K v Chief Immigration Officer and Attorney General

• Jurisdiction: Cayman Islands
• Judge: (Owen, Ag. J.)
• Judgment Date: 26 August 2014
• Court: Grand Court (Cayman Islands)
• Date: 26 August 2014

Grand Court, Civil Division

(Owen, Ag. J.)

K

and

CHIEF IMMIGRATION OFFICER and ATTORNEY GENERAL

D. Brady for the plaintiff;

Ms. R. Sharma, Senior Crown Counsel and Ms. J. Catran, Crown Counsel, for the defendant.

Cases cited:

(1) Boddington v. British Transp. Police, [1999] 2 A.C. 143; [1998] 2 W.L.R. 639; [1998] 2 All E.R. 203, applied.

(2) Panday v. Virgil, [2008] 1 A.C. 1386; [2008] 3 W.L.R. 296; [2008] 2 Cr. App. R. 21; [2008] UKPC 24, applied.

(3) R. v. Horseferry Road Mags.” Ct., ex p. Bennett, [1994] 1 A.C. 42; [1993] 3 W.L.R. 90; [1993] 3 All E.R. 138; (1994), 98 Cr. App. R. 114, applied.

(4) R. v. Latif, [1996] 1 W.L.R. 104; [1996] 1 All E.R. 353; [1996] 2 Cr. App. R. 92, referred to.

(5) R. v. Looseley, sub nom. Att. Gen.”s Reference (No. 3 of 2000), [2001] 1 W.L.R. 2060; [2001] 4 All E.R. 897; [2002] 1 Cr. App. R. 29; [2002] H.R.L.R. 8; [2002] UKHRR 333; [2001] UKHL 53, referred to.

(6) R. v. Minzett, 2011 (2) CILR 236, referred to.

(7) R. v. Stewart, 2000 CILR 213, referred to.

(8) Sharma v. Brown-Antoine, [2007] 1 W.L.R. 780; [2006] UKPC 57, applied.

Legislation construed:

Cayman Islands Constitution Order 2009 (S.I. 2009/1379), Schedule 2, s.26(1): The relevant terms of this sub-section are set out at para. 10.

s.26(2): The relevant terms of this sub-section are set out at para. 11.

Administrative Law-judicial review-amenability to review-Grand Court may review decision to bring prosecution in Summary Court only if exceptional circumstances mean Summary Court unable to hear issues raised by challenge-courts to avoid satellite litigation by hearing all relevant issues together where possible

Courts-Magistrate”s Court-jurisdiction-Summary Court may hear claim that decision to prosecute abuse of process unless court unable to hear all issues raised by challenge-entitled to consider constitutional issues, although must refer questions of interpretation to Grand Court for determination if necessary

The petitioner was charged in the Summary Court with remaining in the Cayman Islands without authorization, contrary to the Immigration Law (2012 Revision), s.78(1)(c).

The petitioner lived in the Cayman Islands under a Residency and Employment Rights Certificate (‘RERC’) following his marriage to MK, a Caymanian. MK, however, wrote to the Chief Immigration Officer claiming that the marriage was one of convenience, that difficulties had arisen from which that there was no hope of reconciliation and requesting that the petitioner”s RERC be revoked. The Caymanian Status and Permanent Residency Board heard several submissions from the petitioner and ultimately decided to revoke his RERC. The petitioner lodged an appeal and sought an extension of his right to work, but was informed that he had no right to remain in the Islands and should depart immediately. The petitioner refused to leave and was arrested.

At the petitioner”s trial, the Summary Court (Foldats, Magistrate) became concerned that issues under the 2009 Constitution were engaged.

It therefore adjourned the trial for the petitioner to consider his options-although it did not formulate the issues which it perceived or make any reference to the Grand Court. Neither party sought clarification and no submissions were made as to whether the Summary Court would have been able to hear the issues. The petitioner petitioned the Grand Court, alleging that his rights under the Constitution had been breached.

The respondents submitted that the petition was an abuse of process. The Summary Court was entitled to adjudicate upon any constitutional issues which did not require the interpretation of the Bill of Rights and there was no indication that such an issue arose in the present case. Any constitutional issues should therefore have been resolved in the Summary Court.

The petitioner submitted that his rights under the 2009 Constitution had been breached and that the Grand Court was the most appropriate place to resolve these issues.

Held, dismissing the petition:

(1) The Grand Court was entitled to judicially review the decision to bring a prosecution in certain circumstances. Where the accused alleged that the prosecution had been improperly brought, it was in the interests of the administration of justice to allow him to challenge the decision before the completion of the substantive trial. Such a challenge, however, would involve many factors which the Grand Court was not well placed to decide (e.g. whether the decision to prosecute was in the public interest), would create satellite litigation and would cause great delay to the prosecution. Further, it was preferable for all the relevant issues to be tried together where possible. The initial criminal proceedings were equipped to deal with most complaints, contained many safeguards and well-established powers designed to restrain proceedings which were an abuse of process, and were in a better position to distinguish between a challenge that the prosecution was improperly brought and a prosecution that was unfounded. The Grand Court would therefore only review the decision in exceptional circumstances where the Summary Court was unable to hear the issues raised by the challenge (e.g. because the challenge raised cross-border issues which were too far outside the scope of the initial prosecution) (para. 9; paras. 12–15).

(2) The petition was an abuse of process and would be struck out. There was nothing to indicate that the Summary Court was unable to resolve the constitutional issues; it had a clear jurisdiction to consider constitutional issues although, under the 2009 Constitution, s.26(2), it was not competent to decide issues of interpretation. A reference under s.26(2), however, should only be made if it was necessary, rather than desirable, for an issue of interpretation to be determined and had to comply with the requirements of the GCR, O.77A, r.5. The Summary Court should therefore have heard arguments from the parties as to whether any constitutional issues existed and whether it had jurisdiction to hear them. The issues which the petition raised were all of a nature that, if such argument had occurred, the

Summary Court would have concluded that it did have jurisdiction to hear the issues and continue the trial. There was therefore no justification for the petition (paras. 10–11; para. 16).

1 OWEN, Ag. J.:

Introduction

This case was listed before me as a directions hearing in the context of a petition filed on behalf of the petitioner, K, on October 24th, 2013 and seeking various forms of relief pursuant to s.26 of the Cayman Islands Constitution Order 2009. In light of the conclusion which I have reached as to the fundamentally misconceived basis for the petition, however, 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 facts

2 The petitioner is a citizen of G who at all relevant times was married to a Caymanian, MK, and was accordingly the beneficiary of a Residency and Employment Rights Certificate (‘RERC’). He later took up employment as a security guard at the Owen Roberts Airport. It appears that after they married, serious difficulties quickly developed, culminating in MK writing a letter 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.’

3 By letter, the Caymanian Status and Permanent Residency Board (‘the Board’) wrote to the petitioner informing him that they were minded to revoke his RERC. The petitioner replied outlining his version of events but in the event the Board wrote a further letter to the petitioner revoking his RERC. After the revocation took effect, 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.

4 It is the petitioner”s case that at some stage before he was eventually arrested, he visited the Department of Immigration where he met M, an official within the Department. He claims that he explained to M 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...