A woman whose marriage broke down after she reported allegations of domestic abuse against her husband faces having her Permanent Residence revoked, potentially forcing her to leave the Cayman Islands, according to court documents.
Anneisha Thomas, 43, from Jamaica, is seeking to challenge immigration laws that compel officials to cancel her rights to live and work in the territory following the disintegration of her 8-year marriage to a Caymanian.
Thomas, who has lived in Cayman since 2011, aims to bring a human rights case challenging legislation that states anyone who has a Residency and Employment Rights Certificate as a result of marriage automatically forfeits those rights if the marriage breaks down, regardless of the circumstances.
Her attorneys say the law is a disincentive for victims of domestic violence to report the crime and unfairly discriminates against women who are more likely to be victims of physical abuse in a marriage.
An application for legal aid to bring the case has been denied by the Director of Legal Aid on the basis that she does not believe Thomas has sufficient prospects of success, leaving the case and Thomas’ ability to stay in Cayman in jeopardy.
The Caymanian Status and Permanent Residency Board has already indicated that it believes it has no discretion to consider the circumstances under which the marriage broke down.
“The position of the Board is that irrespective of the fact that the appellant is a victim of domestic violence, her [residency certificate] must be revoked and if she has no other means of remaining in the Cayman Islands, which she does not, she has to leave the Cayman Islands,” a court filing from Thomas’ attorneys indicates.
Lawyers from HSM Chambers are challenging the Director of Legal Aid’s decision to deny funding for the case to proceed.
They argue, in a writ filed with the Grand Court, that the removal of her Permanent Residence and her potentially having to leave the Cayman Islands, in these circumstances, amounts to an infringement of rights guaranteed under Cayman’s Constitution. Specifically, they claim, the Immigration Act, in this aspect, is incompatible with the Bill of Rights, which guarantees freedom from discrimination and the right to a private and family life.
HSM, in its court filing, asks a judge to overturn the decision to reject Legal Aid and allow funding to be granted so she can file a claim challenging the relevant section of the Immigration Act.
Important implications
Alastair David, who is representing Thomas, said the case had important implications for basic human rights and for the prevention and detection of crime. He suggested the law, effectively, encourages woman to stay in abusive relationships
“Any person in the situation that Miss Thomas finds herself in has a difficult decision to make,” he said.
“On the one hand, they can report the violence that they are suffering at the hands of their spouse to the police and see that person prosecuted but in doing so they know that they put their ability to remain in the Cayman Islands in jeopardy. On the other hand, they can remain in the abusive relationship thus putting themselves in potential danger,” he said.
David added that it was a “quirk” of Section 40 of the current Immigration Act that the Board appeared to have no discretion in the matter. He said the law required them to revoke the Residency and Employment Rights Certificate of victims of domestic violence irrespective of whether they wished to do so.
He said this was a further disincentive against the reporting of crime that left a vulnerable section of society in an even more vulnerable position.
“It is the appellant’s position that the Act in way that it is currently drafted discriminates against women, who are the predominate victims of domestic violence,” he saud.
“The Cayman Islands prides itself in the Constitution as being a caring community based on mutual respect for all individuals and their basic human rights, however the law as it is currently drafted prevents the board from showing the care and respect to victims of crime that they undoubtedly wish to do.”
Background
Miss Thomas first reported her husband Fred Boothe to the police in January, 2021, after he damaged her car “in a rage”, according to the circumstances of this case, outlined in the writ.
He was charged with criminal damage and barred from contacting her. But he is said to have breached the conditions of his bail and attacked her, been charged with assault and remanded in custody.
Following the incidents, Thomas was contacted by an immigration enforcement officer enquiring if she intended to reconcile with her husband. Her attorney’s responded that the marriage had “irretrievably broken down” and suggested a potential solution which did not require the Caymanian Status and Permanent Residency Board to revoke her Residency and Employment Rights Certificate.
In subsequent correspondence the Board indicated they rejected this option and set out their belief that the law gave them no choice but to revoke her residency certificate.
Following that determination, HSM Chambers submitted its application for legal aid for a Bill of Rights case challenging the law and seeking an interim injunction preventing Thomas’ residency rights from being revoked. No date has been set, at this stage, for a court to consider the matter.
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