Judicial 'slapdown': Government better pay attention

Did you hear that? It might sound like the fall of a gavel — but if you listen more closely, you may recognize the noise of floodgates opening.

We refer to the judicial decision of Cayman Islands Chief Justice Anthony Smellie, who, when ruling in favor of two women whose applications for permanent residence had been denied, used the following terms in reference to our territory’s immigration process: “miscarriage of justice,” “immediate and obvious concerns,” “opaque, uncertain and prone to arbitrariness,” “appearance of bias,” “unconscionably long delays,” “impeded the course of justice” and “irrational” under the Constitution.

The deluge to which we allude relates to a flood of potential court actions that could be filed by any number of Caymanians, residents or foreigners who have suffered unjustly because of capricious decisions made by politically appointed boards in Cayman, across the spectrum of administrative law.

The situation of the two permanent residence (PR) applicants described in Justice Smellie’s ruling is a case study, turned test case, of how our government operated in violation of basic rights (and basic dignity), not only by failing to follow the law, but more fundamentally through the unfairness of the law itself.

In brief, two women, one from Canada and one from Jamaica, made separate applications for PR in Cayman. They were denied by the Caymanian Status and Permanent Residence Board, and they appealed to the Immigration Appeals Tribunal. There, the tribunal “rescored” their applications, awarding more points in some areas and subtracting points in others, and in one case employing board-created “policy documents” found neither in the relevant law nor regulations. The tribunal rejected both appeals.

In one case, the woman submitted her PR application to the board in November 2006 but wasn’t rejected by the tribunal until seven years later, October 2013.

Of great potential significance is Justice Smellie’s apparent determination that the version of the law under which a person applies for PR should be the one under which their application is decided, no matter how long that process takes. In the above instance, the Immigration Law had been amended more than 10 times during the long years the woman waited for resolution.

Remember that these women had to (and still must) live every day in the knowledge that their PR application is in limbo, and, before Justice Smellie’s ruling, with the uncertainty that their considerable costs of pursuing justice were going to be reimbursed.

It is, perhaps, coincidental that the case we are discussing involves delayed-and-denied applications for permanent residence. Keep in mind that since Cayman’s new Immigration Law took effect in October 2013, not one new PR application has been adjudicated under the new law.

Now, (putting aside economic considerations, which demand a system that is eminently attractive to outside investment and as open as possible to immigration) this Editorial Board is of the opinion that Cayman has almost every right in the world to delineate immigration policies as strictly and specifically as is desired, so long as they are transparent and consistent.

The caveat is this: Cayman does not have the right to create a set of guidelines, particularly on something as important as PR, that are incompatible with universal principles recognized by the United Kingdom (and relevant European courts). Cayman is a derivative of that network; our legal system is founded on common law; and we must adhere to the concept that our learned members of the judicial bench might cite as “natural justice.”

That applies to all legislation, not just immigration, and throughout the bureaucracy, including Cayman’s myriad of appointed boards, which routinely issue decisions that could quite easily become the basis for successful legal action.

We would venture to guess that there are hundreds, if not thousands, of instances of injustice that align with the fundamental framework outlined in the ruling by Justice Smellie, and that could potentially be subject to the same sort of scrutiny.



  1. No surprise that there’s been no new applications. I am sure people realize that it’s just not worth it unless you are Super Rich and are seeking to shed the tax burden of your home country.

    People are starting to realize that Expat life in Cayman is just a temporary thing with no future so they come for the money and send it home. For those that like to stay here but don’t need to work like wealthy retires or those that are financially comfortable but are not multi millionaires it’ll never be anything more that an extended vacation, so any purchases of property will reflect that reality with their allegiances never actually being to Cayman.

    This is to be expected when the immigration policies are clearly meant to keep outsides from gaining similar civil rights as Caymanians, which is actually Cayman’s right, however every cause has an effect.

    What it comes down to is that if you don’t really want people to come and stay, you can’t expect them to contribute on any long term basis or make any long term investments, because they know they will be kicked out eventually.

  2. I wish I could agree with all of your comments Michael, however I do not think it is all that bad because there are many Foreigners who have made Cayman their home and enjoying every moment of it; however I will go on to say these are mostly old-timers, because back then people who came to Cayman were different in every way. They came for a better life and they got it. I am an old-timer, so I have had the oppportunity of knowing the then and the now population. Back then people came here and bought properties, married and raised families and have good businesses; but something went wrong when Hurricane Ivan came. Everybody and everything changed; even those from here and those who were not from here, but it was not for the better, it was all for the worse. People don’t just get along anymore like they used to, and everyone including Caymanians just have one goal in mind, and that is to make money. It never used to be so. It was sharing community spirit before. Many of us may think that the immigration is being harsh in deciding who stay and who go, but for your safety and mine you may one day come to appreciate that you can walk on the streets of George Town and seven mile beach, without squeezing through thousands of people on the streets like it is in other over populated countries. Trust me it is better we don’t wish for that.

  3. Michael, Twyla:
    You are both right.
    As an old timer who moved here over 30 years ago I did feel welcome. There was none of this "them vs. us" we see nowadays.
    There was no TV unless you rented a video tape of television showed in Miami the previous week, no internet or cell phones (of course) and it took 3 months for C and W to install a land line.
    There was a zillion mosquitoes too and it was impossible to eat outside in the evening.
    But we felt SAFE and life was WONDERFUL.
    It seems that many of the younger generation has been bought up to believe that life should be handed to them on a plate, no need to work hard. And if they can’t get a job it’s because some foreigner took it.
    Then it’s time (for some) to go on welfare or go thieving.
    While it is wonderful to pay no income taxes, much of the saving is eroded by a very high cost of living. Utilities being 3 times the cost in the States and groceries almost double.
    Let us hope that our education system can be improved and alternate income sources developed so we are not so reliant on off-shore finance.

  4. I actually do agree with Twyla that it’s not all that bad. It is what it is, I am sure there are plenty of people who came to Cayman for a better life and others that came for a better lifestyle. For the people that came here and bought properties, married and raised families and have good businesses. I am very happy for them however the fact remains that they are still consider outsiders or driftwood, no matter how much you do it seems the highest status you’ll ever get is to be called a Paper Caymanian.

    I do appreciate the fact that you can walk on the streets of George Town and seven mile beach, without squeezing through thousands of people on the streets like it is in other over populated countries, this is what attracts us here in the first place. When we were first exposed to Cayman and decided to purchase property and build a home for our retirement, we were full of dreams that we’d become a welcome part of the community. Unfortunately we eventually realized the whole CaymanKind thing of being welcomed with open arms is a fantasy.

    Don’t get me wrong we both love it here and I still feel it was good investment, but I do not expect to every be looked upon as anything more than just driftwood. As I said it is what it is and no one is forced to come here. So others that are here must also just accept it for what it is.

    The only issue I have is when certain groups of people try to act like it’s something that it’s not like you actually welcome or expect you to devote all your resources to Cayman when you will be asked to leave without hesitation if times get hard or you rub an immigration officer the wrong way.