EDITORIAL – Permanent residence: A high price to pay for dawdle and delay

“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.”

– Alastair David, immigration attorney

While the legal analysis by HSM Chambers law firm of Cayman’s current immigration situation is complex, the overall point is quite simple: Our government’s continuing refusal to consider hundreds of permanent residence applications, coupled with flaws in the assessment criteria themselves, has put the country at great, and growing, risk of being taken to court, and losing – big time – with significant financial ramifications.

Regular readers of Compass editorials know that we have been steadily beating the warning drum on this topic ever since it became obvious that the Progressives administration had no intention of granting PR to anyone who has applied since legislators changed the Immigration Law in fall 2013, and, on the contrary, had every intention of depriving even the most clearly qualified applicants of a decision, no matter the diktats of the law, the Constitution or international standards of human rights.

Our remarks have been reinforced from time to time by authoritative conclusions, including from Chief Justice Anthony Smellie’s scathing August 2015 ruling against immigration injustices, and more recently from the U.K. Privy Council’s findings in a relevant (but not identical) citizenship scenario in Antigua and Barbuda.

That being said, we’re “just journalists,” not attorneys. However, Mr. David and Nicolas Joseph, of HSM, most definitely are. Their analysis of weaknesses, risks and potential legal exposure in Cayman’s current immigration paradigm carries considerable intellectual heft.

We suspect that HSM’s analysis is similar in substance to the consultant’s report ($312,000 worth of wisdom) presented by local immigration attorney David Ritch to the government earlier this year. Our suspicions are based on the professional esteem and reputation accrued by Messrs. David, Joseph and Ritch; we would be surprised if their observations diverged dramatically while looking at the same landscape.

Unfortunately, though, we cannot make any declarative statements about Mr. Ritch’s report – at least not yet – because Premier Alden McLaughlin and his officials so far have refused to make it public. Their claim is that the report constitutes legal advice and is subject to legal privilege – meaning that the government does not have to release the report to public viewing, and therefore they will not. The Compass is currently challenging that interpretation, so time will tell if the Ritch report ever reaches the eyes of the people who paid for it – namely you.

Many of our readers may be tempted to draw a parallel between the current situation and what happened in the years before 2003, when then-Leader of Government Business McKeeva Bush felt compelled to grant Caymanian status to thousands of people, en masse. There are similarities.

However, where the current situation is dissimilar is, in addition to the prospect of mass PR approvals (perhaps through the courts rather than Cabinet or immigration authorities) is that, this time around, the Privy Council has set a precedent that a government can be held liable for monetary damages for waiting more than a year to make a decision on an immigration application, regardless of what the decision ultimately is.

Make no doubt, thanks to this government’s years of deliberate inaction, there will be consequences to pay – for the country, financially, and for the Progressives, perhaps politically.