Appeals tribunal drowning in rollover

Cayman’s Immigration Appeals Tribunal is struggling with a backlog of more than 1,600 cases – a few of which date from 2004 – as it tries to wade through various work permit, permanent residence and Caymanian status applications.

According to statistics revealed under the Freedom of Information Law, the tribunal is reviewing 928 appeals of work permit denials, 740 appeals of denials in cases involving permanent residence applications, and six cases where Caymanian status was denied.

Work permits are required for all foreign workers living in Cayman. Permanent residence allows a foreign national the right to remain in Cayman for the rest of their lives, and Caymanian status is the penultimate step toward citizenship in the Islands.

Applicants for all three of those permitted statuses have the right to appeal decisions of the various boards that make them 
to the tribunal.

So, what’s the problem? According to the chair of the appeals tribunal, it started with the introduction of Cayman’s seven-year term limit on residency for foreign workers – known locally as the 
rollover policy.

“The number of appeals [has] significantly escalated since the introduction of the legislation introducing the rollover policy and the law in this area needs to be modernised to deal with procedural changes and legislative peculiarities to ensure justice for all parties,” said Immigration Appeals Tribunal chairperson Sophia Harris.

The first iteration of the term limit, which took effect in January 2004, allowed any foreign workers who had resided in Cayman for at least five years to apply for permanent resident status.

Normally, a foreigner would have to remain in Cayman for eight years in order to apply for that status.

Appeals tribunal statistics show a sharp jump in the work permit appeals backlog beginning in 2006 and in 2007 the same thing happened with permanent residence cases.

The tribunal now has more than 768 appeals of work permit denials and more than 683 appeals of denied permanent resident status that were filed between 2008 and 2010.

There are more than 100 work permit appeals and more than 40 permanent residence appeals pending from 2007 or earlier. Three of those appeals date from 2004.

At this point, Mrs. Harris admits the appeals tribunal is totally overwhelmed and is struggling to apply the rules of an old system to the new order.

“At the moment some are of the opinion that they need only indicate they wish to appeal and demand a hearing without setting out detailed and comprehensible reasons for the grounds of appeal in writing,” she said. “This could, of course, lead to an abuse of the process and the excessive backlog of appeals.”

Mrs. Harris said the law doesn’t require an application to prove they have grounds for an appeal, similar to a preliminary inquiry before a court of law.

Also, the appeals tribunal can access information that is available to the immigration board, which initially heard the case, however they don’t always get to hear both sides when considering an appeal. “We have not had the benefit of the board sending a representative to defend its actions or produce a counter argument at hearings and this is particularly unfortunate where the appellant might have counsel present to make his case,’ Mrs. Harris said. “The fact that the boards are inundated, much like the tribunal, would probably explain why they do not defend [themselves] or attend hearings.”

Another anomaly is that key employee applicants who are denied do not have the same right of appeal to the tribunal as everyone else and must take their cases to the Grand Court if they wish to appeal. The appeals tribunal couldn’t say why that was the case, Mrs. Harris said.

Mrs. Harris said the tribunal has made certain recommendations about changing the law to legislators.