Parts of Customs and Border Control Law incompatible with Bill of Rights

The Grand Court has ruled that Section 9 of the Bill of Rights covering ‘Private and family life’ must be considered by the Immigration Appeals Tribunal when determining whether a person can remain on island.

The case concerned a decision by the tribunal that refused a Residency and Employment Rights Certificate to an applicant with a criminal record.

The minutes of the decision did not make apparent whether the tribunal had considered the rights of the applicant or those of his wife and child, who have Caymanian status, and weighed them against the rights of the community in terms of public safety.

The court accepted that the plaintiff and his family’s rights under section 9 of the Bill of Rights can be affected by the decision whether or not to grant a Residency and Employment Rights Certificate.

“I am satisfied that s.9 [Bill of Rights] arguments in a RERC application or in cases where the remaining parent or child is a Caymanian will come into play and they involve the weighing up of these opposing rights,” Justice Richard Williams wrote in his judgment.

The case shows how public officials must navigate and find the correct balance between the competing rights of individuals and the community.

Williams stated that the Immigration Appeals Tribunal should have considered if its decision to refuse the application was proportionate both with regard to “the nature and extent of the interference with the plaintiff’s family life and the purported grounds for the refusal”.

Even if the tribunal had considered the Bill of Rights, the judge said, “it was obligated to illustrate that in its written decision”.

Law firm HSM Chambers, which appeared on behalf of the successful plaintiff, said in a statement, “It must follow that such considerations must be applied by other agencies of the Cayman Islands Government when individuals’ rights are engaged and will … potentially be infringed.”

Incompatible with Bill of Rights

The Grand Court also held that a section of the law that automatically designates an individual as a “prohibited immigrant”, in this case because of a court sentence of more than one year, is incompatible with the Bill of Rights.

In relation to the relevant Section 82 of the repealed Immigration Law and Section 109 of the current Customs and Border Control Law, Williams stated: “The automatic designation of [Prohibited Immigrant], with a consequence of what is in effect an automatic deportation, in the absence of any provision enabling a review to be conducted taking into account [Bill of Rights] considerations in particular the right to Family Life, makes s.82 of the Law and s.109 of the Customs Law incompatible with the Bill of Rights.”

Lawyers for the plaintiff argued that the section of the law that automatically designates certain individuals as “prohibited immigrants” was in effect a “removal order by operation of law” as it does not come with any of the protections afforded to a deportee under other sections of the law.

Typically, a deportee is notified and provided with information about the nature of the alleged facts on which the deportation order is made. This is followed by a Summary Court hearing.

In contrast, anyone who is automatically designated as a prohibited immigrant is not afforded the right to a hearing and to make submissions or offer evidence.

One consequence of this decision is that there are likely to be more deportation hearings involving individuals who are foreign nationals and who commit crimes of sufficient seriousness, HSM Chambers said.

Alastair David, an HSM associate who represented the plaintiff, said, “It is hoped that the Department of WORC, the Department of Customs and Border Control, and the Immigration Appeals Tribunal will consider this judgment very carefully and put in place systems which will ensure that all individuals’ constitutional rights are considered.”

David said, “Equally, it is hoped that the Law will be amended to ensure that the rights of all individuals will be respected.”

Because the relevant legislation came into effect after the Constitution, the Grand Court was not able in the case to consider re-writing legislation to make it compliant with the Bill of Rights.

It will be up to the legislature to amend the law to ensure compliance.

HSM Chambers said it was the second Grand Court judgment in less than a year in which an appellant successfully argued that a decision by the Immigration Appeals Tribunal was defective.

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