Between: Joey Delosa Buray First Appellant Leon Sunil Carmo D'Souza Second Appellant v Immigration Appeals Tribunal First Respondent and Attorney General of the Cayman Islands. Second Respondent
| Jurisdiction | Cayman Islands |
| Judge | Sir John Goldring,John Martin,Sir Richard Field |
| Judgment Date | 30 March 2023 |
| Docket Number | CICA (Civil) 17 Appeal No of 2022 |
| Court | Court of Appeal (Cayman Islands) |
and
THE RT HON Sir John Goldring, PRESIDENT
THE HON John Martin KC, JUSTICE OF APPEAL
THE HON Sir Richard Field, JUSTICE OF APPEAL
CICA (Civil) 17 Appeal No of 2022
(G 52/21 & G 81/21)
IN THE COURT OF APPEAL OF THE CAYMAN ISLANDS
ON APPEAL FROM THE GRAND COURT OF THE CAYMAN ISLANDS
CIVIL DIVISION
Mr Alastair David of HSM Chambers for the Appellants
Ms Claire Allen of the Attorney General's Chambers for the Respondents
This is the judgment of the Court to which all of the members have contributed.
Many people wish to work in the Cayman Islands. Many of those permitted to do so wish permanently to remain there when their permit to work has expired. Unsurprisingly, the Government of the Cayman Islands has determined it is necessary both to control the number of work permits and the number of those subsequently granted permanent residence. In broad terms, a person may, after the eighth anniversary of being granted a work permit apply for permanent residence. In order to obtain such residence, such a person must attain at least one hundred and ten points on the basis of a Cabinet prescribed points system. If he fails to do so, he may appeal to the First Respondent. If that appeal fails permission to reside on the basis of his immigration permission ceases at its expiration.
The First and Second Appellants are respectively Philippine and Indian nationals. Each was granted a work permit. On their expiration, they applied for permanent residence. They both failed to achieve 110 points. Their subsequent appeals to the First Respondent were dismissed. Their appeals to the Grand Court on matters of law were dismissed by Walters J (Ag). It is against his judgment that they now appeal. It is the case of each Appellant that he has established a private life in the Cayman Islands, that the First Respondent's failure to consider that renders the decisions to refuse their applications for permanent residence contrary to their rights under section 9 of the Cayman Islands Bill of Rights and that their cases should be remitted to the First Respondent for reconsideration. It is further submitted that the statutory provisions are incompatible with section 9 of the Bill of Rights.
There is a secondary issue, namely whether there was procedural unfairness in the application of the statutory provisions to one or both of these Appellants in that the questions and their answers in the history and culture test (factor six of the Cabinet prescribed points system) were not disclosed to them.
In granting leave to appeal the President stated:
“ This proposed appeal raises important issues of principle regarding the interplay between the points system and section 9 of the Cayman Islands Constitution. It also raises issues with respect to disclosure in immigration appeals. These are matters which in my view justify consideration by the Court of Appeal.”
The relevant law at the time each of the Appellants applied for permanent residence was the Immigration Act (2015 Revision), their respective applications having been made under section 30(1) of that Act. The relevant law at the time of their appeals to the First Respondent was section 37 of the 2018 Act, (entitled “ Persons legally and ordinarily resident in the Islands for at least eight years”) and, as material, is in identical terms to the Immigration (Transition) Act (2021 Revision), (“the Act”) to which henceforth we shall refer.
Sections 56–66 of the Act set out the process by which an employer can apply for the grant and subsequent renewal of a work permit for an employee. In short, when a person is considering moving to the Cayman Islands to live and work, they may only generally do so if they are granted a work permit and may only remain while they hold such a permit. Neither the grant nor the possible periodic renewal of a work permit is guaranteed and such permits may only be granted for limited periods of time on the expiry of which an application must be made to renew them. A wide variety of factors are considered when an application for a work permit is made.
Section 66 sets the “ Term Limits” for those in the position of the Appellants. The term limit is nine years from the time a person first entered the Cayman Islands as a work permit holder or, if he entered as a visitor, he is granted a work permit (section 66(1)).
By section 37:
“ 37. (1) Any person who has been, and is legally and ordinarily resident in the Islands for a period of at least eight years other than —
(a) the holder of a Residency Certificate for Persons of Independent Means;
(b) the holder of a Residency Certificate for Retirees;
(c) the holder of a Certificate of Direct Investment or a Direct Investment Holder's (Dependant's) Certificate;
(d) the holder of a Residency Holders (Dependant's) Certificate;
(e) the holder of a Certificate of Permanent Residence for Persons of Independent Means; or
(f) a person who was granted permanent residence under any earlier law in circumstances analogous to paragraphs (a) or (b), may apply in the prescribed form and manner to the Board or the Director of WORC [Workforce, Opportunities, Residency Cayman Office] for permission for himself or herself, his or her spouse and his or her dependants, if any, to reside permanently in the Islands and such application shall be accompanied by the prescribed application fee, issue fee, dependant fee and the annual fee with respect to the first year.
(2) For the purpose of assessing the suitability of an applicant for permanent residence, a points system shall be prescribed by the Cabinet.
(3) In considering an application for permanent residence under subsection (1), the Board or the Director of WORC upon applying the criteria set out in the points system shall only grant permanent residence to all applicants attaining one hundred and ten points or more.
(4) Where an application under subsection (1) has been refused and the applicant…has appealed against such refusal and lost the appeal, the applicant is barred from re-applying under the provisions of that subsection and shall leave the Islands upon expiration of any period during which the applicant was allowed to work under section 66(4) unless the applicant is entitled to remain by virtue of any other provisions of this Act [our emphasis]; and such disbarment shall continue-in the case of a worker, until the worker re-qualifies under the criteria contained in this section having taken the break in stay required under section 66(1)…”
The points system referred to in section 37(2) is set out in the “ Permanent Residence Assessment” within Schedule 2 of the Immigration Regulations (2019 Revision) (“the 2019 Regulations”). It is a detailed, prescriptive document which sets out nine factors and a deductible component. (It is attached as appendix 1). 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.
There are deductible components to a maximum of 100 points. They relate to character, health, and the lack of a reasonably funded pension plan. Neither Appellant had any points deducted.
By section 21(1) of the Act, a person who is aggrieved or dissatisfied by a decision of the Board or the Director of WORC may appeal to the First Respondent. Section 21(6) requires the Board or Director to deliver the reasons for its decision to the First Respondent. By section 21(8)
“ An appeal…may be lodged on the ground, or grounds and no other, that the decision in question is—
(a) erroneous in law;
(b) unreasonable;
(c) contrary to the principles of natural justice; or
(d) at variance with the Regulations.”
Appeals take place on paper, albeit there is a discretion to call witnesses (section 22). The First Respondent must take into account the reasons for the Board's or Director's decision and the detailed grounds of appeal. Section 22(4) and (5) state that:
“ (4) Where at a hearing on grounds the…[First Respondent]…determines that at least one of the grounds…has been made out the [First Respondent] shall proceed to a re-hearing of the original application which was the subject of the appeal…
…(5) [It]…shall do so by way of a hearing de novo and shall take into account any fresh evidence put forward by the appellant or the Director…or the Board that may have arisen in relation to the parties which is submitted in writing.”
By section 66(4), a person who has applied for permanent residence may apply to the Director of WORC for permission to continue working during the currency of his application for permanent residence. Section 66(8) deals with the position of someone who has been refused permanent residence and whose appeal rights have been exhausted, on the face of it, the position of the Appellants....
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