The hundreds of permanent residence applications that the Progressives government has refused to consider over the past three years might as well be a stockpile of dry driftwood, begging for a match.
Last week, the inevitable came to pass. Law firm HSM Chambers submitted a court filing that packs explosive arguments against the system into a tidy 10-page document that could serve as precedent, and a template, for future litigation. The grievances enumerated in the court filing are so dire that, if proven, should never be associated with a country of the international status and stature of the Cayman Islands.
To be specific about this particular case, HSM attorneys are seeking a declaration from a judge on behalf of Mark Edmunds, a local financial services professional, that the government’s failure to reach a decision on his permanent residence (PR) application submitted in June 2014 is “unlawful, irrational, disproportionate and contrary to the principles of natural justice.”
Attorneys also want the judge to order immigration authorities to consider the PR application within two weeks of a court order and – this is important – for the judge to order payment of monetary damages resulting from the Progressives government’s “misconduct or inaction.”
The attorneys are basing their case on local and international law, including sections of the Cayman Islands Constitution (“All decisions and acts of public officials must be lawful, rational, proportionate and procedurally fair.”) and a similar article in the European Convention on Human Rights.
The attorneys also argue that immigration officials’ refusal to reach decisions on PR applications from their clients and hundreds of others “can be seen to be applying a moratorium to the processing of PR applications and thus acting ultra vires” – put another way, effectively creating their own “law” by not following the Immigration Law passed by Progressives legislators in 2013.
The legal documents read like a textbook example that could be applied to each individual on the PR waiting list (or the applicants as an entire “class”), particularly in the context of the recent U.K. Privy Council judgment declaring that one year was sufficient time for authorities to act upon an immigration application, and after that damages could accrue. Additionally, in a separate immigration case, Cayman’s Chief Justice Anthony Smellie stated that inordinate delays in immigration decisions amounted to a miscarriage of justice.
But back to Mr. Edmunds’s filing. It is claimed that when Edmunds applied for permanent residence in June 2014, he accompanied his application with $26,625 in required fees, which the government still holds.
(It is not known – because government has not revealed – how much it has accumulated in PR fees over the last three years from the approximately 800 applicants who have not had their cases processed. Estimates range from $8 million to $16 million. Fiscal prudence would dictate that these funds, which may need to be refunded to unsuccessful applicants, be safeguarded in an escrow account, rather than mingled with general revenues. However, the Compass has been unable to locate such an account in current budget documents.)
Mr. Edmunds is seeking damages of more than $5,000, calculated according to an annual interest rate of 8 percent on his application fees.
But the potential cost is much, much greater. The lawyers sum it up in the following, open-ended phrase: “damages for injury to feelings and unwarranted stress that he has suffered as a result of having to wait over 29 months for a decision to be reached in relation to his PR application.”
For the past three years, the Progressives government has been playing a dangerous, and potentially expensive and explosive, game with PR applicants, setting as a political finish line the May 2017 election. It appears they will come up short.
We cannot imagine the premier will be able to maintain his silence much longer on this issue. It will be the courts that will force him to obey the very laws that he and his government enacted.