Women at center of landmark immigration case granted PR

Two women who applied for permanent residence nearly a decade ago were granted that status last week in a case in which Cayman’s chief justice ruled a “miscarriage of justice” had occurred.

According to a letter received July 12 by attorneys at HSM Chambers, Michelle Hutchinson-Green and Alisha Racz were granted permanent residence, a legal status that allows a non-Caymanian to remain in the Cayman Islands for the rest of their life. Permanent residence is the first step on the path toward obtaining British Overseas Territories citizenship and ultimately Caymanian status, the legal right to be a Caymanian.

HSM attorneys who worked on the case told the Cayman Compass last week they were given permission by the women to disclose details about the matter. Both women declined requests for interviews made through their attorneys.

The women had challenged earlier denials of their permanent residence applications, first to the Immigration Appeals Tribunal and ultimately to the courts, ending in the landmark August 2015 judgment by Chief Justice Anthony Smellie. That ruling concluded that appeals tribunal decisions regarding Ms. Hutchinson-Green, a Jamaican, and Ms. Racz, a Canadian, that denied their appeals for PR were “substantially wrong.”

The chief justice’s commentary on Ms. Hutchinson-Green’s permanent residence application also called into question some of the factors used to determine points awarded toward that application.

Chief Justice Smellie’s ruling ordered that the case be sent back to the appeals tribunal for a rehearing. In early 2016, HSM attorneys sought “further directions” from the chief justice, since they had not been informed that any action was taken since the chief justice’s decision nearly eight months prior.

The appeals tribunal held a hearing on the matter in June, the attorneys said. Neither the lawyers nor the applicants attended.

On July 12, the tribunal issued its decision granting both women permanent residence.

Key decision

Although the legal challenge over the denial of the permanent residence applications dealt with cases that were nearly a decade old – Ms. Hutchinson-Green’s application was filed in November 2006 – some of the issues identified in Chief Justice Smellie’s ruling could affect the processing of permanent residence applications under the current Immigration Law.

For instance, in August 2015 Chief Justice Smellie concluded 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.

The judgment also served to clarify a significant point of contention in immigration appeals cases during which the legislation is amended – often more than once – before an applicant’s appeal is heard. Chief Justice Smellie essentially ruled that applicants cannot be disadvantaged by the newly amended law if they applied under an earlier version of the Immigration Law – the law the person applied under should be the one used to determine his or her appeal.

The chief justice’s decision led government to delay processing current residency applications to allow for a consultant’s review. The review, completed earlier this year by law firm Ritch & Conolly, has been submitted to government. Premier Alden McLaughlin had pledged to give further details of the review findings during the last meeting of the Cayman Islands Legislative Assembly. The consultant’s report has not been released.

Appeals cases

Chief Justice Smellie’s ruling stated that both Ms. Hutchinson-Green and Ms. Racz had what amounted to arbitrary appeals rulings made against them by the Immigration Appeals Tribunal.

In both cases, the women’s permanent residence applications were denied by the Caymanian Status and Permanent Residency Board. Their cases were appealed to the tribunal, which – in both instances – increased the number of points awarded to the applicants in some categories. However, the appeals tribunal inexplicably reduced points awarded in other categories below what the Caymanian Status and Permanent Residency Board initially decided.

In Ms. Hutchinson-Green’s case, points were deducted from her occupation, even though her job had not changed; her skills, though she had engaged in additional training during the period of her appeal; and her salary, even though her pay had increased during the period.

In addition, some of the materials used by the Immigration Appeals Tribunal to judge Ms. Hutchinson-Green’s application were not included in the law or regulations and appeared to be “policy documents” created by the board, Chief Justice Smellie wrote. These “policy documents” were never shown to the applicant at the time and she was never given a chance to respond to them, Ms. Hutchinson-Green’s attorney said.

In Ms. Racz’s case, points were reduced for her occupation and salary in a manner which HSM attorneys said “created the appearance of bias” in the appeals tribunal’s deliberations.

Also noted in the chief justice’s ruling was what he described as “unconscionably long delays” in hearing one of the cases. Ms. Hutchinson-Green’s PR application was submitted in November 2006 and wasn’t finally rejected by the appeals tribunal until October 2013. During that period, the Immigration Law was amended more than 10 times, the judgment stated.

Chief 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 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.

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