Court: Work permit change was legal

The Law Courts Building in downtown George Town.

An Immigration Department decision to grant new work permits to two Cayman Islands attorneys who quit their jobs last year was legal, a Cayman Islands Grand Court judge has ruled.

The decision issued June 17 may have far-reaching consequences for non-Caymanian workers’ ability to swap jobs in the islands, giving wider discretion to the chief immigration officer to allow such moves than was thought to exist.

In the decision, Justice Seymour Panton refused a judicial review application filed by law firm Appleby [Cayman] Ltd. that sought to challenge a decision by Acting Chief Immigration Officer Bruce Smith. Mr. Smith had refused to revoke a work permit granted to one of the attorneys and gave a temporary work permit to the second attorney after appeals regarding the permit decisions were made to him.

Justice Panton said Mr. Smith had not erred in law and that the judicial review request appeared to be an unintentional attempt to “involve the chief immigration officer in unnecessary and unwarranted litigation.”

In the request for court review, Appleby representatives stated that two of their lawyers – referred to in the decision only as “attorney A” and “attorney B” – “resigned simultaneously on June 4, 2015 in a team move to work for [another firm of attorneys-at law].” That firm has been identified in other court records as Harneys.

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In August 2015, Appleby requested that the Business Staffing Plan board not grant the two lawyers the right to work for Harneys.

Initially, the court documents state, the work permit for “attorney A” was refused, but that decision was later reversed. After some correspondence between Appleby and the chief immigration officer, the decision to grant the work permit was upheld. In February, a temporary work permit was granted to “attorney B” and Mr. Smith indicated this also would not be revoked.

The request for judicial review asked the court to force Mr. Smith to reconsider his decision regarding “attorney A” and quash his decision regarding “attorney B’s” permit.

Justice Panton stated that the application amounted to “a question of whether the chief immigration officer had the power to do what he did.”

Section 50 of the Cayman Islands Immigration Law states that during the period covered by a work permit, the permit holder may not change his or her employer unless the chief immigration officer or the immigration-related board finds there are “special circumstances.” Those can include where a job has become redundant, where the worker is being victimized by the employer, where the employer has changed due to corporate-level action or where the worker has been given permission to change jobs by their employer.

Justice Panton stated that the list of “special circumstances” defined in the law was not meant to be exhaustive. “The chief immigration officer has been clearly given a discretion by the legislature,” he noted.

“I do not see why leave should be granted for a challenge to be mounted in respect of the chief immigration officer’s exercise of a discretion that the law gives him,” Justice Panton wrote.

Appleby lawyers presented Hansard records of previous Legislative Assembly debates where lawmakers indicated their positions on the matter of job changes. However, the judge regarded those statements as “unhelpful.”

“Legislators the world over have, from time to time, said one thing yet legislated another,” Justice Panton wrote. “In my view, if the legislature wishes to prevent situations such as the instant one, it must say in clear language that the chief immigration officer has no discretion, and list exhaustively the circumstances the chief immigration officer should consider.”

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