The perils of 
bureaucratic discretion

One of the primary aims of the overhaul of the Cayman Islands Immigration Law, we are told, is to remove board members’ personal opinions, biases and predilections from the work permit approval process.

Nevertheless, we believe the new law relies too heavily on the insidious idea of “discretion” that underpins – and threatens to undermine – far too much of Cayman’s legal framework.

Take, for example, a small but significant change to a situation known as “working by operation of law.”

Currently, anyone who applies for permanent residence is automatically allowed to remain in Cayman while their application is being processed, even if it takes so long that they are technically overstaying their term limit in the islands. The new law does away with the status quo. Now, an applicant for residency will have to seek permission from Chief Immigration Officer Linda Evans to overstay the term limit, even if it’s because of neglect or delay on the part of the Immigration Department or appointed immigration boards. In other words, it will now depend on Ms Evans’s discretion whether a person can remain in Cayman while their residency application is being determined, or if they will be forced to leave the island for an indeterminate amount of time.

Given the implications to applicants’ jobs, homes and families, as well as possible effects on employers and landlords, the new authority given to the chief immigration officer is formidable.

Ms Evans says she can’t think of a reason why someone working legally in Cayman would ever be denied such an application. Her statement would be more reassuring, however, if it didn’t echo countless previous declarations throughout history by public officials who didn’t foresee a use for a power until after it had been granted.

Further, if the person who is given the new discretionary power can’t contemplate ever using it, then why is the new power being created? 

Let us be clear. We’re not impugning Ms Evans’s professional capabilities or conduct. Both appear to be beyond reproach. We also recognize that individual discretion does play a vital role in the public service, provided that discretion is explicitly defined and appropriately bounded. Judges, for example, require discretion when determining sentences because they often address complex matters of nuance and circumstance. Police officers also must be free to make real-time decisions when life and property are at risk. However, especially in areas of administrative law (such as immigration, planning and liquor licensing), the edict of “who you fa” all too often determines what answers you get from Cayman’s government and how much you have to pay for them. Cayman’s bureaucracy is full of officials, civil servants, boards and committees who exercise their discretion in the absence of, or despite, written rules and public regulations.

Discretion leaves room for injustice, creates the opportunity for corruption and cronyism and provides a ready defense against subsequent accountability.

In regard to Cayman’s immigration reform generally, the Progressives’ “medium-term goal” to minimize the involvement of appointed boards in work permit approvals is commendable.

Nevertheless, looking over the new law, we couldn’t help but notice the final component to determine whether an applicant for permanent residency obtains a passing grade of 110 out of 215 points.

Applicants can lose up to “unlimited” points for “Other mitigating factors” (including mistreatment of co-workers), rendering null and void factors such as community engagement, local investment and familial ties. That determination will be made by the immigration board or chief immigration officer, naturally, at their discretion.

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