The Court of Appeal has ruled that labelling non-Caymanian convicts who are resident in Cayman as ‘prohibited immigrants’ is incompatible with the Bill of Rights, which guarantees all residents the right to a private and family life.
The decision stemmed from a case involving Ian Fernando Ellington, a Jamaican national who was given a two-year prision sentence for his role as an accessory to a 2013 robbery of Chisholm’s Supermarket in North Side.
The appeals court issued its ruling earlier this month, dismissing an appeal by the chief immigration officer of the Cayman Islands over a Grand Court decision on the case.
Ellington, who at the time of his imprisonment was married to a Caymanian status holder and is father to a child who is also a status holder, applied to the Caymanian Status and Permanent Residency Board for a Residency and Employment Rights Certificate on the basis he was the spouse of a Caymanian.
After being released from jail in February 2015, the Department of Immigration granted him a tourist visa to enable him to reside in the Cayman Islands. On 23 April 2015, the board deferred consideration of his RERC application because he was facing burglary charges, which ultimately were not proceeded with.
In January the following year, his wife notified the board that their marriage had broken down. In April 2016, the board again deferred Ellington’s RERC application in the light of the burglary charges and later that month rejected his claim for a RERC on the basis that his marriage had ended.
In 30 Sept. 2016, an immigration officer informed him that he was a ‘prohibited immigrant’ under the Immigration Law and that his permission to remain, under the tourist visa, would cease on 11 Nov.
A prohibited immigrant, as defined by Section 82 of the Immigration Law and Section 109 of the Customs and Border Control Law, is a person who is not Caymanian nor a permanent resident, “who … has been convicted in any country of an offence for which a sentence of imprisonment of or exceeding twelve months has been passed”.
On 1 Oct. 2016, Ellington married his second wife, who also has Caymanian status and, two weeks later, he made another application for RERC.
The immigration board rejected this application, noting his immigration designation as a prohibited immigrant, and stating that it had “serious concerns with the character of the applicant and is of the opinion that his continued presence in the Islands is not in the best interests of the community as a whole”.
On 2 June 2017, Ellington appealed the board’s decision to the Immigration Appeals Tribunal.
Then, on 14 Sept. Acting Judge Carter granted Ellington permission to apply for judicial review over his designation as a ‘prohibited immigrant”, stating that he had permission to argue that section 82(h) of the Immigration Law was incompatible with the Constitution of the Cayman Islands.
Following a fresh hearing in August 2018, the Immigration Appeals Tribunal informed Ellington its members had unanimously decided to refuse to grant him RERC based on his criminal conviction.
On 8 Nov. 2018, Ellington filed a statutory appeal of the tribunal’s decision.
Failure to consider right to family life
Grand Court Justice Richard Williams, who heard the case, determined that the tribunal had failed to balance its requirement under section 9 of the Bill of Rights to consider the right to family life against the interests of public safety. The judge remitted the case back to the tribunal, stating that it had to consider section 9 when dealing with an application.
In his ruling on the chief immigration officer’s appeal of the Grand Court decision, Court of Appeal President Sir John Goldring determined that there was “nothing in the Law (and consequently the Customs and Border Control Law, 2018) which provides for the family rights of someone in Mr. Ellington’s position to be respected. Once, as a result of his sentence of imprisonment he became a prohibited immigrant, he was liable to immediate arrest and deportation, without consideration of his section 9 rights. That, as the [Grand Court] judge found, is incompatible with the Bill of Rights.”
The court also fund that section 82 of the Immigration Law (2015 Revision) was also incompatible with the Bill of Right.
The Court of Appeal upheld the Grand Court ruling and dismissed the appeal. Goldring stated in the decision, “In short, this is not a case in which, in my judgment, the court should embark upon re-writing the Law (and hence the Customs and Border Control Law, 2018) so as to seek to make it compliant. That is something best left to the Legislature.”
In a statement following the ruling, lawyer Alasdair David, of HSM, who represented Ellington, said, “It is hoped that this decision will lead to a much needed change in the Law which will lead to clarity in how the relevant authorities deal with Prohibited Immigrants. The Court of Appeal noted with some concern that there are no directives or rules governing Prohibited Immigrants and it is hoped that this will also be addressed shortly.
“Furthermore, it is also hoped that at the same time thoughts can be given to amending other sections of the Immigration Law which may be incompatible with the Bill of Rights.”