‘Unlawful moratorium’ alleged in permanent residency court filing

The Cayman Islands government’s failure to hear a trust manager’s application for permanent residence for the last 29 months is irrational, unlawful and “can be seen as applying a moratorium to the processing of permanent residence applications,” a request for judicial review sent to the Grand Court last week alleges.

The judicial review application filed Nov. 29 on behalf of Rawlinson & Hunter Trust and Corporate Services Manager Mark Edmunds alleges the government-appointed Caymanian Status and Permanent Residency Board, as well as the chief immigration officer, have ignored both Caymanian and European human rights protections in deciding to delay Mr. Edmunds’ and hundreds of other residency applications.

There are about 800 applications for permanent resident status – the right to remain in Cayman for the rest of one’s life – pending consideration by the board. Those applications have been filed between Oct. 26, 2013 and this month by non-Caymanian individuals who have lived continuously in Cayman for at least eight years.

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Mr. Edmunds applied for permanent residence on June 18, 2014. As of the date the judicial review request was filed, his application had not been heard.

Correspondence sent by Mr. Edmunds’s attorneys at HSM Chambers to the government in October regarding his pending application did not receive a response, according to his judicial review application.

Mr. Edmunds’s legal challenge, believed to be the first filed under the Immigration Law that was amended in October 2013, seeks the court to declare the government’s actions with regard to his residency application unlawful and “contrary to the principles of natural justice.” It asks the court to force the government to hear the residency application within two weeks of any order it makes relative to the case.

The judicial review application also asks the court to assess and award damages in the matter due to “injury to feelings and unwanted stress that [Mr. Edmunds] has suffered” as a result of waiting 29 months for the residence application to be considered. No specific monetary claim was made regarding the “unwanted stress and suffering.”

In addition, the court filing also asks that Mr. Edmunds be awarded interest on the more than $26,000 he spent in order to file the permanent residence application. His attorneys estimated the interest costs accumulated on the sum during the 29-month period at more than $5,000.

The Cayman Islands Ministry of Home Affairs has not responded to numerous requests from the Cayman Compass regarding how much money the Immigration Department has collected in permanent residence fees since October 2013. Private sector sources have estimated that amount at anywhere between $8 million and $16 million. The fees paid are legally required to be returned to an applicant if their residency application is unsuccessful, less the $1,000 application filing fee.

In his judicial review application, Mr. Edmunds argues that his residency case could have been heard despite government’s current uncertainty over how to award points to applicants for their on island employment. If the Caymanian Status and Permanent Residency Board could not or would not hear the application, the amended Immigration Law that took effect on Oct. 26, 2013 allowed the chief immigration officer to do so, he stated. However, the judicial review application states that the chief immigration officer has declined take such action.

“[The chief immigration officer], by failing to take over the permanent residence system from the board, he has given approval to the unlawful moratorium imposed by the board,” the Grand Court filing states.

“It is not within the board’s power to stay decisions for 29 months,” the court filing states.

Human rights

Individuals waiting for years upon the outcome of permanent residence applications in the Cayman Islands is nothing new. During one period between 2005 and 2010, thousands of residency applications were delayed for periods of between one year and five years before

receiving a decision from government.
In some cases, those residency applications waited far longer to go through the government appeals process. In one case, highlighted last year by Chief Justice Anthony Smellie, a Jamaican woman who filed her residence application in 2006 received her residency grant this year.

The Cayman Islands government and the U.K. government agreed on an updated constitution order which was approved by the voters in May 2009. The bill of rights attached to that constitution document did not take effect until November 2012.

Mr. Edmunds makes some of his claims in the judicial review application based on sections of the Cayman Islands Constitution Order’s (2009) Bill of Rights.

He alleges that his right to private and family life (section 9) has been infringed by government’s delay in hearing the residence application. The court filing further alleges that government’s delay could be construed as neither lawful, rational, proportionate nor procedurally fair as set out under section 19 of the bill.

In addition to the Cayman Islands human rights claims, additional allegations are made under the European Convention on Human Rights that the Cayman Islands government has failed to give Mr. Edmunds a fair and public hearing. The right to private and family life under the European convention is also invoked in the judicial review application.

The Cayman Islands government has neither approved nor rejected any permanent residence applications under the current Immigration Law since at least January 2015

Chief justice concerns

The Cayman Islands government has neither approved nor rejected any permanent residence applications under the current Immigration Law since at least January 2015. The government has blamed the state of uncertainty over the applications partly on an August 2015 ruling by Justice Smellie on the permanent residence applications of two non-Caymanians.

The issues identified in the 2015 court judgment dealt with two major areas: First, the actions of the Immigration Appeals Tribunal in judging two cases in which non-Caymanians, a Canadian and a Jamaican, had applied for permanent residence. The tribunal’s actions in the cases were determined to be a “miscarriage of justice.” Those applications were made under a former version of the Immigration Law. The two applicants were granted permanent residence earlier this year following a re-hearing of their case before the tribunal.

The second matter involves the current permanent residence system and how points toward that status are awarded to applicants. Currently, applicants are required to secure 110 points out of 215 available in the application process. Questions have arisen regarding how 15 of those 215 points are to be awarded in the process.

Chief Justice Smellie concluded in the judgment that 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.

Premier Alden McLaughlin has said on a number of occasions that he would reveal government’s proposals to deal with the issues described by the chief justice, but to date he has not done so.

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1 COMMENT

  1. And…there lies the crux of the matter…the Cayman Islands, as a BOT, are in violation of British immigration and human rights laws by holding up the processing of these PR applications.

    It will be a highly charged and emotional issue in Cayman if this matter ends up in either a Caymanian or British court and as the matter stands, unless this impasse is broken, that is exactly where it is headed.

    These are previously published comments on the topic.

    As it has turned out…one did not need to be a prophet or have a crystal ball to know that this issue would end up in the hands of the courts.

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