Chief Justice's ruling questions 'opaque' and 'arbitrary' permanent residence policy

Cites ‘miscarriage of justice’ by Immigration Appeals Tribunal

The permanent residence applications of two workers – one of which was filed in 2006 – will be sent back to the Cayman Islands Immigration Appeals Tribunal for reconsideration following a ruling on Friday by Chief Justice Anthony Smellie. 

Justice Smellie concluded in the cases of both long-term residents, one a Jamaican and the other a Canadian, that the Immigration Appeals Tribunal’s decisions denying their permanent residence appeals were substantially wrong and a “miscarriage of justice.” 

Moreover, the chief justice’s lengthy commentary on the permanent residence application of one of the workers, Michelle Hutchinson-Green, called into question some of the factors used to determine points awarded to PR applicants. 

Justice Smellie concluded there are “immediate and obvious concerns” about the current two-tiered system for awarding permanent residence applicants a total of 15 points for their occupation and another 15 points if their job is considered a “priority occupation” according to regulations attached to the Immigration Law. 

“It is difficult to imagine a policy that could be more opaque, uncertain and prone to arbitrariness than one by which points are to be allocated to occupations based upon merely subjective assessments of their importance in the context of the local economy,” the chief justice wrote in his 40-page judgment. 

The judgment also served to clarify a significant point of contention in immigration appeals cases during which the legislation is amended – often more than once – before an applicant’s appeal is heard. 

Justice Smellie essentially ruled that applicants cannot be disadvantaged by the newly amended law if they applied under an earlier version of the Immigration Law. Basically, the law the person applied under should be the one used to determine his or her appeal. 

Appeals cases 

The issue in the cases decided Friday was that both Ms. Hutchinson-Green and Alisha Racz had what amounted to arbitrary appeals rulings against them by the Immigration Appeals Tribunal. 

In both cases, the women’s permanent residence applications were denied by the Caymanian Status and Permanent Residency Board. Their cases were appealed to the tribunal, which in both cases increased the number of points awarded to the applicants in some categories. However, the appeals board inexplicably reduced points awarded in other categories below what the immigration board initially had ruled. 

In Ms. Hutchinson-Green’s case, points were deducted from her occupation, even though her job had not changed; her skills, though she had engaged in additional training during the period of her appeal; and her salary, even though her pay had increased during the period. 

In addition, some of the materials used by the Immigration Appeals Tribunal to judge Ms. Hutchinson-Green’s application were not included in the law or regulations and appeared to be “policy documents” created by the board, Justice Smellie wrote. These “policy documents” were never shown to the applicant at the time and she was never given a chance to respond to them, Ms. Hutchinson-Green’s attorney Robin McMillan said. 

In Ms. Racz’s case, points were reduced for her occupation and salary in a manner which Mr. McMillan said “created the appearance of bias” in the appeals tribunal’s deliberations. 

Also noted in the chief justice’s ruling was what he described as “unconscionably long delays” in hearing one of the cases. Ms. Hutchinson-Green’s PR application was submitted in November 2006 and wasn’t finally rejected by the appeals tribunal until October 2013. During that period, the Immigration Law was amended more than 10 times, the judgment stated. 

Judgment 

Justice Smellie ruled that in both cases the Immigration Appeals Tribunal “impeded the course of justice” by using materials to judge the permanent residence applications without allowing either applicant to speak to that material. 

The tribunal also failed to show the applicants, or even the court, how it had used those materials in judging the applications, so the court could not determine the legal “reasonableness” of the appointed body’s decision-making. 

This led Justice Smellie to declare the appeals decisions “irrational” under section 19 of the Cayman Islands Constitution Order, which states that all decisions of public bodies must be rational, proportionate, legal and procedurally fair. 

Justice Smellie also ordered that the government pay costs for the applicants’ attorneys. 

Chief Justice Smellie

Chief Justice Smellie
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  1. On occasions we often find ourselves faced with questions on the rulings of appointed body’s decision making; and wonder if the wheels of justice are spinning in the right way.
    The old way of political appointments need to be done away with; Where people were appointed to boards just because they supported and voted for a particular party; not having the slightest idea what being a representative of that particular board required. These days governing bodies need to realize that we have a constitutional Bible to guide us in these decision makings, and unless we study it we will, have "off the peg" decision-making. People appointed should be juried and have some knowledge of the boards they are required to serve on, after-all beside just being the right man for the job let us consider the best man for the job.

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  2. With the future of the financial and tourism sectors not looking so bright the larger question is why we need significantly more permanent residents. A failure to plan is a plan to fail and we need to be looking at the future indicators for tourism and finance and setting the appropriate limits on permanent residents.

    While I know that there will be a lot of people that will give this comment a thumbs-down because of their own hatred and bias the realities are what they are and there is no amount of negative feedback that can change the facts.

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  3. In the UK all work like this was handed over to HMCTS (HM Courts and Tribunals Service) years ago. It then became an integral part of the judicial system with District Judges normally heading the appeal panels. That move was almost certainly forced on HMG by concerns that the old system of lay tribunals breached ECHR Article 6. The lay tribunals in the UK had turned into a bit of a joke anyway with all sorts of fruit loops sitting on them pursuing their own agendas.

    If you think this decision was damning wait until people with EU passports start to go down a similar road but factoring in the human rights issues.

    The problem I see now is that, having made a complete mess of it, CIG has effectively handed over the PR process to lawyers and the courts. I would say this is an expensive, messy can of worms opening up here.

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  4. I have a question. If the Judge personally knows someone that comes to him for a case should the Judge remove him or herself from the case they are hearing? Would this be a conflict of interest?

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  5. Anyone want to answer Mack Boland’S question? No one knows your point of view if you won’t express it. There are no right or wrong answers, just opinions.

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  6. @ rod bodden The answer is yes, they have to recuse themselves if there is any conflict on interest like that and there are recent instances of this happening in the court system. However, that has rarely been the case on any of the appointed boards created outside the judiciary by CIG. In fact based on some reports board members ruling on matters in which they have a personal interest seems to be the rule rather than the exception. That is why using panels of lay members is an unsatisfactory way of deciding appeals and other matters of law.

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  7. @L. Bell:

    There is a reason why they are happy to give my comment a thumbs-down but don’t want to participate in the discussion. At the core of issue are People that could care less about anything but their own immediate desires. They don’t have any valid position so the only thing they can do to express their hate is to give my comment a thumbs-down.

    This is the nature of man so it should not come as a surprise to anyone.

    What they have demonstrated is that they are definitely the type of people that would not be of any long-term benefit to local community.

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  8. @Mack Boland
    I would not characterize all thumbdowners (a new word!!) as haters. Just people with different opinions which is normal. So lighten up.
    I do agree with you, may be for different reasons, that Grand Cayman don’t need a population increase. Existing infrastructure can’t support the increase,quality of life is already going down. I support a "boutique" vs. "walmart" approach to granting PR status. But super rich will demand value, which is going down with overcrowding, overdeveloping and other overs.. Preserve this island’s natural beauty approach will make it unique. But how we can speak about beauty with cancerous monster right in the middle of the prime area.
    Besides what are the benefits of PR status? Unless one is from philippines, Greece or Ukraine.

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