Seven Cuban migrants who successfully appealed the handling of their asylum cases before the Grand Court will find themselves back at square one and without the aid of a lawyer.
In a 10 May ruling, the court found the Immigration Appeals Tribunal, previously tasked with accepting or denying asylum applications, had not properly considered the men’s cases and had committed errors that amounted to a miscarriage of justice.
That decision means the men will have a second chance to make their cases for asylum before a forthcoming Refugee Protection Appeals Tribunal hearing – the Grand Court does not have the power to grant asylum but can evaluate the tribunal process based on points of law.
While the men were granted legal aid for their Grand Court appeal, they will not be afforded such services in future, according to attorney Alastair David, who represented them in court.
David had argued that previous denial of legal aid at the tribunal phase had put the men at a disadvantage, given their lack of understanding of Cayman Islands law, but the court did not support his argument.
“We lost the point about legal aid before the Grand Court,” David said. “So the situation is that there is no legal aid before the [Immigration Appeals Tribunal] or the Refugee Protection Appeals Tribunal.”
To prepare the men’s cases and represent them at the tribunal, which will make the final decision on whether to grant asylum, David said his fee would be US$3,000 per client.
During the asylum process, applicants are not granted the right to work. With the appeals process often extending for years at a time, that means the Cubans do not have an income to help pay their own legal fees.
The court’s 10 May ruling establishes that the right to free legal access is not absolute and that the state must consider the constraints of its public coffers when providing services such as legal aid.
“It is not incumbent on the State to seek through the use of public funds to ensure total equality of arms between the assisted person and the opposing party. The important thing is that there be a reasonable opportunity given for each side to present their case under conditions that do not place him or her at a significant disadvantage,” Justice Ingrid Mangatal stated in her judgment.
She added that the Chief Immigration Officer is not represented by a lawyer at the tribunal phase and, “therefore the appellants were not at any, or any substantial disadvantage, vis-à-vis the [Chief Immigration Officer] due to lack of legal aid”.
In August 2017, Chief Immigration Officer Wesley Howell made a series of recommendations to improve the asylum process for migrants. One recommendation was to establish a written policy and procedure manual to be given to migrants upon arrival, explaining Cayman’s asylum process. Howell did not respond to repeated requests for comment made since August 2017 on whether such a manual had been created.
Migrants continue to complain that they do not fully understand their rights in the Cayman Islands and that interpretation services are at times lacking.
Mangatal’s judgment points out that the men had the assistance of a translator and a medical doctor, who acted as a ‘McKenzie friend’ but who is not trained as a lawyer, to assist them with their cases at the tribunal stage.
David said the men now have two choices: to appeal the issue of no legal aid for a fee of $200 or to proceed to the tribunal either without representation or with a self-funded lawyer.
Justice Mangatal’s judgement states that the current system in Cayman neither violates Article 16 of the Refugee Convention, establishing refugees have free access to courts of law, nor Section 7 of the Cayman Islands Bill of Rights, establishing the right to a fair trial.
“… there is in my judgment, nothing about the system itself up to this point that has been demonstrated to be unfair. In my judgment, any potential unfairness is susceptible to control which the law provides by way of access retrospectively, to appeal to the Grand Court if the wrong approach or due process has not been observed,” Mangatal stated.
She added that “neither Article 16 of the Refugee Convention nor Section 7 of [the Bill of Rights] can be construed as to mean that the government is obliged to grant legal aid to every asylum seeker at each and every stage of their applicant and subsequent appeal process. There is no ideal in this world and public funds are scarce”.
Public funds are used to house and feed migrants throughout their asylum process. Migrants on supervised release have stated they receive $750 a month for housing and $160 a month for food and other goods.
The appeals process in such cases can last for years. Several applicants have been in the Cayman Islands for more than three years.
In response to training concerns for tribunal members regarding asylum matters, government is in the process of establishing a dedicated Refugee Protection Appeals Tribunal.
Crown counsel Michael Smith indicated in court that work is under way to get the tribunal operational. He said members received a week of training by immigration judges from the United Kingdom and that he was in the process of drafting rules of procedure for the new tribunal. Once those rules of procedure are approved, the tribunal will start hearing asylum cases, including those of the seven men from the Grand Court trial.
Government has not indicated when the tribunal will become operational, but Smith said on 10 May that it could begin hearing cases as early as late June.