Section 23 (2) of the Immigration (Transition) Act (2021 Revision) Order 55 of the Grand Court Rules and an Application for a Residency and Employment Rights Certificate Pursuant to Section 30 (1) Immigration Act (2015 Revision). Between: Joey Delosa Buray First Appellant and Leon Sunil Carmo D'Souza Second Appellant v The Immigration Appeals Tribunal First Respondent The Attorney General Second Respondent
| Jurisdiction | Cayman Islands |
| Judgment Date | 08 June 2022 |
| Docket Number | CAUSE NOs: G 52 OF 2021 |
| Court | Grand Court (Cayman Islands) |
In the Matter of Section 23 (2) of the Immigration (Transition) Act (2021 Revision)
In the Matter of Order 55 of the Grand Court Rules
And in the Matter of an Application for a Residency and Employment Rights Certificate Pursuant to Section 30 (1) Immigration Act (2015 Revision).
and
CAUSE NOs: G 52 OF 2021
G 81 OF 2021
IN THE GRAND COURT OF THE CAYMAN ISLANDS
Whether permanent residency application process under Immigration Act 2022 is incompatible with section 9 of the Bill of the Rights and the protection of private and family lives — Whether the refusal of the Caymanian Status and Permanent Residency Board or the Immigration Appeals Tribunal to provide appellants with copies of the actual questions and answers from their history and culture tests is unreasonable and amounts to a breach of the principles of natural justice.
Mr Alastair David of HSM Chambers for the Appellants
Ms Claire Allen and Ms Carolyn Forster of Attorney General's Chambers for the Respondents
These proceedings relate to appeals by the First and Second Appellants against refusals by the Caymanian Status and Permanent Residency Board (the “Board”) to grant them permanent residency (“PR”) and consequential Residency and Employment Rights Certificates (“RERC”) pursuant to section 30 (1) of the Immigration Act (2015 Revision) (the “2015 Act”) 1.
Both appealed to the Immigration Appeals Tribunal (the “IAT” or “First Respondent”) and both appeals were rejected.
Pursuant to GCR O.55, r.l, the First Appellant's amended notice of motion was filed on 19 May 2021. The Second Appellant's notice of originating motion was filed on 14 May 2021.
It is claimed by the Appellants:
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4.1 that the decisions of the IAT to refuse to grant PR and RERC's should be set aside and the applications be remitted to the First Respondent to be reconsidered;
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4.2 in the case of the Second Appellant that the decision of the IAT refusing to grant a RERC is unreasonable and amounts to a breach of natural justice;
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4.3 in the case of both Appellants, that they are entitled to a declaration that the First Respondent and any decision maker, when considering an application for PR must consider an applicant's right to family and private life pursuant to section 9 of the Bill of Rights 2 (“Section 9” and “BOR”) when considering whether or not to grant or reject an application for PR; or,
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4.4 that section 37 (1) of the 2022 Act is incompatible with Section 9.
The Attorney General is an intervenor for the purposes of the claim that there may be an incompatibility with the BOR.
Section 9 reads as follows:
“Private and family life
9. (1) Government shall respect every person's private and family life, his or her home and his or her correspondence.
(2) Except with his or her own consent or as permitted under subsection (3), no person shall be subjected to the search of his or her person or his or her property or the entry of persons on his or her premises.
(3) Nothing in any law or done under its authority shall be held to contravene this section to the extent that it is reasonably justifiable in a democratic society —
(a) in the interests of defence, public safety, public order, public morality, public health, town and country planning, or the development or utilisation of any other property in such a manner as to promote the public benefit;
(b) for the purpose of protecting the rights and freedoms of other persons;
(c) to enable an agent of the Government or a public body established by law to enter on the premises of any person in order to inspect those premises or anything on them for the purpose of any tax, rate or due or in order to carry out work connected with any property that is lawfully on those premises and that belongs to the Government or that public body;
(d) to authorise, for the purpose of enforcing the judgment or order of a court, the search of any person or property by order of a court or the entry on any premises by such order; or
(e) to regulate the right to enter or remain in the Cayman Islands.”
Before considering in detail the grounds of appeal that each appellant is advancing and the response of the Respondents, it is probably helpful to review the PR application process as well as the context within which it was and is intended to operate. Madam Justice Ramsay-Hale also considered the system in some detail in the case of Alejandro Ruiz Ambriz v the Attorney General and the Immigration Appeals Tribunal 3.
The Appellants both applied for PR on the basis of having been legally and ordinarily resident in the Islands for a continuous period of at least 8 years. The relevant law at the time each of them applied
was the 2015 Act, with their respective applications having been made under section 30(1) of that Act. The relevant law at the time of appeal to the IAT was section 37 of the Immigration (Transition) Act, 2018 (“2018 Act”). Pursuant to section 21(4) of the 2022 Act, whilst the IAT is to apply the law that is, or was, in force at the time of the decision of the Board or Director of the Workforce, Opportunities and Residency Cayman Office (“WORC”) or Chief Immigration Officer (“CIO”), it is the law in force at the time of the rehearing by the IAT that governs the proceedings under section 22(5) of the 2022 ActSection 37 of the 2018 Act provides as follows:
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“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 —
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(a) the holder of a Residency Certificate for Persons of Independent Means;
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(b) the holder of a Residency Certificate for Retirees;
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(c) the holder of a Certificate of Direct Investment or a Direct Investment Holder's (Dependant's) Certificate;
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(d) the holder of a Residency Holders (Dependant's) Certificate;
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(e) the holder of a Certificate of Permanent Residence for Persons of Independent Means; or
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(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 for 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.
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(2) For the purpose of assessing the suitability of an applicant for permanent residence, a points system shall be prescribed by the Cabinet.
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(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.”
It is the last sub-section limiting the power of the IAT to only grant PR based on points allocated by the Points System (defined below) and thereby excluding the exercise of any discretion (and therefore a proportionality review under Section 9) that is at the heart of the issues in this case.
The “ points system (…) prescribed by the Cabinet” the (“Points System”) is found in Regulations made under the 2018 Act. In the case of the Appellants the relevant Points System is found at Schedule 2 of the Immigration Regulations (2019 Revision) (the “2019 Regulations”). The Points System is divided into nine factors and a deductible component. The nine factors award points for: Factor 1 — Occupation
Factor 2 — Education, Training and Experience Factor 3 — Local Investments Factor 4 — Financial Stability
Factor 5 — Community Minded / Integration into the Caymanian Community
Factor 6 — History and Culture Test
Factor 7 — Possessing Close Caymanian Connections
Factor 8 — Demographic and Cultural Diversity
Factor 9 — Age Distribution
The deductible component allows the decision maker to deduct points for reasons of character and/or health.
An applicant for PR can live and work in the Cayman Islands, while their application is pending or while any appeal is being considered. 4 However, this is a limited right and once an applicant's PR application has been rejected and the applicant has chosen not to appeal or has extinguished his appeal rights, that applicant is only entitled to a final 90 day permission to remain in the country. 5
Once the final 90 day permission to remain has ended, if they have no other ability to remain in the Cayman Islands 6 an unsuccessful applicant “ shall leave the Cayman Islands and neither the Board nor the Director of WORC shall grant or renew a work permit for the worker until the worker has ceased to hold a work permit for not less than one year after the worked has left the Islands” 7. If
It is not in dispute that the Appellants do not have the ability to obtain any other permission to remain in the Cayman Islands and, therefore, if their appeals are dismissed they will have to leave the Cayman Islands.
Applications for PR and RERC are made on form R30 which has numerous sections which are required to be completed. Counsel for the Appellants has highlighted that nowhere in the form does it require the applicant to detail their private life in the Cayman Islands. He also goes further and states that at no stage in any of the Appellants' applications/appeals has the Director of WORC the Board or the First Respondent asked either of the Appellants to address them as to their private life in the Cayman Islands.
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