A blanket provision in Cayman’s Immigration Law that requires the removal of a non-Caymanian from the islands following conviction for any offense carrying at least a 12-month prison sentence may face court challenges in the coming months.
One case, requesting judicial review of a prohibition order, was submitted in November on behalf of Ian Fernando Ellington. Ellington pleaded guilty to being an accessory after the fact to the September 2013 robbery of Chisholm’s Supermarket in North Side.
Ellington argues that he was not given a “fair and reasonable” chance at a hearing before the chief immigration officer’s decision on Sept. 3, 2016 making him a prohibited person in the Cayman Islands.
“Ian Fernando Ellington is married to a Caymanian and should be given a chance to put his case forward against being designated as a prohibited person,” the judicial review filing states.
A handful of cases that have come before the European Court of Human Rights in Strasbourg, France, in recent years have debated issues similar to the ones being challenged in the Ellington case, according to U.K. barrister Colin Yeo.
Mr. Yeo, a 15-year veteran British immigration attorney, wrote in a post on www.freemovement.org that the European Court of Human Rights decisions set out two situations in which a foreign criminal might succeed in fighting deportation on human rights grounds.
The first instance involves a foreign criminal who has been convicted of a less serious offense and who has lived in the foreign land for most of his or her life, knowing little or nothing about the country to which he or she would be forced to return.
The second instance involves whether a foreign criminal has children and/or a spouse in the land from which he or she is being deported.
“The question becomes whether the family can be expected to relocate abroad, whether it is reasonable and proportionate for the family to be permanently split by deportation of the foreign criminal, or whether the foreign criminal should be allowed to remain with his or her family,” Mr. Yeo writes.
In the U.K., Mr. Yeo said, judges have typically been highly skeptical of family related claims made by the subjects of deportation orders. “Strong evidence is need to prove this,” he writes.
In Cayman, both human rights protections for family life and for the guarantee of proportionate, rational and procedurally fair decision-making exist under the Bill of Rights attached to the local Constitution Order (2009).
Under section 82 of the local Immigration Law, a non-Caymanian who is not a permanent resident can be deported after conviction “in any country” where the sentence exceeds 12 months. Permanent resident status can be lost if a person is convicted of a crime in the islands.
Ellington was sentenced to two years in prison in March 2014 for his role in the Chisholm’s Supermarket robbery.