A Cuban asylum seeker detained in George Town for more than a year will take his case to the Grand Court, contesting what he believes to be a legally flawed rejection of refugee status by the Immigration Appeals Tribunal.
The case follows a successful asylum hearing before the tribunal in January, favoring a Cuban pro-democracy activist, who now has the right to live and work in the Cayman Islands.
The cases, both taken on by HSM attorney Alastair David, represent an intensification in legal appeals by Cuban migrants in the Cayman Islands, most of whom cannot afford to hire an attorney and attempt to defend their cases independently.
Migrants who can afford and successfully acquire counsel are an exception to the rule, Mr. David said, describing the overall legal situation as “appalling.”
Asylum applicants are granted access to government-funded legal aid once they have been rejected by the volunteer-led Immigration Appeals Tribunal. This step can take a year or longer to reach, and by this point, Mr. David said migrants have missed their best opportunity to successfully present their cases.
Appeals to the Grand Court must be made on a point of law, such as an error in the Immigration Appeals Tribunal judgment, Mr. David explained. If the court finds a flaw in the process, the case is then sent back to the appeals tribunal, resulting in a possible “ping pong” effect as migrants bounce between institutions. Meanwhile, asylum applicants languish under lock and key in detention for months to years.
The absence of aid on the tribunal level, he added, places an undue burden on lawyers who feel pressure to provide counsel on a pro bono basis.
“For instance, I’ve gone down in the past and spoken to people for free. So I can go in and speak to them, but it doesn’t make a hill of beans of difference if I can’t then advise them and put together the case,” the attorney said.
For his most recent tribunal case, Mr. David estimated the documents required 25 hours of work to put together at a cost worth approximately $15,000.
“It’s unrealistic to have all the lawyers giving their time for free. Going to the Immigration Appeals Tribunal takes an awful lot of work,” he said.
Migrant access to legal aid was one of five priority issues regarding asylum seeker case management set out by government in August. The Immigration Department, the Department of Home Affairs, the Prison Service and the Health Services Authority were working on an interdepartmental follow-up to these issues, but it was not clear if this response would be made public.
The needs outlined in August included:
- A written policy and procedure manual to be given to detainees upon arrival, explaining the processes
- Training for immigration staff on how to handle asylum seekers and refugees
- More detailed on-site reporting
- Legal aid for those who go to court, and
- Translators who can travel off site with detainees.
Immigration staff participated in a two-week asylum training in April last year, organized by the Governor’s Office and facilitated by a specialist from U.K. Visas and Immigration.
Legal aid confusion
Legal resources provided to migrants at the appeals tribunal level are currently limited to a list of phone numbers and the goodwill of volunteers who visit the center. Detained migrants are provided a phone number to access free legal advice through the Legal Befrienders program, according to a statement released Saturday night by the Governor’s Office and the Immigration Department.
Mr. David had not heard of the program. McGrath Tonner attorney Laura Larner said she had not used the program before but had previously directed migrants to this option.
“We can confirm that all of the migrants have access to free legal advice through the Legal Befrienders programme and that the telephone numbers for this service [are] displayed on the [Immigration Detention Centre] notice board. A number of migrants have already made use of this service … all detainees have access to the telephone,” the government statement read.
“Migrants who are granted leave for a judicial review are also eligible to apply to the courts for Legal Aid. We can also confirm that the IDC staff includes Spanish speakers,” the statement continued.
Several migrants without legal aid have attempted handwritten appeals on their own, resulting in confusion over the status of individual cases and whether appeals were filed at all. At least three men who incorrectly believed their cases were appealed to the Grand Court expected to be expatriated on Friday, Feb. 9.
The situation has resulted in small acts of protest in the center, including a more than week-long hunger strike by Yoel, a migrant featured in the Cayman Compass in August who was mostly blinded in one eye while working on a government grounds crew. After learning of his pending expatriation, a visibly distraught Yoel posted himself on the detention center’s patio with a sheet reading, “Allowing injustice means opening the way for all those who follow.”
He pleaded that if returned to Cuba, he would be jailed for refusing government-mandated work, as his faith as a Jehovah’s Witness dictates.
Yoel, who has not been represented by a lawyer, submitted his own handwritten appeal to government in July 2016, following an Immigration Department letter dated June 29, 2016, that denied his asylum claim. The letter said Yoel could not prove a well-founded fear of persecution and therefore did not meet the criteria for refugee status under the 1951 Refugee Convention.
“I am appealing to the Justice Tribunal. I ask them to please closely reconsider my case given that if I am returned to Cuba, my life will turn into hell due to the Cuban authorities. I fear even more for my children who are young, 2 and 3 years old. They live alone with my mother, since unfortunately, their mother is mentally ill,” Yoel stated in his handwritten appeal.
While his appeal was apparently not accepted, Yoel continues to be detained, now seven months beyond his appeals deadline. Government declined to comment on his extended detention, now nearing two years.
As of Saturday, the Governor’s Office reported 21 Cuban asylum cases were pending in the Cayman Islands. Three of these individuals were sent back to Cuba Monday, leaving 16 detained in George Town’s co-ed facility, and another two being housed outside the detention center in private accommodation.
The Governor’s Office said it is currently reviewing the process of any forced removals or formal deportations.