Lawyers say judgment on PR appeals a game-changer
Although the Cayman Islands government has yet to say what it might do, if anything, as a result of Chief Justice Anthony Smellie’s blistering judgment issued on Aug. 28 concerning two Immigration Appeals Tribunal rulings, local attorneys think it will force major changes in how permanent residence applications are handled.
Nick Joseph, a partner at HSM Chambers – the firm that brought the action on behalf of the two appellants – said that while the judgment clarified Cayman Islands law in a number of respects, its effect has not been determined with any certainty.
“But it certainly seems that it will necessitate a sea-change in many aspects of the determination of matters before boards and tribunals in Cayman,” he said. “In particular, the expectations of heightened standards of scrutiny in considering any matter which might have a human rights element will mean that anything short of full disclosure of all relevant materials relied upon by a decision-maker in such a manner as would entitle an applicant to understand the basis on which they are assessed.”
Any failure to do so would likely face a successful challenge, he said.
The judgment dealt with two decisions made by the Immigration Appeals Tribunal with respect to permanent residence applications that had initially been rejected by the Caymanian Status and Permanent Residency Board. A key element in both cases was each statutory body, which are made up of appointees of the elected government, determined that the applicant did not have enough points under the points system specified in the second schedule of the Immigration Regulations under the Immigration Law. However, in both cases, the Immigration Appeals Tribunal had given more points in some categories, but fewer points for other categories for no apparent reason.
In addition, the Immigration Appeals Tribunal in both cases failed to notify the appellants of its intention of reducing points in some categories or to give the applicant the opportunity to respond.
For these and other reasons, the chief justice found the Immigration Appeals Tribunal breached the principles of natural justice and was unauthorized to make decisions it did. He therefore set aside both rulings for “substantial wrong and miscarriage of justice” and ordered the Tribunal to rehear the permanent residence applications “in accordance with law.” He also ordered costs be awarded to the applicants.
The ruling could lead to many more similar cases being filed.
Attorney Randall Martin, a partner at Dinner Martin Attorneys who specializes in immigration matters, said he expects additional judicial review cases to be filed if the Immigration Appeals Tribunal does not apply the decision to new – “de novo” – hearings where the initial determination occurred under the old points system.
“Those cases should be successful, based on [Chief Justice Smellie’s] judgment, which does not leave the government much room for argument,” he said. “However, the lack of cases in Grand Court has, in my opinion, never been due to the state of the law, but only due to the cost of litigation being beyond the means of those who have been treated badly. Therefore, if the Appeals Tribunal does not move quickly, I would not really expect a “flood” of applicants unless legal aid is made generally available for these cases. That could happen; the chief justice controls legal aid. The hope is that the Appeals Tribunal starts to hear all of the pending appeals quickly and in accordance with the judgment.”
Another critical point raised in the judgment concerns whether a “de novo” Immigration Appeals Tribunal hearings should be based on the system put in place in Nov. 2013, or the one when the original application was submitted, if it was submitted before that time.
“We now have a favorable answer on this,” Mr. Martin said. “The second question is, if the de novo hearing is based on the old system, what set of criteria/circumstances of the applicant will they apply – (a) at the time of their initial application was submitted; (b) the time the initial application was heard by the PR Board; or, (c) the time of their de novo hearing? While the recent judgment did seem to imply that it will hopefully be (a), this issue was not expressly addressed. If they are heard on (b) or (c) I could see more [judicial reviews] filed.”
One particular reason for this, Mr. Martin believes, is the length of time it takes for appeals, some of which are now as long as eight years.
“Some of these people on appeal … have had their circumstances suffer for various reasons, such as employers not wanting to hire them because of their uncertain immigration status or they have spent their savings or even sold their properties to cover legal fees and basic living expenses,” Mr. Martin said. “The delay in itself has been unreasonable.”
Furthermore, Mr. Martin believes there could be a “legitimate expectation” argument made that an application for permanent residence should be judged by the criteria in effect on the date he or she entered the Cayman Islands, not when the application is made.
“That argument is not an easy one, however,” he said. “The government authorities need to improve at providing reasonable prior notice to the public of the changes to the laws/regulations so that [prospective permanent residence applicants] at least have some time to plan accordingly.”
Mr. Martin said that if the government does not respond to the judgment and change the approach to permanent residence appeals, “each decision to apply the new system to an old system case at a de novo hearing should lead to a successful application for [judicial review] by the applicant with associated costs and, frankly, wasted court time. The issue has been decided.”
When asked Friday to comment on what the government might do in response to the judgment, the Premier’s Office referred to public comments made earlier last week by Ministry of Home Affairs Chief Officer Eric Bush, who said his office was “evaluating what, if any, recommendations should be made to the government” in response to Chief Justice Smellie’s ruling.
The Premier’s Office simply said in an emailed response, “Government will make its position known when it has taken advice and properly considered the matter.”