The outcome of a recent court ruling on an Immigration Appeals Tribunal case may make it more difficult for people to successfully appeal denials of permanent residence applications.
The ruling means anyone who sought permanent resident status in the Cayman Islands under the old Immigration Law and who is waiting to hear the outcome of that decision should hope the application is successful the first time around.
The case, which was decided by Acting Grand Court Judge Nova Hall in October, involved a woman who had been fighting the denial of her initial permanent residence application since 2008. The case proceeded through various stages over the last few years, ending in a challenge to the Grand Court heard late last year.
Judge Hall referred the matter back to the Immigration Appeals Tribunal for a re-hearing, but noted the following in her findings regarding the woman’s arguments to the court: “It is understood that the main grievance of the applicant is that, if the Immigration Appeals Tribunal had merely restored the lost 20 points to her application … she would have qualified for permanent residency.
“This concept of the manner in which the Immigration Appeals Tribunal operates is inaccurate.”
According to the Immigration Law [2013 Revision], the appeals tribunal hearing on the denial of an immigration application is considered to be a “re-hearing.” That means new evidence and changes in the applicant’s circumstances are allowed to be introduced.
“It was entirely appropriate that the tribunal apply the current laws when awarding points,” the judge said. “No promise had been made to the applicant that there would not be a re-hearing or that points would not be awarded pursuant to current guidelines.”
The Cayman Islands government last year significantly altered the process by which individuals apply for and can potentially gain permanent residence.
The previous system required applicants to earn at least 100 points based on a system in which they were judged on such things as the occupation they held, relevant skills and knowledge, their earnings, contributions to the community, Caymanian connections and a history and culture test, among other things.
The new permanent residency system requires applicants to gain at least 110 points and makes earning those points much more difficult, in some cases lowering the total points an applicant can be awarded in each category.
Someone who fails to obtain permanent residence on an application made under the 100-point system would likely find any appeal of the decision heard under the new 110-point system, according to Judge Nova Hall’s ruling.
The criteria for permanent residence points can now also be changed once a year by Cabinet members, as long as they obtain a ratifying vote from the Legislative Assembly.
The appeals process for applicants under the new system was also changed under the new legislation. The appeals are now conducted in written format over two stages and appellants no longer need to remain in the Cayman Islands while appeals are pending.
Previously, huge appeals backlogs were caused, partly by individuals who filed frivolous cases, allowing them to remain in the islands in some instances several years longer while their cases were decided.
In 2011, the Immigration Appeals Tribunal had a backlog of 1,600 cases, some which dated to 2004. According to statistics revealed under the Freedom of Information Law, the tribunal at the time was reviewing 928 appeals of work permit denials, 740 appeals of denials in cases involving permanent residence applications and six cases in which Caymanian status was denied.