Chief Immigration Officer v Ellington

• Jurisdiction: Cayman Islands
• Judge: (Goldring, P., Field and Morrison, JJ.A.)
• Judgment Date: 08 October 2020
• Court: Court of Appeal (Cayman Islands)

CHIEF IMMIGRATION OFFICER

and

ELLINGTON

(Goldring, P., Field and Morrison, JJ.A.)

Court of Appeal (Cayman Islands)

Immigration and Status — prohibited immigrant — compatibility of law with Bill of Rights — Immigration Law (2015 Revision), s.82, whereby person became prohibited immigrant, liable to immediate arrest and deportation, incompatible with Bill of Rights — no provision for respect for private and family life (BoR, s.9) — provisions cannot be interpreted so as to be compatible

Held, dismissing the appeal:

(1) There was nothing in the Law (and consequently the Customs and Border Control Law 2018) which provided for the family rights of someone in the respondent’s position to be respected. Once, as a result of his sentence of imprisonment, a person in the respondent’s position became a prohibited immigrant, he was liable to immediate arrest and deportation, without consideration of his s.9 rights. As the judge found, that was incompatible with the Bill of Rights. The court did not accept the appellant’s submissions to the contrary. There were problems with the submissions on s.74 of the Law. Section 74(3) required the Chief Immigration Officer to serve a written notice specifying when, within the next 14 days, the person unlawfully in the Cayman Islands “shall be removed.” It was, in substance, an order for removal within 14 days. That did not suggest a statutory intention to grant a discretionary power. Moreover, there was nothing to suggest any procedure which the Chief Immigration Officer or the person unlawfully in the Cayman Islands was to follow within the 14 days. There was no appeal process from the Chief Immigration Officer’s decision such as might have been expected if thesection was intended to confer a discretionary power. Although, in light of the court’s view on s.74, it was unnecessary to consider s.13(3)(c) of the BoR, having heard argument on the point the court would do so. It was clear that, under s.13(3)(c), someone in the respondent’s position was entitled to have his case reviewed by a competent authority prescribed by law. As the respondent pointed out, any review by way of judicial review would fall substantially short of the sort of procedure followed by the Immigration Board or the Immigration Appeal Tribunal under ss. 14 and 15 of the Law. However, judicial review would amount to an independent review of any decision taken by the Immigration Officer and have regard to the respect or otherwise of the respondent’s s.9 rights. That would amount to a sufficient independent review by a competent authority as required by s.13(3)(c). In respect of s.89, as the Governor had not made a deportation order under s.89, no question of the Governor’s consideration of the respondent’s s.9 rights therefore arose. The respondent’s liability to deportation arose under s.82(h). If the Governor were to exercise his powers under s.89, he would have to have regard to the person’s s.9 rights and any decision would be subject to judicial review, which would amount to sufficient review by a competent authority as required by s.13(3)(c). In respect of s.63, although “land” was widely defined, to interpret the section in the way the appellant submitted did not reflect the legislative intention. First, the section was said to relate to the Cabinet issuing permits to enter the Cayman Islands; secondly, it referred to a person being “admitted” on terms specified by the Cabinet, not remaining or residing; thirdly, if it were intended that the Cabinet had power to consider the cases of everyone who overstayed or was illegally in the Cayman Islands, the provision would plainly say so; and fourthly, while the court did not consider that the Cabinet would not seek to respect the constitutional rights of someone in the respondent’s position, there was nothing to suggest any procedure which the Cabinet or the person unlawfully in the Cayman Islands was to follow (paras. 72–79).

(2) In respect of the interpretative obligation under s.25 of the Bill of Rights, the court accepted that a declaration of incompatibility should be the last resort. However, the appellant was effectively inviting the court to amend specific sections of a complex piece of legislation involving many different and interconnected provisions. In substance, the appellant was asking the court to don the mantle of statutory draftsman in respect of a piece and area of legislation which was notoriously difficult, namely immigration, without having a detailed understanding of the possible overall consequences and implications of the suggested changes. Even where the provisions were unclear or ambiguous, s.25 of the Bill of Rights did not contemplate the court effectively becoming parliamentary draftsman in an area of considerable complexity with many possible unintended consequences. As to the appellant’s submission of a conflict between s.38(1)(c) and the regime under s.66, that seemed to ignore a significant difference between the provisions and the intention no doubt behind them. Section 38 concerned someone with permanent residenceconvicted of any offence against the laws of the Cayman Islands. Section 66 concerned someone who was not a permanent resident and had been convicted anywhere of an offence punishable by at least 12 months’ imprisonment. There was no conflict between them giving rise to unclearness and ambiguity as far as compatibility was concerned. This was not a case in which the court should embark upon rewriting the Law (and hence the Customs and Border Control Law 2018) so as to seek to make it compliant. That was best left to the legislature (paras. 81–83).

Cases cited:

(1)Ghaidan v. Godin-Mendoza, [2004] UKHL 30; [2004] 2 A.C. 557; [2004] 3 W.L.R. 113; [2004] 3 All E.R. 411; [2004] 2 F.C.R. 481; [2004] 2 FLR 600, considered.

(2)Nairne, In re, 2013 (1) CILR 345, considered.

(3)R. v. A, [2001] UKHL 25; [2002] 1 A.C. 45; [2001] 2 W.L.R. 1546; [2001] 3 All E.R. 1; [2001] HRLR 48, considered.

Legislation construed:

Customs and Border Control Law 2018, s.109(h):

“a person who, not having received a free pardon, has been convicted in any country of an offence for which a sentence of imprisonment of or exceeding twelve months has been passed otherwise than for non-payment of a fine.”

Immigration Law (2015 Revision), s.2: The relevant terms of this section are set out at paras. 20 and 21.

s.3: The relevant terms of this section are set out at para. 19.

s.15: The relevant terms of this section are set out at para. 69.

s.38: The relevant terms of this section are set out at para. 24.

s.63: The relevant terms of this section are set out at para. 26.

s.66: The relevant terms of this section are set out at para. 28.

s.67(1): The relevant terms of this subsection are set out at para. 30.

s.74: The relevant terms of this section are set out at para. 32.

s.82: The relevant terms of this section are set out at para. 22.

s.88: The relevant terms of this section are set out at para. 34.

s.89: The relevant terms of this section are set out at para. 35.

Cayman Islands Constitution Order 2009 (S.I. 2009/1379), s.9: The relevant terms of this section are set out at para. 37.

s.13: The relevant terms of this section are set out at para. 38.

s.19: The relevant terms of this section are set out at para. 39.

s.23: The relevant terms of this section are set out at para. 40.

s.25: The relevant terms of this section are set out at para. 41.

s.26: The relevant terms of this section are set out at para. 42.

Borders Act 2007 (c.30), s.32: The relevant terms of this section are set out at para. 47.

s.33(2)(a): “(2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach—(a) a person’s Convention rights . . .”

Human Rights Act 1998 (c.42), s.3: The relevant terms of this section are set out at para. 59.

The respondent was a prohibited immigrant.

The respondent was born in Jamaica and had lived in the Cayman Islands since 2007. He held a work permit. In 2013, he married a woman who had Caymanian status and they subsequently had a child who also had Caymanian status. In March 2014, the respondent was sentenced to two years’ imprisonment as accessory after the fact in respect of robbery. During his imprisonment he applied to the Caymanian Status and Permanent Residence Board for a Residency and Employment Rights Certificate (“RERC”). He was released from prison in February 2015. The Department of Immigration granted him a tourist visa. The respondent’s marriage broke down and in April 2016 the Board rejected his application for a RERC. In September 2016, the respondent was informed by an officer at the Immigration Department that he was a prohibited immigrant under s.82(h) of the Immigration Law (2015 Revision) and that his leave to remain under the tourist visa would cease in November 2016. In October 2016, the respondent married his second wife, who also had Caymanian status. He made a fresh application for a RERC. That application was rejected by the Board in April 2017. The respondent appealed to the Immigration Appeals Tribunal. The IAT agreed to a fresh hearing but refused to grant a RERC. The respondent filed a statutory appeal.

The respondent was granted permission to apply for judicial review of the September 2016 decision of the officer at the Immigration Department by which the respondent was designated a prohibited immigrant.

In the Grand Court, Williams, J. declared that s.82 of the Immigration Law (2015 Revision) and s.109 of the Customs and Border Control Law 2018 were incompatible with the Bill of Rights. The court ordered that the respondent’s application for a RERC be remitted to the Immigration Appeals Tribunal for reconsideration in line with the guidance of the court. The court also ordered that the temporary injunction preventing the removalof the respondent from the jurisdiction be extended until the conclusion of the reconsideration of the RERC application and any subsequent appeal...