Jerry Korbla Kpesunu v The Chief Immigration Officer
| Jurisdiction | Cayman Islands |
| Judge | Timothy Owen |
| Judgment Date | 26 August 2014 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO. G 365 OF 2013 |
and
Hon. Justice Timothy Owen Q.C. (Acting)
CAUSE NO. G 365 OF 2013
IN THE GRAND COURT OF THE CAYMAN ISLANDS
Mr. Dennis Brady for the Petitioner
Ms. Reshma Sharma and Ms. Jenny Catran for the Respondents
This case was listed before me as a Directions Hearing in the context of a Petition filed on behalf of the Petitioner, Mr. Kpesunu, on 24 th October 2013 and seeking various forms of relief pursuant to section 26 of the Cayman Islands Constitution Order 2009. However in light of the conclusion I have reached as to the fundamentally misconceived basis for the Petition, it is neither necessary nor appropriate to give directions for its further progress. Accordingly, for reasons set out below, it is dismissed. I should add at the outset of this Judgment that, having read the written submissions lodged by the parties and heard brief oral submissions from Mr. Brady on behalf of the Petitioner, both parties agreed to my giving this final Judgment on the merits of the Petition despite the fact that the case had been listed merely for directions. I also add that it appears that at no stage was the Petition served on the Director of Public Prosecutions who was not represented before me. I was initially concerned about the appropriateness of continuing with the hearing in these circumstances given that, as it seems to me, the DPP was plainly an interested party in light of the fact that a criminal trial has been adjourned for some 11 months pending the resolution of these proceedings. But in light of the fact that the Attorney General is a party to the proceedings — and in view of the very clear view I have formed as to the abusive nature of this Petition — I have concluded that no useful purpose would have been served by adjourning the proceedings. Rather the most appropriate course is forthwith to deliver this Judgment so that the criminal trial can resume as soon as reasonably practicable.
The Petitioner is a citizen of Ghana who at all relevant times was married to a Caymanian, Darlene Manzanares-Kpesunu, and was accordingly the beneficiary of a Residency and Employment Rights Certificate (“RERC”) issued on 4 th October 2012. He later took up employment as a security guard at the Owen Roberts airport. It appears that after their marriage in June 2012 serious difficulties quickly developed, culminating in Mrs. Manzanares-Kpesunu writing a letter dated 15 th November 2012 to the Chief Immigration Officer announcing that “my husband has proven that this is a ‘marriage of convenience’…and I am desperately asking all privileges be revoked as this marriage has no hope of reconciliation.”
By letter dated 18 th December 2012 the Caymanian Status and Permanent Residency Board (“the Board”) wrote to the Petitioner informing him that they were minded to revoke his RERC. On 2 nd January 2013, the Petitioner replied outlining his version of events but in the event the Board wrote a further letter to the Petitioner dated 15 th February 2013 revoking his RERC as from 31 st January 2013. On 26 th February 2013 the Petitioner lodged an appeal against the revocation decision to the Immigration Appeal Tribunal and on the same day his lawyer wrote to the Chief Immigration Officer seeking an extension of his right to work. The letter asserted that the Petitioner was entitled as of right to an extension of his permission to work by operation of law pursuant to the provisions of s.31 (8) (b) of the Immigration Law 2012.
It is the Petitioner's case that at some stage before he was eventually arrested he visited the Department of Immigration where he met Ms. Roseta Moore, an official within the Department. He claims that he explained to Ms. Moore that he had lodged an appeal against the revocation of his RERC and that he had applied to the Chief Immigration Officer for the right to continue working in the Cayman Islands. He says he was given a Working by Operation of Law application form to complete but that when he later attempted to submit the form, Ms. Moore refused to accept it, told him that he had no right to remain on the island and that he should depart immediately. It is unclear to me the extent to which the Petitioner's version of events on this aspect of the case is rejected by the Chief Immigration Officer but it is not necessary to resolve any potential factual disputes within the instant proceedings in light of my conclusion as to the abusive nature of the Petition itself.
On 10 th April 2013, the Petitioner was notified by an Inspector Scott that he should report to the Enforcement Section of the Department of Immigration the following day at 09.00. Mr. Kpesunu duly attended accompanied by his lawyer, Mr. Dennis Brady, and later that morning the Petitioner was placed under arrest for the offence of overstaying. He was fingerprinted, photographed and later bailed after some two hours in custody. I do not have a copy of the original charge sheet amongst my papers but it appears that prior to his release on bail the Petitioner was formally charged with the offence of remaining in the Cayman Islands without authorization contrary to s.78 (1) (c) of the Immigration Law (2012 Revision), the particulars being that “on the 26 th March and 11 th April 2013 you were found to be overstaying your authorization to remain in the Cayman Islands”.
The Petitioner's criminal trial for overstaying commenced in September 2013 before His Honour Magistrate Foldats. No formal record of the proceedings has been produced but it is common ground that in the course of the cross-examination of Ms. Moore on 26 th September 2013, the learned Magistrate became concerned that the line of questioning being pursued by Mr. Brady engaged issues under the Cayman Islands Constitution Order 2009 and that it was the Magistrate himself who took the initiative to adjourn the trial so that Mr. Brady might “consider his options”. Significantly in my view, when adjourning the criminal trial the learned Magistrate did not make a reference to the Grand Court under s.26 (2) of the Constitution pursuant to Order 77A, r.5 of the Grand Court (Amendment No. 2 Rules) 2012 and of course at the time he had adjourned he had made no findings of fact capable of being incorporated into any such reference nor had the Summary Court identified any issue as to the interpretation of the Bill of Rights on which the opinion of the Grand Court was sought. In the course of the oral hearing before me, I asked Mr. Brady whether either party to the criminal trial raised any concern as to the appropriateness of adjourning the criminal proceedings or sought to clarify with the Magistrate what it was that was concerning him in light of Mr. Brady's cross-examination. I was told that not only did neither party seek clarification but that at no stage did the learned Magistrate hear any submissions on whether there existed a jurisdictional bar to him considering any Bill of Rights issues that might be relevant to the questions for disposal within the criminal trial itself. Mr. Brady explained to me that he, in effect, deferred to the Court's concern that there might be issues arising under the Constitution Order 2009 and that the decision to pursue this Petition was taken without any debate before the Magistrate as to the appropriateness of adjourning the criminal trial pending resolution of this Petition. For reasons which will become clear, I regard this as unfortunate.
The criminal trial having been adjourned, the instant Petition was lodged by Mr. Kpesunu with the Grand Court on 24 th October 2013 and supported by an Affidavit which summarized the key facts and proceeded to make a number of allegations of breaches of various provisions of the Bill of Rights contained in Part I of the Cayman Islands Constitution Order 2009. These breaches were said to arise in connection with the acts and omissions of Ms. Moore and the Chief Immigration Officer in refusing to accept his application to work by operation of law pending the outcome of his appeal to the Immigration Appeals Tribunal and the decisions of the immigration enforcement department in arresting, questioning and charging the Petitioner with the criminal offence of overstaying. Specifically, the Petition alleges that Mr. Kpesunu, as a person still married to a Caymanian, had a right to reside with his spouse pursuant to Section 9(1) of the Bill of Rights and that the acts of the various officials in demanding that he leave the Cayman Islands and then prosecuting him for overstaying constituted disproportionate, unlawful, oppressive and discriminatory conduct in breach of Sections 7,8, 13 and 16 of the Bill of Rights.
By letter dated 28 th November 2013, the Attorney General's Chambers wrote to Mr. Brady acknowledging receipt of the Petition, pointing out that much of the factual basis for the Petition remained in dispute and asserting that s.26 (5) of the Bill of Rights preserves the jurisdiction of the Summary Court to deal with procedural matters and that the Summary Court also has jurisdiction to assess the consistency of any legislative provision with the Bill of Rights and to interpret any legislative provision “so far as it is possible to do so” in a manner that is compatible with the rights set out in the Bill of Rights (see s.25 of The Constitution Order). Finally, and importantly, it was asserted that “it is inappropriate to bring a collateral challenge to the decision to charge Mr. Kpesunu under s.7 (1) of the Bill of Rights, while the trial itself is on foot. The current Summary Court trial is “the forum conveniens for any questions of procedural fairness to be aired.” Against this background, the Respondent's Note for the Directions Hearing rightly identifies the central...
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