Two Grand Court lawsuits filed this month against the Immigration Appeals Tribunal allege that decisions of the tribunal were contrary to human rights protections in the Cayman Islands Constitution Order (2009).
The writs, filed on Oct. 2 and Oct. 19, come on the heels of a landmark ruling by Cayman’s Chief Justice Anthony Smellie on Aug. 28 which raised questions in a number of areas surrounding the Immigration Law, both in previous iterations and in its current form.
The writ filed on Oct. 2 on behalf of Milton Arthur John Buchanan by the law firm Bodden and Bodden alleges that the appeals tribunal “acted unreasonably and/or contrary to the principles of natural justice” in denying an appeal of his permanent residence application after it was initially denied by the Caymanian Status and Permanent Residency Board.
“The tribunal was bound … to consider whether the Caymanian Status and Permanent Residency Board had acted unlawfully in assessing the appellant’s application by reference to certain materials that were either not provided to [Mr. Buchanan] … or were unauthorized materials …” the Oct. 2 writ alleges.
Mr. Buchanan’s application essentially claims that the board erred in law by not correctly determining how many “points” he should have been awarded on his PR application for his salary and occupation. The appeal was filed under the former version of the Immigration Law, prior to major amendments the government approved in October 2013.
“[The tribunal] failed to have regard to the fact that the Caymanian Status and Permanent Residency Board [was] using a point calculation chart which was unlawful even though they were aware of this unlawful application,” the writ states, seeking a decision by the Grand Court for a rehearing of the permanent residence application.
The second writ, filed Oct. 19 on behalf of Cherine Amanda Rochester by the law firm Travers, Thorp Alberga alleges that Ms. Rochester “was never personally served with the reasons” why the Caymanian Status and Permanent Residency Board denied her PR application last year.
This failure to provide information “deprived” Ms. Rochester of the ability to formulate proper grounds for an appeal, the lawsuit alleges.
The advent of the Cayman Islands Bill of Rights, which came into effect in November 2012, and in particular section 19 of the bill, appears to have significantly changed the game with regard to the processing and hearing of immigration-related applications.
The issues identified in an Aug. 28 court judgment from Justice Smellie dealt with two major areas: The issue of primary concern in the above cases involved the actions of the Immigration Appeals Tribunal in judging two earlier 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 also made under a former version of the Immigration Law. The Immigration Appeals Tribunal was ordered to re-hear the applications of the two workers, one of whom had applied for residency status in 2006.
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.
That is essentially the same claim made in Mr. Buchanan’s Oct. 2 lawsuit, which remains to be determined by a court.