr. Manderson had been ‘under political pressure to ensure the departure of Mr. NN (referring to Nek Nazary) from these islands which is inappropriate.’

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