Cuban asylum seekers not invited to attend appeals hearings

Cubans asylum applicants detained in George Town’s Immigration Detention Centre received notices recently from the Department of Immigration that they are not to attend their own appeals hearings, unless invited to do so.

The Cubans said that none of the applicants who received the letters had been granted legal aid to hire a lawyer to represent them before the Immigration Appeals Tribunal, the body tasked with reviewing asylum applications that have been rejected by the Department of Immigration.

There are currently 10 Cuban asylum applicants detained in Grand Cayman – four individuals who arrived in September, five who arrived last week, and one who was returned to the facility after problems with his supervised release.

The letters, written under a Department of Immigration heading, state, “Section 16(2) and 16(7) of the law establish that sessions will be fundamentally written and submitted only. Due to that, you will not appear in person before the IAT [Immigration Appeals Tribunal] unless you are invited.”

Section 16(2) of the Immigration Law establishes that appeals hearings “shall be on the basis of the written grounds filed by the appellant and neither the parties nor their representatives shall be present at the hearing.” Section 16(7) states, “Neither the appellant nor his representative shall be permitted to be present at the rehearing of the original application which shall be based on written submissions with respect to fresh evidence or changes in circumstances.”

In the case of most detained Cuban asylum applicants, their grounds for appeal have been handwritten in Spanish themselves, without the guidance of a lawyer.

The issue of denying or holding off on granting legal aid for asylum applicants has been recently brought before the Grand Court. In a case before the court in November, attorney Alastair David argued that many Cuban asylum applicants have not received a fair process in the Cayman Islands because they either have not received legal aid or did not receive legal aid until well into their process.

He also argued that the Immigration Appeals Tribunal did not sufficiently explain its reasons for denying their applications, making it difficult for applicants to properly appeal their cases.

In another appeal filed to the Grand Court in January, a Cuban asylum applicant argued that he had not received adequate legal assistance and had been required to prepare his own case, with little command of the English language.

“The Appellant is a Cuban National, who speaks little or no English. He has been required to conduct his own application to the Immigration Department, and subsequently Appeal to the Respondent, without the assistance of an attorney-at-law. He has been assisted by a Mackenzie friend, unqualified in law, and for whom English is a second language,” the Cuban’s writ states.

“The Appellant has not had his right of a fair trial protected, and the policy refusing to allow Legal Aid in [Immigration Appeals Tribunal] matters is, it is submitted, in contravention of Article 16 of the Refugee Convention.”

Asylum applicants in the Cayman Islands are first reviewed by a Department of Immigration officer, who conducts an intake interview and uses that information to determine eligibility for asylum status. If applicants are denied at this phase, their cases can then be appealed to the Immigration Appeals Tribunal. If the tribunal rejects these cases, applicants can then apply for legal aid and request judicial review by the Grand Court. The Grand Court cannot deny or grant asylum cases but can send applicants back to the Immigration Appeals Tribunal for further review.

The role of the Immigration Appeals Tribunal in asylum matters is currently under review.

The Immigration (Amendment) Bill, 2018, seeks to establish a Refugee Protection Appeals Tribunal, which is expected to take over responsibilities delegated to the Immigration Appeals Tribunal in reviewing rejected asylum applications. Training to establish the five-person board was expected to take place in February.

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