A Cayman Islands insolvency accountant is the third person to file a legal challenge over government’s three-and-a-half year delay in considering his application for permanent residence.
Derek Larner, who applied for residency status on Dec. 6, 2013, alleged in an April 28, 2017 judicial review filing that government’s failure to consider the request – even after his lawyers wrote to the attorney general, chief immigration officer and the Caymanian Status and Permanent Residency Board – amounts to an unlawful, irrational, disproportionate and unjust decision.
Mr. Larner’s attorneys at HSM Chambers further stated that Acting Chief Immigration Officer Bruce Smith should have taken up the permanent residence application after it was “clear the board [was] not carrying out [its] duties.” Mr. Smith did not do so, the court records stated.
“By not reaching a decision in regards to [Mr. Larner’s] permanent residence application and the numerous other outstanding applications, the board and the chief immigration officer can be seen to be applying a moratorium to the processing of residence applications and thus acting ultra vires [Latin phrase meaning outside the law],” the application for judicial review states.
At present, there are somewhere between 900 and 1,000 outstanding applications for permanent residence awaiting hearing by either the board or the Immigration Department. Legal uncertainties have delayed the hearing of any of those applications since at least January 2015.
Mr. Larner’s claims are similar to the ones made in a judicial review application filed by financial services manager Mark Edmunds last year. Mr. Edmunds’s case was accepted for review by the Grand Court, but a hearing on it has not yet commenced.
Mr. Larner’s application raises the specter of a 15-year-old court decision that profoundly changed Cayman Islands immigration policies, even to the present day.
It refers to a landmark Cayman Islands court decision made in 2002, Warren v. Immigration Board. The case was essentially the court ruling that called into question the government’s then 10-year moratorium on grants of Caymanian status [akin to local citizenship or belonger’s rights]. The fallout from that court decision led to the creation of Cayman’s “rollover” policy in 2003, which prevented any non-Caymanians from staying here more than seven years consecutively without receiving specific permission to do so, first from their employers and then the Immigration Department and its related boards.
“It is not within the board’s power to stay decisions for 37 months,” Mr. Larner’s judicial review application states. “In the case of Warren v. Immigration Board , the governor’s moratorium on Caymanian status applications was held to be ultra vires [outside the law].”
The attorneys argue that government’s actions more recently have created a similar moratorium for permanent residence applicants.
A court hearing for Mr. Edmunds and accountant Bradley Carpenter’s claims over his permanent residence application delays is due to occur later this month. Mr. Carpenter was awarded permanent residence, but alleged that a three-year delay in processing his application led to significant damages. Mr. Edmunds’s application remains undecided.
Both men, as well as Mr. Larner, are represented by HSM Chambers. The law firm sent out correspondence to all the individuals it is assisting with permanent residence applications this week, indicating that its attorneys were uncertain why delays continue to occur in the processing of those applications.
“We do not believe that any of the issues are such as to prevent the grant of permanent residence to persons who plainly … score in excess of the required 110 points,” the email, obtained by the Cayman Compass, noted.
The firm’s attorneys said government officials informed them they were “waiting for legal advice” and the resolution of pending court proceedings. No dates have been set for the processing of any residence applications filed since Oct. 26, 2013.
“We, of course, do not specifically know when and if the authorities have received legal advice, nor the nature and content of it,” the HSM correspondence stated.
“We do know that the chief justice issued his ruling [regarding difficulties in the permanent residence grant system] in the summer of 2015 following applications made by this firm, and that the Ritch Report was delivered in approximately May 2016.
“We also know that the points system was finally updated to “fix” all the issues (on no notice and seemingly with little or no consultation with those charged with giving effect to it) on Wednesday, March 8, this year. It was anticipated that any barriers (real or perceived) to considering applications were thereby immediately removed.
“That was eight weeks ago [Wednesday].”