Seven Cuban migrants who were initially denied asylum will have their cases heard again after the Grand Court ruled on Friday that government did not properly consider their applications.
The judgment sets guidelines for how asylum cases should be handled in the future.
Until now, the Immigration Appeals Tribunal has failed to spell out the threshold asylum seekers must meet in order to prove their refugee status, according to the judgment. Past tribunals may have applied the “balance of probabilities test” in asylum cases – meaning that migrants had to show that, more likely than not, they are deserving of asylum status.
The judgment states that moving forward, the tribunal should apply a “reasonable degree of likelihood” test, which means migrants will only have to show that there is a “reasonable” chance they would be subjected to rights violations if returned to their home jurisdiction. This is a lower burden of proof for migrants to receive asylum.
The judgment stems from seven Cubans landing in Cayman years ago, and having their asylum applications denied by the Immigration Appeals Tribunal in 2017.
The migrants then appealed their cases to the Grand Court, where attorney Alistair David argued last November that they did not receive fair hearings because they did not receive legal aid and because the Immigration Appeals Tribunal did not sufficiently explain its reasons for denying their applications.
David also argued that rights violations could be in store for the seven migrants if they are returned to Cuba.
The attorney explained that Cuba is a place that punishes political dissent and disloyalty, imposes arbitrary punishments on people, has harsh prison conditions, and interferes with other basic rights.
David said one of his clients – who has been in Cayman for several years – was imprisoned in Cuba for five months for refusing to work for the government. His client had refused to go into the Cuban military because he said he was against the government.
Crown counsel Smith, who represented government, agreed with David that Cuba indeed has an oppressive government – a “repressive Marxist dictatorship”, he called it.
However, not everyone who leaves Cuba does so for political reasons, he said. Some leave for economic reasons, including one appellant who apparently said he was planning on going to Honduras and travelling to the US from there.
“Furthermore,” Smith said, “simply not liking your country’s government does not make you, a priori, a refugee. Otherwise, Cayman would be full of UK asylum seekers fleeing Brexit and US asylum seekers fleeing Trump.”
Smith then addressed David’s argument that the Immigration Appeals Tribunal did not sufficiently explain its reasons for denying the Cubans’ applications.
While admitting that the three- to four-page decisions – compared to decisions that are typically 20 pages or more in the UK – are not “exemplars of judicial drafting”, he said that they were sufficient in explaining why the Cubans should be denied asylum.
For the decisions to be unlawful, the Cubans would have to prove that they were “substantially prejudiced” by the lack of details in the judgments, Smith said.
Moreover, having the Immigration Appeals Tribunal provide more details would not have altered their decisions, he said.
Smith also addressed David’s argument that the Cubans did not receive a fair hearing because they were denied legal aid.
He said the Cubans were provided translators for the hearings so they could understand what was going on, and that three of them were represented by a Cuban doctor who lives here. The doctor does not have a law degree.
Grand Court Justice Ingrid Mangatal agreed with David that the Cubans did not have fair hearings in front of the tribunal. The tribunal did not state what thresholds the Cubans should have met to receive asylum, nor did it define important terms to decide whether the migrants would be subject to rights violations if sent back to Cuba.
“In my judgment, the tribunal has committed important errors in failing to state the burden and standard of proof correctly,” she stated, adding, “The problem was compounded because there was a lack of directions as to the definition of persecution, when prosecution can amount to persecution, the special care that has to be given to aspects of the credibility of asylum seekers, past persecution and imputed political belief.”
The justice added that these errors were even more detrimental to the Cubans’ receiving a fair hearing because the migrants did not have access to legal aid.
However, Justice Mangatal stopped short of declaring that everyone seeking asylum in Cayman should have legal aid.
“It is the case that the Refugee Convention provides that a refugee should have free access to the courts of law,” she wrote in her judgment. “However, in my judgment, this does not amount to an obligation on the Cayman Islands to provide legal aid to asylum seekers at the tribunal stage.”
The justice acknowledged that the other party – in these cases, the Chief Immigration Officer – also does not have legal representation during tribunal stages.
“Therefore, the appellants were not at any, or any substantial disadvantage, vis-à-vis the [Chief Immigration Officer] due to a lack of legal aid,” the justice wrote. “The appellants all had the assistance of a translator and were permitted to present their case and supporting [evidence] to the tribunal.”
“There is no ideal in this world, and public funds are scarce,” the justice added. “There must be the balance between fulfilling the Cayman Islands’ Refugee Convention obligations and the many needs competing for the allocation of scarce public funds.”
Justice Mangatal noted that this matter is the first written local judgment dealing with asylum law, and she thanked both parties for making such thorough submissions in this precedent-establishing case.