A myriad of legal difficulties arising in the determination of nearly 800 applications for permanent residence made by foreign nationals in the Cayman Islands has created a growing danger of human rights challenges against the government, a danger that is increasing on a “daily basis,” according to a review of the issues completed by a local law firm.
Several pages of analysis, sent to the Cayman Compass this week by attorneys Nicolas Joseph and Alastair David of HSM Chambers, reveal a number of areas where legal weakness, uncertainty and delay could potentially prejudice the rights of permanent residence applicants.
“The potential for some foreign nationals to bring and successfully argue that the current failure to have in place a rational and effective permanent residence system breaches their human rights and the Cayman Islands Constitution increases on a daily basis,” said Mr. David, an associate attorney at HSM Chambers.
The permanent residence application system has already been reviewed by noted local immigration attorney David Ritch and his $312,000 consultant’s report was presented to government earlier this year. That review has not been released.
The report was done in the wake of a Grand Court judgment last year that questioned certain aspects of both the past and current permanent residency application systems used by the Cayman Islands government. Among the issues identified by Chief Justice Anthony Smellie in that decision were apparent “injustices” done to two residency applicants who had waited nearly 10 years for their cases to be decided. In addition, Chief Justice Smellie opined that the current system of awarding points to permanent residency applicants based on what the government considers “priority occupations” was fraught with complications and “arbitrary.”
Eventually, the two non-Caymanian workers referenced in the judgment received their permanent resident status.
The HSM attorneys’ review of the matter goes beyond the issues raised in the chief justice’s ruling, identifying a number of other sections of the residency “point system” that could prove to be problematic, if a legal challenge were to be brought.
The general delay being caused by government’s decision not to hear any permanent residence applications until policymakers can sort out how to address Chief Justice Smellie’s August 2015 ruling carries its own legal risk, the HSM lawyers found.
Mr. David points to a case recently decided by the U.K. Privy Council involving an application for citizenship in Antigua and Barbuda that was effectively put on hold for more than two years before it was finally decided. In that instance, the Privy Council – which is Cayman’s ultimate appeals court in most matters – basically stated that one year would be the longest acceptable period between a citizenship application and that application being heard by the relevant local authorities.
“Many [permanent residence] applicants have been waiting close to three years,” Mr. David said, referring to Cayman’s current backlog of PR applications.
Section 26 of the Cayman Islands Constitution Order (2009) Bill of Rights states: “Any person may apply to the Grand Court to claim that government has breached or threatened his or her rights and freedoms under the Bill of Rights and the Grand Court shall determine such an application fairly and within a reasonable time.”
Section 19 of the bill states that all decisions of government must be lawful, rational, proportionate and procedurally fair.
The two Bill of Rights sections, taken in conjunction with the recent Privy Council ruling from the Antigua case, could call into question the Cayman Islands government’s handling of some 800 permanent residence applications filed since October 2013, Mr. David said.
“In my mind, the very fact that the board [is] not determining applications is an infringement of the Bill of Rights, unreasonable behavior, irrational and may represent a fettering of the authorities’ discretion,” he said. “Whether the government has to have a permanent residence system is not really relevant in that it has one at the moment. Given that it has such a system, it does have to be reasonable and rational. Currently, it seems to be neither.”
What are ‘work permits’?
The HSM attorneys have also called the general accuracy of the government’s work permit/foreign worker data into question.
The information used by the immigration boards to determine “diversity” points on an individual’s residency application is crucial, the lawyers state. This is because anywhere from zero to 10 points on the application are awarded based on the residency-seeker’s country of origin.
Under the current system, workers from countries which represent fewer than 5 percent of the total work permits held in Cayman receive 10 points, those nationalities representing between 5 and 10 percent of the work permits held will receive five points and those representing nationalities that hold more than 10 percent of the permits receive no points.
Mr. David notes that in July, the Immigration Department reported there were 24,077 active work permits. However, about 900 government contract holders – who are not defined as work permit holders under the Immigration Law – are included on that list.
Meanwhile, non-Caymanian permanent residents with the right to work or who are married to Caymanians are not included on the work permits list.
“In reality, the total population of foreign workers is, perhaps, significantly higher than the reported 24,077,” Mr. David said.
This makes a difference, particularly for North American workers, who now find themselves on the brink of receiving either five or 10 points for their nationality on residency applications. For example, it is stated that 1,233 Canadians were in Cayman on work permits as of July. Calculated based on 24,077 work permits, Canadians would make up 5.1 percent of the work permit population and would receive five points for nationality on their applications.
However, if all foreign workers were included, and the total was higher, Canadians might receive the full 10 points for nationality on their residence applications.
“The difference in those five points could well be the difference between many families being able to stay in the Cayman Islands or having to leave,” Mr. David said.
For many residency applicants, the timing of when their application is to be heard is critical, and at this stage there seems to be little guidance from the relevant immigration board because it is not hearing any cases.
This is particularly important, the HSM attorneys argue, when it comes to an applicant’s age. Points awarded based on a worker’s age operate on a sliding scale, with 10 points being awarded to younger workers (ages 25-35), eight points being awarded to those ages 36-45 and six points for those ages 46-60. Those who are 61 and above receive zero points and workers who are between ages 18-24 receive four points.
In the case of a 34-year-old worker who had to wait two-and-a-half years for a residence application to be heard, they could find themselves losing points for age simply because it took so long for the government agency to consider the application.
Moreover, if that same worker applied for residency and lost their job through no fault of their own (for example, wrongful termination), they would have to declare they had become unemployed, seriously damaging their chances for residency.
“That applicant could then argue that due to a failure to consider his application in a reasonable period of time, the decision is flawed and the board should have considered his application at some sort of hypothetical date,” Mr. David writes. “[For example], no later than 18 months-post application which would have resulted in a grant to him of permanent residence.”
Delays in the approval or denial of residency applications can also affect underage children, who, in certain circumstances, can become “stateless” – meaning they are actually citizens of no country in the world.
The HSM lawyers discuss a hypothetical example of parents awaiting a decision on a residency application who have a child that turns 18 while they are awaiting that decision. If that child, now considered an adult, is not attending university and is not a dependent of his or her parents any longer, they either must find local employment or leave Cayman.
“There appears to be no option in the Immigration Law by which such a person can realistically remain, even though they will have lived in the Cayman Islands since they were a young child and may not have, or know, any other home,” Mr. David states.
It is relatively easy, the HSM attorneys say, to imagine liability to government arising from this situation “in such circumstances where such treatment can be shown to exist due to a failure to process applications in a timely [reasonable] period.”