Dominguez v Immigration Appeals Tribunal

• Jurisdiction: Cayman Islands
• Judge: (Walters, Ag. J.)
• Judgment Date: 29 April 2022
• Court: Grand Court (Cayman Islands)

DOMINGUEZ

and

IMMIGRATION APPEALS TRIBUNAL

(Walters, Ag. J.)

Grand Court (Cayman Islands)

Immigration and Status — residency — residency and employment rights certificate — offender’s RERC revoked following conviction and imprisonment for drugs offences — Immigration Appeals Tribunal refused to reinstate RERC on basis that seriousness of offending outweighed other factors — in relation to rights under BOR s.9(1), Tribunal failed explicitly to consider relevant factors as to best interests and well-being of children and ties to Cayman Islands — Tribunal failed to carry out demonstrably proportionate and reasoned analysis of all relevant criteria — appeal allowed and matter remitted to Tribunal

Held, remitting the matter to the IAT:

(1) There was clearly an anomaly in the 2021 Act (and therefore the 2022 Act) with the inclusion of the words “original application” instead of “decision” which was what seemed to have appeared in the comparable sections of previous versions of the law. There could be little doubt that the use of the words “original application” in s.22(4) of the 2021 Act not only made no sense when read literally in the context of the current appeal but were also ambiguous when considered in the context of the other provisions relating to appeals and the appeal process where there was clear reference to a “decision.” Therefore, this was a case which required a purposive approach rather than a literal one, looking at the legislation as a whole and its legislative history. The court should look to internal and external aids to interpret the relevant section. The court noted that the words “original application” appeared in s.22(1)(a) which would require similar analysis. The relevant sections of the 2021 Act clearly provided for appeals from decisions of the Board and, in turn, from decisions of the IAT. The words “original application” made no sense when the appeal in question was one against a decision of the Board to revoke an existing RERC and was not an appeal against the rejection of an application for a RERC, in which context they did make sense. It did not make sense that the IAT should quash appeals in relation to decisions of the Board inrevocation cases such as this where there had been no original application that prompted the Board’s decision, leaving the Board to deal with the matter afresh. If that was the intention of the legislature there should have been some more specific statutory provision to that effect. The IAT referred to the memorandum of objects and reasons in the preamble to the Immigration (Amendment) (No. 2) Bill 2013 and pointed out that in relation to cll. 4–7 of the Bill, which were amending or replacing the relevant sections of the existing law, the intention was to overhaul and reform the appeal process with a view primarily to expediting the disposal of appeals to be heard by the IAT. The way to give effect to that intention and to make sense of s.22(1) and (4) of the 2021 Act was to read the words “original application” as meaning “original application or decision” depending on the context. To do otherwise would leave that aspect of the legislation unclear and open to absurd results. Therefore, it was not open to the IAT to quash the decision of the Board on the basis that the Board had made an error of law because there was no original application that prompted its decision (paras. 85–92).

(2) The IAT erred in law. The principles or criteria considered in Üner v. Netherlands ([2006] ECHR 873) were fundamental to an examination of whether ECHRart. 8 or BOR s.9 rights were to be applied in all cases. Although it might be appropriate for the IAT to refer to Amrollahi v. Denmark ([2002] ECHR 580) and the criteria set out therein, it was not appropriate for the IAT to do so in isolation from subsequent authority such as Üner which added to those criteria by making explicit the following two criteria: “the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled” and “the solidity of social, cultural and family ties with the host country and with the country of destination.” The reference to Amrollahi in such circumstances was incomplete and out of date and left the IAT in some difficulty demonstrating that it had approached the consideration of the appellant’s s.9 rights in a careful and informed way. This was clearly a case in which the additional criteria set out in Üner were relevant and directly applicable. They could not be implied into the Amrollahi criteria. They were some of the principal important controversial issues in this case and they should have been set out in the decision letter and considered in detail. They were not. There should have been a balance-sheet type exercise setting out the pros and cons followed by reasoned conclusions as to whether the countervailing factors outweighed the importance attached to the public interest in the removal of the appellant. As the Üner criteria were not specifically identified, it was not possible to determine whether sufficient weight was given to them and how they factored into the decision making process of the IAT to the extent required. The court did not accept that the application of the additional Üner criteria could be said to be implicit in the decision letter. To have to imply that they were considered seemed to undermine the decision letter to the point at which it must be in doubt as to whether it was rational, proportionate and procedurally fair asrequired by s.19 of the BOR. On that basis, the IAT erred in law (paras. 93–97).

(3) The IAT failed to engage in any meaningful analysis of what the appellant’s wife had said about the difficulties she and the children would face if they had to move to Colombia with the appellant or about the appellant’s ties with them in the Cayman Islands. On that basis, the IAT acted unreasonably (para. 99).

(4) In relation to the appellant’s argument that the IAT placed too much weight on the seriousness of the appellant’s offences, the court observed that it had been said by the House of Lords (in EB (Kosovo) v. Home Secy.) that it would rarely be proportionate to uphold an order for removal of a spouse if there was a close and genuine bond with the other spouse and that spouse could not reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order was to sever a genuine relationship between a parent and child. The IAT had failed to carry out a demonstrably proportionate and reasoned analysis of all the relevant criteria (paras. 100–101).

(5) The court did not consider that the Board and the IAT should be regarded as specialist tribunals and experts in their field such that the court should be slow to interfere with their decision making. The activities of such bodies required heightened scrutiny by the court (para. 104).

(6) It was surprising that policies for the Board and the IAT had not been put in place. Sections 14(7) and 18(6) of the 2021 Act provided that the Board and the IAT had power to regulate their own policies and procedure. The absence of such policies and procedures did not necessarily mean that decisions of the Board and the IAT were unreasonable. However, their absence made decisions susceptible to criticism in that, without a clear framework establishing and setting out how these bodies approached their statutory role and particularly the exercise of statutory discretion, it was difficult to understand how decisions had been taken, on what basis, whether they were reasonable and proportionate and whether they were consistent. The court did not find that the absence of policies and procedures itself meant that the decision in this case was unreasonable. However, for the reasons given, the IAT did err in law by failing to apply the correct and complete legal principles to its assessment of the s.9 rights of the appellant and, to the extent that it did apply incomplete and outdated legal principles to that assessment, it did not do so in a meaningful, balanced way and acted unreasonably. The matter should be remitted to the IAT for determination taking into account the issues that had been raised before the court and covered in this judgment (paras. 105–111).

Cases cited:

(1) Ali v. Home Secy., [2016] UKSC 60; [2016] 1 W.L.R. 4799; [2017] 3 All E.R. 20; [2017] INLR 109; [2017] Imm. A.R. 484, considered.

(2) Amrollahi v. Denmark, [2002] ECHR 580, considered.

(3) BDO Cayman Ltd. v. Governor in Cabinet, 2018 (1) CILR 457, considered.

(4) Boultif v. Switzerland (2001), 33 E.H.R.R. 50; [2001] 2 FLR 1228; [2001] ECHR 497; [2001] Fam. Law 875, considered.

(5) Customs & Excise Commrs. v. Zielinski Baker & Partners Ltd., [2004] UKHL 7; [2004] 1 W.L.R. 707; [2004] 2 All E.R. 141; [2004] BTC 5249; [2004] STC 456, considered.

(6) DS (India) v. Home Secy., [2009] EWCA Civ 544; [2010] Imm. A.R. 81, considered.

(7) EB (Kosovo) v. Home Secy., [2008] UKHL 41; [2009] 1 A.C. 1159; [2008] 3 W.L.R. 178; [2008] 4 All E.R. 28; [2008] HRLR 40; [2008] INLR 516; [2008] Imm. A.R. 713; [2008] U.K.H.R.R. 1087, considered.

(8) Ellington v. Chief Immigration Officer, Cause Nos. 209 of 2016 and 216 of 2018, Grand Ct., April 29th, 2020, unreported; on appeal, 2020 (2) CILR 911, considered.

(9) Findlay, In re, [1985] 1 A.C. 318; [1984] 3 W.L.R. 1159; [1984] 3 All E.R. 801, considered.

(10) HA (Iraq) v. Home Secy., [2020] EWCA Civ 1176; [2021] 1 W.L.R. 1327; [2021] 2 All E.R. 898; [2020] INLR 539; [2020] HRLR; [2021] Imm. A.R. 59, referred to.

(11) HS v. IAT, 2019 (1) CILR 545, considered.

(12) Home Secy. v. AH (Sudan), [2007] UKHL 49; [2008] 1 A.C. 678; [2007] 3 W.L.R. 832; [2008] 4 All E.R. 190; [2008] INLR 100; [2008] Imm. A.R. 289, considered.

(13) Huang v. Home Secy., [2007] UKHL 11; [2007] 2 A.C. 167; [2007] 2 W.L.R. 581; [2007] 4 All E.R. 15; [2007] Fam. Law 587...