Convicted non-Caymanians face immigration concerns
A criminal conviction could have led to Gary Bowlyn being recommended for deportation when he was sentenced to 18 months imprisonment last Friday.
Bowlyn, 37, is from Jamaica. He was on work permit when he assaulted a co-worker on a construction site (see separate story).
Before passing sentence, Justice Alexander Henderson heard arguments as to whether he should recommend that Bowlyn be deported after his sentence is served. After an adjournment to consider submissions, he said he would refrain from making any recommendation.
Defence attorney Ben Tonner had agreed there are various situations in which a person becomes deportable. He said one of them is being sentenced to imprisonment for not less than six months, as cited in the 2011 Immigration Law. But deportation is not automatic, he emphasised.
Deputy Director of Public Prosecutions Trevor Ward pointed to a case from the early 1990s in which Cayman’s Court of Appeal listed factors to be taken into account before a court recommends deportation. It said the court should consider whether the person’s continued presence is a detriment to the Cayman Islands; the seriousness of the offence and criminal record of the offender; the effect a deportation order would have on other people not before the court.
Mr. Tonner said Bowlyn did not want to go to prison and he did not want to go back to Jamaica, either. He said his client had formed a relationship with a woman here who was now pregnant with his child. He asked the judge to leave the question of deportation entirely in the hands of immigration officials.
Justice Henderson said it was not clear whether Bowlyn’s continued presence in the Cayman Islands would be a detriment to the territory. He said the Immigration Board would be in a better position to decide.
He agreed that Bowlyn had no previous convictions and this one was for an offence in the middle range of seriousness.
The judge inferred that a recommendation for deportation could have an adverse effect on his unborn child and the child’s mother. He indicated this was a consideration for not recommending deportation.
Justice Henderson highlighted another issue. He pointed to the Court of Appeal’s finding that a recommendation for deportation does constitute a sentence for the purposes of the Criminal Procedure Code. He questioned whether this would have the effect of reducing what would otherwise be an appropriate term of imprisonment. He said there was no authority on this point.
After considering the matter, he was satisfied that a recommendation for deportation should not have the effect of reducing a prison sentence.
He gave a hypothetical example: A Caymanian and a foreigner commit the same offence and are equally culpable, but receive different prison terms because the foreigner is recommended for deportation.
That would be perceived by the public as being unfair to the Caymanian, he said. If the recommendation for deportation were not carried out, it would be unfair because part of the foreigner’s sentence was not imposed.
Justice Henderson said any recommendation for deportation that he makes will not reduce any term of imprisonment he imposes.