Warren v Immigration Bd

• Jurisdiction: Cayman Islands
• Judge: (Graham, J.)
• Judgment Date: 10 April 2002
• Court: Grand Court (Cayman Islands)
• Date: 10 April 2002

Grand Court

(Graham, J.)

WARREN

and

IMMIGRATION BOARD

Mrs. S.A. Brooks-Hurst for the plaintiff;

S. Hall-Jones, Senior Crown Counsel, for the defendant.

Case cited:

(1) Cooper v. StuartELR(1889), 14 App. Cas. 286, followed.

Legislation construed:

Caymanian Protection Law, 1984 (Law 24 of 1984), s.18(5): The relevant terms of this sub-section are set out at para. 21.

s.19(5): ‘The Board shall grant Caymanian status in accordance with a quota to be fixed by the Governor, which quota shall be gazetted.’

s.71(3): The relevant terms of this sub-section are set out at para. 11.

Immigration Law (2001 Revision) (Law 13 of 1992, revised 2001), s.17(1):

‘Any person of not less than eighteen years of age who has been ordinarily resident in the Islands for a period of ten years immediately preceding his application may apply to the Board for a grant of Caymanian status.’

s.17(4): ‘Any person who is a Dependent Territories Citizen by reason of a grant by the Governor of a certificate of naturalisation or

registration issued under the British Nationality Act, 1981 or any Act preceding, amending or replacing that Act may apply to the Board for the grant of Caymanian status.’

Bill of Rights 1689 (1 Will. & Mar., sess. 2, c.2), art. 1: The relevant terms of this article are set out at para. 13.

Immigration and Status-Caymanian status-policy directions by Governor-imposing moratorium on grant of status is ultra vires Governor, under Bill of Rights 1689, art. 1-Crown has no power to suspend operation of Immigration Law-Immigration Board required to grant status in accordance with quota fixed by Governor

Immigration and Status-Caymanian status-grant and revocation of status-breach of rules of natural justice by Immigration Board to change basis of application for status without giving applicant opportunity to be heard

The plaintiff sought judicial review of the Immigration Board”s revocation of her Caymanian status.

The plaintiff, a Honduran national residing in the Cayman Islands, applied for Caymanian status under s.18(4) of the Caymanian Protection Law, 1984 as a British Dependent Territories citizen, on the basis of her certificate of naturalisation. In 1992 status was granted to her under s.18(5)(a) and (d) of the Law on the grounds that she was the spouse of a person possessing Caymanian status and had been resident in the Islands for three years. When, following her divorce in 1998, she applied to the

Immigration Board for a ruling that her Caymanian status should continue, the Board replied (in March 2000) that its original grant was ultra vires because her husband did not, in fact, have Caymanian status. In the light of a moratorium on the grant of Caymanian status under s.18(1), issued by the Governor-in-Council as a policy direction with effect from January 1991, the Governor referred the plaintiff to the courts.

The plaintiff was given leave to challenge by judicial review the legality of the moratorium and the revocation of her Caymanian status. However, in November 2001, she was granted status under s.17(4) of the Immigration Law (2001 Revision) based on her certificate of naturalisation. The Board recognized the invalidity of the moratorium, and back-dated its annual quota of grants to January 1991. It applied to set aside the grant of leave, on the ground that nothing remained for the court to decide.

The plaintiff submitted that (a) the revocation of her Caymanian status had been unlawful, since the Board could properly have granted her status under s.18(4) of the 1984 Law on the basis of her certificate of naturalisation; the purported moratorium applying only to status granted under s.18(1) based on 10 years” residence; and (b) the moratorium was ultra vires the Governor”s legislative powers (i) by virtue of art. 1 of the Bill of Rights 1689, applicable in the Islands since the 18th century, prohibiting the suspension of legislation without Parliamentary consent, and (ii) because it directed the Board to ignore the annual quota for grants of status fixed by the Governor under s.19(5) of the 1984 Law.

The Board submitted in reply that (a) since the plaintiff had now been granted status under s.17(4) of the Immigration Law, and since the challenge to the revocation should have been dealt with by appeal to the Governor-in-Council rather than by judicial review, the present proceedings should be dismissed; and (b) the court need make no ruling on the legality of the moratorium, which was no longer being enforced in practice and which was not crucial to the issue of the revocation.

Held, making the following rulings:

(1) The moratorium on the grant of status contained in the Governor”s policy direction was ultra vires and thus void. Article 1 of the Bill of Rights prohibited any suspension of legislation by the Governor (as the Crown”s representative) without the consent of Parliament. It applied in the Islands as English law which the original permanent settlers had brought with them in 1734 to a territory not within the jurisdiction of any other civilized power. English enactments passed prior to that date extended to the Islands if they were suitable to the settlers”...