The permanent residency points system does not give sufficient weight to the individual circumstances of an applicant, the Court of Appeal declared this week.
As a result, existing legislation is operating against parts of the Cayman Islands Constitution which say private and family life are protected.
“We cannot dictate how parliament should remedy the incompatibility,” appeals court president Sir John Goldring said in his judgment on Thursday, 30 March.
But he suggested the immigration department adopt a UK model which accepts that a points system is not comprehensive but allows for exceptional cases.
The decision came about during the case of Joey Buray and Leon D’Souza who applied for permanent residency in the Cayman Islands in 2017 and 2018.
Both failed to achieve the necessary 110 points as prescribed by Cabinet and arrived in appeals court after losing a string of appeals against the decision and related matters of law.
Private life
Representing the men, Alastair David of HSM Chambers, argued that they had established a private life in Cayman which would be disrupted after failing to obtain permanent residency.
The Immigration Appeals Tribunal did not consider that factor, he said, adding that was contrary to section nine of the Bill of Rights within the constitution.
The men did not win their appeal, because the decisions made in their cases were, according to Goldring, “proportionate and consistent” with the Bill of Rights.
He added that “even if the legislation had allowed consideration of section nine other than by an award of points, it could have made no difference in light of the cases they advanced.”
However, their case led to an in-depth discussion of the contradiction between the laws surrounding the points system and the constitution.
Judge Goldring concluded that the Immigration (Transition) Act (2022 Revision) which describes the points system does not provide a “comprehensive code” for proportionality.
Six years
Speaking after the judgment, David said it was “gratifying” to see the Court of Appeal agree with his submissions.
“This has been something which HSM Chambers has been raising concerns with for over six years,” he said.
The law firm, in a press release, said the decision will likely mean the government will have to amend the immigration law to make it compatible with the Bill of Rights.
Meanwhile it will have to provide a revised legal framework for the consideration of pending and future permanent residency applications, it said.
David stressed that the judgment should not be viewed as meaning that all expatriates will be able to obtain permanent residence in the Cayman Islands.
“Subject to any legislation change, I envisage it will mean that there will be an increase in numbers of expatriates who can stay past their notional roll over date.”
He said that extensions would likely be on the basis of their strong family life or private life connections which they have established in the Cayman Islands.
Under usual circumstances, anyone who fails to achieve permanent residency and has no other way to remain, has to leave the Cayman Islands for a year.
The points system
The points system is set out in the ‘Permanent Residence Assessment’ in the immigration regulations. This sets out nine factors and a deductible component.
The nine factors award points for:
Factor 1 – Occupation: maximum 30 points.
Factor 2 – Education, Training and Experience: maximum 25 points.
Factor 3 – Local Investments: maximum 30 points.
Factor 4 – Financial Stability: maximum 30 points.
Factor 5 – Community Minded / Integration into the Caymanian Community: maximum 20 points.
Factor 6 – History and Culture Test: maximum 20 points.
Factor 7 – Possessing Close Caymanian Connections: there is a maximum of 100 points for certain Cuban nationals. 40 points are awarded in respect of an applicant who is the parent, son or daughter of a Caymanian, 20 points for an applicant who is the brother, sister or grandparent of a Caymanian, provided the applicant has not received 40 points by virtue of being the parent, son or daughter of a Caymanian.
Factor 8 – Demographic and Cultural Diversity: maximum 10 points.
Factor 9 – Age Distribution: maximum 10 points.
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It’s like saying that illegal squatters have a right to stay in your property. I think it stretches the constitutional principles beyond their implied scope.
So not really significant. It basically puts a ‘special circumstances’ box on the decision form. All the board has to do in 99% of case is fill it in as ‘no special circumstances (connection to the Islands, or whatever other special circumstance the applicant wishes to suggest) compared to other persons also living here for a similar length of time and scoring similarly on the PR points assessment, so the PR points assessment outcome stands’. (Just as it did in this particular case.) If there are say 1% of cases then having that box isn’t a big problem. Things like ‘despite their high score that they are a convicted murderer with multiple other nationalities with rights of abode in other safe countries results in a special circumstance of no PR.’ Maybe less than 1% of applicants.
Sad indeed, and a Ruling which has significant ramifications for these Islands. For too long, successive political directorates have been “asleep at the wheel” in relation to Immigration reform. Now the “chickens are coming home to roost”, and our decision-makers are caught flat-footed with the soft under-belly exposed!!. Prayers that we will get out of this quagmire.