The Cayman Islands government could be forced to pay damages following an immigration challenge filed by a local accountant who waited three years for his permanent residence application to be heard.
Depending on what the Grand Court decides, the case could lead to a number of other challenges from permanent residence applicants who, in many instances, have been waiting between one and three years for hearings on their own applications.
According to a judicial review request filed last month, accountant Bradley Carpenter, who applied for permanent residence in October 2013, suddenly found that his “permission to continue working” status pending approval of his application had been changed to a “visitor’s” permit by the Immigration Department. No reason was given in the court records as to why Mr. Carpenter and his wife had their “permission to continue working” designation changed, but they filed a legal challenge Oct. 10, 2016 following that decision.
Grand Court Justice Ingrid Mangatal scheduled a hearing to consider the judicial review application concerning Mr. Carpenter’s case for Nov. 8.
Four days before the court hearing, Mr. Carpenter was informed that his permanent residence application had been granted.
According to Mr. Carpenter’s attorney, Alastair David of HSM Chambers, there was no reason given for why it took three years to hear the residency application. Justice Mangatal ruled Tuesday that the judicial review application should proceed, despite the fact Mr. Carpenter had already been granted permanent residence.
“The judicial review [will determine] … whether or not [Mr. Carpenter] can claim any damages as a result of the board and the chief immigration officer’s default.”
“The judicial review [will] proceed in respect of a number of issues, including the legality of the [Cayman Status and Permanent Residency] Board and the chief immigration officer’s decision not to conclude his application within a reasonable period of time and whether or not [Mr. Carpenter] can claim any damages as a result of the board and the chief immigration officer’s default,” Mr. David said.
The outcome of the judicial review could have a significant impact on the hundreds of permanent residence applicants who are awaiting decisions on their own cases. Between October 2013 and August 2016, nearly 800 people had filed for that status after having lived and worked in the Cayman Islands for at least eight consecutive years. Well more than half of that number applied for permanent residence status more than a year ago.
The one-year period between the date a permanent residence application is filed and when the government considers it has become a key legal point in the wake of a U.K. Privy Council judgment released earlier this year.
In that case, the Privy Council’s judicial committee overturned an earlier decision of an eastern Caribbean court, ruling that a 19-month delay in registering an application for citizenship was too long and was “likely to be unlawful” when considering the applicant’s human rights, according to the judgment issued Aug. 2, 2016.
The case involves a Guyanese man who was seeking to become a citizen of Antigua and Barbuda by virtue of his marriage to a woman who had already obtained that status.
The central question in the court case, previously heard by the Court of Appeal of the Eastern Caribbean Supreme Court [Antigua and Barbuda], was whether the period of 19 months it took between the man’s application for citizenship and his subsequent interview regarding that application, fell within locally acceptable and legally permissible timelines.
In total, it took the man – Clive Oliveira – 27 months from the filing of his citizenship application until his grant of Antigua and Barbuda citizenship. However, the court’s main concern revolved around the length of time it took for his citizenship application to be registered and scheduled for interview – a period of 19 months.
“We … conclude that a period of one year, from application to registration … is in general the outside limit of a reasonable time and that delay beyond that time, absent special considerations, is likely to be unlawful because a fetter on the legitimate applicant’s right to be registered,” the court ruled.
The council sent the case back to the trial court in Antigua to assess damages owed to Mr. Oliveira, who was apparently left without the right to work while his application was being decided.
Mr. David said a full hearing on the potential damages case in Mr. Carpenter’s matter would be scheduled at a later date. For now, he said, Mr. Carpenter and his wife are just glad the board has granted their permanent residence application.
“They are delighted to formally be able to look forward to permanent residence in the Cayman Islands, a place they love so much,” Mr. David said.