Judicial Review of Permanent Residency Applications in the Cayman Islands

23 June, 2017

 


There has been considerable speculation in the media recently regarding the backlog of permanent residency (PR) applications.

 

To date, the Caymanian Status and Permanent Residency Board and the Chief Immigration Officer of the Cayman Islands have failed to provide decisions on an estimated 1000 applications under the Immigration Law for PR. These unanswered applications are those which have been submitted since the introduction of a revised PR system in 2013. The failure to make a decision on all but three of these applications has created an almost insurmountable backlog. Some of the applications have been waiting in excess of three years for a decision.

 

Background

 

The right to reside permanently in the Cayman Islands has been a live political topic since the creation of the ‘rollover policy’ in 2004. That policy required work permit holders to leave the Islands after seven consecutive years of residence. However, workers who were able to remain longer than eight years[1], were granted the statutory right to apply for PR, if they satisfied certain criteria. Until January 2015, grants of permanent residency were awarded or declined on the basis of a points system implemented in the Immigration Regulations. However, since then no grants of PR have been made. It has been suggested that one of the reasons behind the cessation of decisions was due to difficulties with the first criterion of the ‘new’ points system introduced via the Immigration (Amendment) Regulations in 2013, namely the ‘Occupation’ (or employment) factor.

 

Under the 2013 revision of the points system, ‘Occupation’ was split into two categories;

 

  1. Current Occupation: awarding a maximum of 15 points, dependent upon the current demand for the occupation in question, which was measured based on the ratio of Caymanians to non-Caymanians in the labour market;

 

  1. Priority Occupation: awarding an additional number of points, up to a maximum of 15, if an occupation was one which was identified as being an occupation required for the advancement of national, economic, cultural or social objectives on a long term basis.

 

Unfortunately, it appears that the category of “priority occupation” was never properly defined in law. Therefore, it was impossible to adjudicate on applications under that criterion, which resulted in the current stagnation. The points system was altered in January 2015 via an amended version of the Immigration Regulations, which attempted to resolve this issue, by making the award of points for ‘priority occupations’ discretionary. This makes it possible to decide applications without the need for a list of what is, or is not, a priority occupation. Despite this change, the backlog of applications has still not diminished, nor has a list of priority occupations been created. Until such a time as a list of priority occupations is developed, suitable applicants will still be deprived of the potential advantage of an uplift by 15 points.

 

Recent Decisions of the Grand Court

 

Later in 2015 the application and transparency of the points system was called into question by the Chief Justice Anthony Smellie in his ruling in In the Matter of an Application for Permanent Residence by Hutchinson-Green and In the Matter of an Application for Permanent Residence by Racz[2]. This caused the government to commission a legal consultant’s report, known colloquially as the Ritch Report. Whilst the content of the report has not been made public, shortly after delivery in February 2017, government implemented the Immigration (Amendment) Regulations 2017. These Regulations award all current occupations the maximum 15 points permitted, but have not resolved what is, or is not, a priority occupation.

 

Constitutional Rights Issues:

 

In a 2016 decision of the UK Privy Council, the highest appeal court for British Overseas Territories, it was decided that a delay of more than one year for the consideration of an immigration application under Antigua and Barbuda’s Constitution Order, was outside of reasonable time limits and unlawful. Whilst not of direct relevance to the consideration of applications for PR, this decision does give an indication of the Privy Council’s view that delays of over one year on immigration decisions can be unlawful as a fetter on an applicant’s legitimate expectations[3].

 

In addition, whist states do have the ability to implement their own laws to control immigration, it is generally accepted law that this must be balanced against the human rights and freedoms of economic migrants. Migrants who have settled in a country for significant periods of time and developed strong ties with a community, may have their rights breached by not being granted leave to remain. This is particularly so in relation to children who have spent large periods of their life in a host country[4]. The delay in making decisions on PR has allowed many applicants to accrue more than ten years of residency, surpassing generally acceptable international benchmarks. This means that human rights arguments could arise, should a negative decision on PR ultimately be made.

 

Mechanisms for Resolution

 

Judicial review is the legal process whereby an applicant with sufficient interest in a decision or action of a public body can ask the Grand Court to review the lawfulness of a decision, action or failure to act in the exercise of a public function. Decisions of government can be challenged on the basis of:

  • Illegality;
  • Irrationality;
  • Procedural impropriety; or
  • Proportionality.

 

The remedies available in applications for judicial review are:

  • A mandatory order to require a public body to carry out its legal duties;
  • A prohibitory order to restrain a public body from acting beyond its powers;
  • An order to set aside a defective decision;
  • A declaration setting out the legal rights and obligations between parties;
  • Injunction;
  • Damages or compensation for losses sustained.

 

Since the Caymanian Status and Permanent Residency Board is a body that exercises a public law function, its decisions (or lack thereof) are challengeable by way of judicial review. To date, applications for judicial review have been made by three applicants on the basis of the failure of the Caymanian Status and Immigration Board to make a decision on their applications. The applicants sought judicial review seeking to compel the Board to make a decision. They also claimed compensation for the expenses and losses suffered through the unreasonable delay. In each of these three cases PR was awarded prior to the hearing, although the applicants are considering whether to continue their claims for damages.

 

It is clear from the above that the PR system is in need of significant review and this is likely to be imminent. In the meantime, applications for permanent residency can be navigated with the advice of experienced attorneys. Broadhurst has many years of expertise in PR applications and associated litigation. If you have any queries on the above or need assistance in relation to a permanent residency matter, please contact Kyle Broadhurst at kyle@broadhurstllc.com or Leyla Jackson at leyla@broadhurstllc.com.

 

This publication and the material on this website was prepared for general information purposes only to provide an overview of the subject matter. It is not a substitute for legal advice nor is it legal opinion and should not be taken as such. It deals in broad terms only and is subject to change without notice. If you require legal advice, please contact us and arrange a consultation.

 

 

[1] Via key employee status or other legal means.

[2] 2015 (2) CILR 75.

[3] Oliveira v The Attorney General of Antigua and Barbuda [2016] UKPC 24.

[4] Maslov v Austria: ECHR 23 June 2008; Gul v Switzerland ECHR 19 February 1996.




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