The Cayman Islands government will provide a full response, making changes if and where necessary to its immigration regime in the wake of a recently released court ruling that was critical of several aspects of the permanent residence system, the premier said.
Premier Alden McLaughlin said Monday that government leaders were taking legal advice on what has become a complex issue, and he expects to make announcements in response to the ruling in the next few weeks.
“We are taking this issue very seriously,” Mr. McLaughlin said, declining to discuss specifics.
The issues identified in an Aug. 28 court judgment dealt with two major areas: First, the actions of the Immigration Appeals Tribunal in judging two cases where non-Caymanians had applied for permanent residence – the right to remain in the territory for the rest of their lives – in which the tribunal’s actions were determined to be a “miscarriage of justice.” Those applications were made under a former version of the Immigration Law.
The Immigration Appeals Tribunal was ordered to rehear the applications of the two workers, one of whom had applied for residency status in 2006.
The second matter involved the current permanent residence system and how points toward status are awarded to applicants.
Cayman Islands Chief Justice Anthony Smellie concluded in the judgment that there were “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.
If the government decides that changes are warranted to the current permanent residence points system, there could be further delays for the more than 350 residency applications now in the pipeline, some of which have been pending since late 2013.
The difficulty with the current evaluation of points is partly due to the fact that the system requires periodic re-evaluation of demand for workers in a particular occupation, according to the chief justice’s ruling.
“[There is no] explanation as to who would be responsible for those exercises and what measures would be put in place to ensure that they are reasonably and objectively carried out. It is to be expected therefore, that the periodical review and adjustments [to the point value of a particular occupation] will be carried out in a manner capable of withstanding the kind of heightened scrutiny now required of the court,” Justice Smellie’s ruling stated.
That “heightened scrutiny” referred to by the chief justice is partly owing to requirements under the Cayman Islands Constitution Order (2009) Bill of Rights. Section 19 of the governing document requires all decisions of the government to be legal, rational, proportionate and procedurally fair.
Essentially, the court judgment involving the two non-Caymanian workers stated that the decision by the Immigration Appeals Tribunal to deny their permanent residence applications was “irrational” because the tribunal could not properly explain or identify the criteria it used to rule on the applications.
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.