When the Progressives passed their Immigration Law in fall 2013, they handed the Cayman Islands a ticking time bomb of uncertainty and legal liability.
It is unclear whether the Progressives Cabinet’s belated tweaks to permanent residence regulations will be enough to defuse this dangerous piece of ordinance, or whether it will detonate and deconstruct Cayman’s entire immigration system. In the process the country’s Freedom of Information Law may suffer mortal collateral damage.
At the center of this scenario are a pair of rulings by Chief Justice Anthony Smellie.
In August 2015, the chief justice issued a landmark decision regarding two permanent residency applicants. In his ruling, the chief justice included two crucial criticisms – that the “PR points system” (particularly the different weights given to different occupations) was problematic and “arbitrary,” and that the nearly 10 years the two PR applicants spent waiting for decisions amounted to “unconscionably long delays.”
Following the ruling, the government commissioned a consultant’s report from Ritch & Conolly law firm, which was completed in mid-2016, and presumably contains an analysis of weaknesses (and perhaps solutions to those weaknesses) in Cayman’s immigration system.
On the last day of February this year, the Progressives Cabinet made long-overdue changes to immigration regulations, with the promise that the backlog of 900-plus permanent residence applications would finally be cleared.
More than a month later, the Immigration Department has signaled it is about to begin considering PR applications, albeit with no apparent substantive action, no specific timeline and, most importantly, no actual decisions.
In the meantime, the deleterious effects of the Progressives’ PR freeze are rippling through the broader legal system – and individual’s personal lives.
In a Feb. 7 judgment in a family court case, Justice Richard Williams described the PR situation as a “regrettable current state of affairs” and a “deficient part of the immigration process.” In that case, the delays in processing PR applications from a couple – who had since filed for separation – introduced complexities in the division of assets and custody of their children.
Law firm HSM Chambers has described Cabinet’s changes as “largely cosmetic” tweaks that would give nearly all applicants more “points” on their applications but do not address more fundamental issues. HSM is leading two high-profile court challenges concerning the government’s PR delays, which are still pending before the courts and are likely not be decided before the May 24 elections, but which represent real financial threats to Cayman’s public treasury.
The changes Cabinet made to the Immigration Law in February were probably informed by the 2016 report from Ritch & Conolly. In regard to statements about the “Ritch Report,” we employ qualifiers such as “presumably” and “probably” out of necessity – because neither we, nor anyone else outside of Premier Alden McLaughlin and a small circle of officials, knows what the report actually says.
In late January, Chief Justice Smellie issued a ruling that accepted as an assumption the premier’s argument that the Ritch Report constituted legally privileged advice, and then determined that, as such, it would not be “appropriate” to compel the government to turn the report over to Information Commissioner Jan Liebaers – who had sought the document precisely in order to determine if it contained legal advice.
Mr. Liebaers is now seeking to challenge that ruling in the Cayman Islands Court of Appeal.
If the chief justice’s decision stands, in our view it opens up a gaping loophole in Cayman’s FOI Law. Any time a government minister wishes to keep a public record from going public, he could simply label it “legal advice” and refuse to allow anyone, even the information commissioner, from verifying if that assertion is correct.
Further, as we reported Friday, “Mr. Liebaers said since the chief justice’s ruling was made public, a number of government entities have been attempting to deny the information commissioner’s office access to records, even without a ministerial certificate of exemption similar to the one issued by Premier McLaughlin.”
It’s too early to tell, but depending on various outcomes in court, Cayman could soon be welcoming many hundreds of new permanent residents, parting ways with millions of tax dollars in legal fees, and waving goodbye to FOI.