As legislators get set to debate law changes introducing mandatory vaccinations, at least one local immigration expert says the proposed laws go further than initially expected and could be challenged in court.
Amendments to the Immigration (Transition) Bill, published 23 Sept., which specifically pave the way to mandate expatriate vaccinations and create amendments to the Customs and Border Control Bill – to require vaccination for anyone seeking to land in and remain in the Cayman Islands – is expected to be debated in Parliament Monday.
Over the weekend those against the move took to the streets in protest and a second round of demonstration is planned for Monday.
Law changes could be challenged
Ahead of that debate, attorney Nick Joseph, of HSM Chambers, discussed with the Compass what the implications are for Cayman.
Having reviewed the planned law changes, he said he disagreed with the provisions set out in the legislation.
“The freedom to choose medical procedures is important, and should only be curtailed to the extent necessary and reasonably justifiable in a democratic society. The application of mandates should not appear (or be) arbitrary, and we look forward to greater comfort as to the basis and extent of their proposed application” Joseph said in a statement to the Compass.
He suggested the law changes, as they stand, are open to judicial challenge and they believe there could be grounds for that, leading to a declaration of incompatibility with Cayman’s Bill of Rights.
“Other implications include damage in the eyes of the international community, with economic and reputational impact. Certain individuals may be forced to challenge the legislation, or may simply choose to leave. There are substantial investors who fall into this latter category and who have already been voicing significant concerns,” Joseph stated.
Initially, government’s talk of mandatory vaccinations had been restricted to work permit holders and, it had been anticipated by many, that the requirements would attach to persons applying for a first work permit, “effectively a condition of entry on those who do not yet, but intend to, reside here”.
“What has however been produced in the Bill indicates that the requirement will attach to not only those who are seeking to come for the first time, but also to broad categories of person who are already here. As drafted (subject to exemptions) almost everyone seeking an immigration permission, including renewing an existing permission or amending an existing permission to add or remove dependents, will have to provide proof of vaccination either for themselves or a prospective dependent, depending on the circumstances,” the attorney shared.
He pointed out it was worth noting that vaccination is not currently proposed to be a requirement of persons applying to become Caymanian, “it is assumed on the basis that such persons are usually already Permanent Residents, and accordingly already settled in the Islands”.
Further divides in the community
Joseph contended that, as drafted, the Immigration (Transition) Bill may particularly “fail for lack of justification if similar treatment is not applied to others (including in some frontline roles and/or Caymanians)”.
“It would appear to be difficult to contend that mandatory vaccination is reasonably justifiable for an established expatriate online worker working (remotely) from their own home, but not for a Permanent Resident driver moving persons to quarantine, or a Caymanian healthcare worker testing persons for COVID. We will have to see what steps Government takes in that regard,” he said.
However Deputy Premier Chris Saunders, speaking on the Compass Facebook talkshow The Resh Hour on 29 Sept., made it clear he will not support any mandatory vaccinations for Caymanians.
He said countries, including the US, are now requiring vaccinations and the law change is no different, to protect the local community.
“We do recognise that there are some Caymanians, whether it be for medical reasons or religious reasons, that would be unable to take the vaccine,” he said, adding therefore government has the responsibility to take steps to protect them.
Our job is to maintain a vaccination rate that’s going to keep our people safe and more importantly, our children safe” – Deputy Premier Chris Saunders.
“Our job is to maintain a vaccination rate that’s going to keep our people safe and more importantly, our children safe,” the Deputy Premier said.
However, when it comes to vaccinations for frontline workers and those in the civil service, many of whom are Caymanian, Saunders said that is a matter for the Governor and Deputy Governor.
On this issue of (Public Health) what is good for the Goose is good for the Gander. If vaccination is necessary and proportionate for the wellbeing of the community, then so far as reasonable, it must be reasonable and proportionate for a wide range of participants in the community. This may include temporary participants”.
Joseph said he does not think casting legislation so that it only affects certain categories of expatriate, without reasonable measures that apply to others, “risks alienating sectors of the community in such a manner as to create divisions, real or imagined, between Caymanians and Expatriates”.
On this issue of Public Health, he contends, “what is good for the Goose is good for the Gander. If vaccination is necessary and proportionate for the wellbeing of the community, then so far as reasonable, it must be reasonable and proportionate for a wide range of participants in the community. This may include temporary participants”.
He questioned whether there was an alternative path forward.
“Are there mechanisms available that could bring up the numbers of vaccinated persons in the community without the deprivation of choice, and have these options been explored, attempted, and exhausted? If the Government has any alternative, it may be compelled to pursue that which causes the least practicable infringement on the rights of those who already call Cayman home,” he said.
Will it be effective?
Joseph said the test of the legislation will come in its application.
Current vaccine total (1 Oct.)
55,200 or 78% – one dose
51,759 or 73% – two-dose course
“To be enforceable and to survive challenge, any attempt at enforcement will need to be not only lawful, but reasonably justifiable. When and if the Bill passes, and even then, whether it meets the lofty standard required for effective enforcement will depend on multiple factors, which will vary from case to case. The standard to be met will be less (i.e. enforcement easier) where a person is not yet a resident of Cayman,” he said.
The attorney pointed out that a significantly greater difficulty in enforcement may arise where an unvaccinated person is already a resident, let alone a Permanent Resident (whether on the basis of the points system or as the spouse of a Caymanian).
“We expect that if passed, enforcement will be challenged, and anticipate various particular circumstances in which a challenge would have some prospect of success,” he added.
For his part, Joseph contended as written, and in the overall context known to the HSM team, they do not agree with the changes.
“Of course all lawyers have views, and by their nature, having consensus agreement between lawyers is hard to achieve. The issue is polarizing, and views often seem firmly on one side or the other. I, and others, have concerns. We are however cognizant of the fact of what may be an imminent Public Health Emergency (as a comparator, Bermuda’s death toll from Covid appears to be growing quickly and is now reported at 72) and that we already live with Mandatory Vaccination as part of our established systems. They form part of the public education system,” he said.
An important distinction can however be drawn between mandatory vaccinations for school children and the present circumstances, he argued as, almost all children attending school, whether public or private, have to be vaccinated against a number of diseases.
“The requirement exists whether or not their parent happens to work for Government. Fairness is an important factor. It appears disproportionate (as the Bill is drafted) for a 15-year resident mother of a Caymanian child to have to prove vaccination in order to remain in Cayman with her Caymanian child, but for others (in future) to be able to come on vacation (and at least temporarily be part of the community) without being vaccinated,” he said.
Ultimately, he said, the question to be answered is whether or not mandating vaccination is reasonably justifiable.
“As with Freedom of Speech, Freedom from Vaccination (effectively Freedom of Choice) may not be absolute. The virus has no regard for creed, colour or immigration status, and accordingly efforts to confront the threat based on any one of those creates some legal and ethical discomfort,” he added.
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