Section 51(L)(C) of the Immigration (Transition) Act, 2018 Order 55 of the Grand Court Rules and the Revocation of the Residency and Employment Rights Certificate Held by Alan Lawrems Taylor Dominguez Granted Pursuant to Section 31 Immigration Act, 2013. Alan Lawrems Taylor Dominguez Appellant v Immigration Appeals Tribunal Respondent
| Jurisdiction | Cayman Islands |
| Judge | Mr Justice Alistair Walters |
| Judgment Date | 29 April 2022 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO: 140 OF 2021 |
In the Matter of Section 51(L)(C) of the Immigration (Transition) Act, 2018
In the Matter of Order 55 of the Grand Court Rules
And in the Matter of the Revocation of the Residency and Employment Rights Certificate Held by Alan Lawrems Taylor Dominguez Granted Pursuant to Section 31 Immigration Act, 2013.
Hon Mr Justice Alistair Walters (Actg.)
CAUSE NO: 140 OF 2021
IN THE GRAND COURT OF THE CAYMAN ISLANDS
Appeal against revocation of permanent residency and residency and employment rights certificate, extent to which rights to private and family life pursuant to section 9 of the Bill of Rights are relevant to decisions of the Caymanian Status and Permanent Residency Board and Immigration Appeals Tribunal, failure of Caymanian Status and Permanent Residency Board and Immigration Appeals Tribunal to have adequate policies and procedures to ensure that section 9 rights are protected and failure of the Immigration Appeals Tribunal to apply up to date law and proper analysis to its decision to ensure that those rights are protected. Remission of appeal to Immigration Appeals Tribunal. Interpretation of Immigration (Transition) Act 2022.
Mr. Alastair David of HSM Chambers for the Appellant
Ms Heather Walker, Attorney General's Chambers for the Respondent
This is the substantive hearing of the Appellant's appeal against the Respondent's decision (the “Decision”) confirmed in a letter dated 7 June 2021 (the “Decision Letter”) to refuse to reinstate the Appellant's Residency and Employment Rights Certificate (“RERC”) following the revocation of that Certificate by the Caymanian Status and Permanent Residency Board (the “Board”) on 24 October 2019.
The Appellant seeks a declaration that the Decision was wrong in law or, in the alternative, that it was unreasonable, irrational or procedurally unfair, and for the matter to be remitted to the Respondent (also the “LAT”) for reconsideration.
Pursuant to GCR O.55, r.1, the Appellant's Notice of Originating Motion was filed on 2 July 2021 and served on the Respondent on 6 July 2021. In accordance with case management directions agreed between the parties by consent and approved by the Court on 11 August 2021, on 31 August 2021 the Respondent filed a Response to the Originating Motion.
I have set out below the background. In doing so, I have made use of the helpful summary provided by Ms Walker in her skeleton argument.
The Appellant has been married to Ms. Neydis Taveras since 15 November 2013. Ms. Taveras is a Cuban national who was granted Caymanian Status on 18 June 2002. Following their marriage the Appellant applied for an RERC as the spouse of a Caymanian, which was approved on 23 January 2014. The Appellant is originally from Colombia.
The Appellant and Ms. Taveras' son, M (abbreviated for privacy reasons), was born in 2016. M is Caymanian.
On 29 March 2019 Dame Linda Dobbs, Acting Judge of the Grand Court, ordered that the Appellant was to serve two sentences of four years' imprisonment in relation to one offence of conspiracy to import a controlled drug and another offence of importing cocaine. The two sentences were to run concurrently with time spent in custody on remand to count towards the sentences.
By letter dated 24 July 2019, the Board wrote to the Appellant to advise him that it was minded to revoke his RERC. The Appellant was given an opportunity to provide his views and he duly did so by letter dated 26 August 2019 together with various enclosures including a letter from Ms. Taveras, his son's birth certificate, visitor records from Her Majesty's Cayman Islands Prison Service (“HMCIPS”) and a supportive letter from his former employer.
The Appellant was released from HMP Northward on a Conditional Release Licence on 17 October 2019.
On 24 October 2019, the Board revoked the Appellant's RERC. This was communicated to him by letter of 28 October 2019. The relevant parts of that letter stated:
“I refer to your [RERC] previously granted to you and write to advise you that the [Board] has revoked your [RERC] with effect from 24 October 2019. Further details of the Board's decision are indicated below (if any):
• Revoked pursuant to Section 38 (1) (c) of the Immigration Law (2015 Revision).”
By letter of 14 November 2019, the Appellant served a Notice of Appeal on the Respondent in relation to the Board's decision. On 20 July 2020, the Appellant was provided with the Board's Appeal Statement and on 17 August 2020 the Appellant submitted detailed grounds of appeal.
The Respondent met on 26 November 2020. The minutes of that meeting record the conclusion of the Respondent that grounds of appeal had been established on the basis that the Board had failed to consider the Appellant's rights, and the rights of Ms. Taveras and M, under section 9 of the Bill of Rights (“BOR”) and on the basis that the Board had failed to provide full reasons for how it had arrived at its decision.
The Respondent deferred the matter in order for the Appellant to provide an update on his relationship with Ms. Taveras and M and an update from HMCIPS. The Respondent sought an updated letter from Ms. Taveras as to the current state of their marriage and the Appellant's relationship with M, information as to whether Ms. Taveras and M continued to visit the Appellant in prison, information as to the difficulties that Ms. Taveras and M would likely encounter if the Appellant was returned to his country of origin, and an updated letter from HMCIPS on “ the Appellant's behaviour, visit list and visit record and categorisation etc.” The Respondent indicated that, upon receipt of this information, the appeal was to be listed for a hearing date.
By letter dated 21 December 2020, the Respondent wrote to the Appellant's legal representative to inform the Appellant of the Respondent's decision to defer the appeal and to request the further information referred to in the minutes of its meeting of 26 November 2020.
The Respondent was subsequently provided with a sworn affidavit of Ms. Taveras, dated 18 January 2021, together with four exhibits which included a letter dated 14 January 2021 from the Department of Community Rehabilitation, several character references, and the 2019 US State Department's Human Rights Report on Colombia.
The Respondent met for a second time on 1 April 2021. The minutes of that meeting record the Respondent's Decision not to reinstate the Appellant's RERC, with reasons, and that the Respondent dismissed the appeal (the “1 April 2021 Minutes”). The Decision was conveyed to the Appellant by way of the Decision Letter but it is understood not to have been received by the Appellant until 8 June 2021. The Appellant now appeals that Decision.
A extract from the minutes of a meeting the IAT held on 26 November 2020 (the “26 November 2020 Minutes”) reads as follows:
“The Tribunal carefully considered the Notice of Appeal received by the Secretariat on 14 th November 2019 against the decision of the [Board] to revoke the [RERC] for the spouse of a Caymanian spouse pursuant to section 38 (1) (c) of the Immigration law (2015 Revision).
The Tribunal reviewed the Appeal Statement received by the Secretariat on 20 th July 2020, noting the following:
• On 29 th March 2019, the Appellant was sentenced with 4 years' imprisonment for “Being concerned with the importation of cocaine”.
• In noting the Appellant's conviction, the Board advised the Appellant by way of letter dated 24 th July 2019, that it was minded to revoke his RERC and asked that he provide written reasons as to why his RERC should not be revoked. The Appellant was given 15 days to provide this information.
• In response, the Appellant provided a letter from himself dated 26 th August 2019, a letter from his spouse dated 21 st August 2019, his marriage certificate, his son's birth certificate, a copy of his visit list and visit record, a letter conforming his security category and a letter from his previous employer.
• Both him and his spouse asked that the Board be lenient in considering the matter and also consider keeping his family together. It was also stated that the Appellant was a good father and continued to support his family even whilst being imprisoned. It was further asked that the Board consider that the Appellant had been a good citizen prior to this incident. The letter from the Chair of the Categorization Board said that his Security Categoiy had been downgraded to C after considering:
○ Drug Test Report — Negative for Ganja and Cocaine
○ Security Report — No concerns
○ Wing Report — excellent
○ Consistent employment and education involvement.
○ Case Management engagement
○ No infractions in the last six (6) months
• The letter dated 5 th August 2019, from the Appellant's previous employer stated that he was very hard working and responsible during his time of employment and that he (the previous employer) was made to understand that the Appellant would soon qualify to engage in employment within the community and thus he was offering the Appellant employment as soon as he was able to accept it.
• On 24 th October 2019, the matter was back before the Board and the Board revoked the Appellant's RERC.
The Tribunal considered the Detailed Grounds of Appeal received by the Secretariat on 17 th August 2020.
The Tribunal determined that grounds of appeal have been established as the CS/PR Board was unreasonable by not giving consideration to the Appellant, his Caymanian spouse and child's rights under Section 9 of the Bill of Rights nor did the Board [provide] full reasons for how they arrived at their decision.
It was agreed that the Tribunal shall consider the following points...
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