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.