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Associate Alastair David covers this case, which has relevance to permanent residence applications and revocations. On 29 April 2020, the Grand Court in the Cayman Islands handed down a decision in the case of Ellington v Chief Immigration Officer of Read more +
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The Effect of Ellington v Chief Immigration Officer of the Cayman Islands
Associate Alastair David covers this case, which has relevance to permanent residence applications and revocations. On 29 April 2020, the Grand Court in the Cayman Islands handed down a decision in the case of Ellington v Chief Immigration Officer of the Cayman Islands. The Grand Court concluded that:
- The Law surrounding Prohibited Immigrants was incompatible with Section 9 of the Bill of Rights; and
- The decision of the Immigration Appeals Tribunal was wrong in Law.
Currently, the Attorney General is appealing against the decision with respects to (i) and therefore this article will focus on (ii).
Mr Ellington is a Jamaican national who has resided in the Cayman Islands since 2007. Up until 2013, Mr Ellington’s stay in the Cayman Islands was rather unremarkable. He had a series of work permits and had no convictions recorded against him. However, in August 2013, he married his first wife (a Caymanian) and then on 23 September 2013, was involved in a robbery which took place in a supermarket. Mr Ellington’s part in the robbery was that of a ‘getaway driver’ and he pleaded guilty to being an accessory after the fact to the robbery. Justice Quin sentenced him to a custodial sentence of 2 years and made no recommendation in regards to his deportation from the Cayman Islands.
In consequence of his sentence, being a term of imprisonment of greater than 12 months, Mr Ellington automatically became designated a Prohibited Immigrant, by operation of Law.
In December 2013, while Mr Ellington was a serving prisoner at HMP Northward, his wife gave birth to a child. As Mr Ellington’s wife was Caymanian and settled in the Cayman Islands their child was born Caymanian. While Mr Ellington was serving his sentence he applied for an Residency and Employment Rights Certificate (“RERC”) as the Spouse of a Caymanian. When Mr Ellington was released in February 2015 his application was still pending.
A RERC as the Spouse of a Caymanian gives the holder the ability to live and work in the Cayman Islands outside of the Work Permit regime. Unlike an RERC obtained under the points system, the holder of an RERC as the Spouse of a Caymanian can work in any role in the Cayman Islands and pay no annual fee whereas an RERC holder who obtained his RERC through the points system can only work in the job title on his RERC and they (or their employer) are expected to pay an annual fee the equivalent to that of a work permit for their occupation.
Upon his release from custody Mr Ellington was treated as a “tourist visitor” for the purposes of the Immigration Law.
In October 2015, Mr Ellington’s relationship with his first wife broke down and he soon after entered into a relationship with a new woman who he was later to marry. As a result of the breakdown in his first marriage, Mr Ellington’s RERC application was rejected. Mr Ellington’s second wife was also Caymanian and had a Caymanian child from a previous relationship.
Mr Ellington was formally divorced from his first wife on 21 September 2016 and he married his current wife on 1 October 2016.
A new RERC as the Spouse of a Caymanian application was submitted on 10 November 2016. That application was eventually rejected on 27 April 2017 by the Caymanian Status and Permanent Residency Board (“the Board”).
By the time of the rejection of the second RERC application, Mr Ellington was only permitted to stay in the Cayman Islands as a result of an interim injunction obtained on 10 November 2016, preventing his removal from the Cayman Islands pending a leave application to Judicially Review his designation as a Prohibited Immigrant.
Mr Ellington appealed the rejection of his RERC to the Immigration Appeals Tribunal (“IAT”) and while the IAT accepted the Board erred in Law in their initial decision, they declined to grant him an RERC as the Spouse of a Caymanian. The IAT’s “reasoned” decision for rejecting the application was as follows:
“By unanimous vote the Tribunal refused to grant RERC as a result of consideration of the appellant’s character under Section 31(3) (c) of the Immigration Law (2015 Revision), namely his conviction and sentence to 2 years imprisonment… The Tribunal accept that the marriage was stable… but the one allegation that remains is the conviction.”
Appeal to the Grand Court
The Appellant appealed to the Grand Court on a number of basis. The main ground was:
- The IAT had failed to consider the Appellant’s and his family’s Constitutional Rights, i.e. their section 9 Bill of Rights (“BOR”) right to a family and private life.
Position of the Parties
The Appellant’s position was straight forward. As a result of the BOR, the Tribunal were required to consider whether or not it was “reasonably justifiable” to reject his application.
The Attorney General defended the appeal on the basis that:
- Section 9 of the BOR was not engaged by the rejection of the RERC.
- The Factors in Section 31(3) Immigration Law (2015 Revision) (“the Law”) were the only considerations.
Section 9 Bill of Rights
(1) Government shall respect every person’s private and family life, his or her home and his or her correspondence.
(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;
(e) to regulate the right to enter or remain in the Cayman Islands.
Section 24 Bill of Rights
- It is unlawful for a public official to make a decision or to act in a way that is incompatible with the Bill of Rights unless the public official is required or authorised to do so by primary legislation, in which case the legislation shall be declared incompatible with the Bill of Rights and the nature of that incompatibility shall be specified.
Section 31 Immigration Law (2015 Revision)
(1) The spouse of a Caymanian may apply to the Chief Immigration Officer or the Caymanian Status and Permanent Residency Board for permission to reside in the Islands and if such application is successful the Chief Immigration Officer or the Board, as the case may be, shall grant to the applicant a Residency and Employment Rights Certificate for a period of seven years and such Certificate when granted may, upon application, be renewed at the discretion of the Chief Immigration Officer or the Board.
(3) The Chief Immigration Officer or the Board shall take into account the following, namely that-
(a) the spouse of the applicant is Caymanian;
(b) the marriage is not a marriage of convenience;
(c) the applicant is of good character;
(d) the applicant is in good health as evidenced by a recent medical certificate;
(e) the marriage is stable; and
(f) the applicant and his spouse have sufficient financial means to support himself and his dependants listed on the application as accompanying him.
(6) The spouse of a Caymanian shall have no right to reside or be gainfully employed in the Islands unless he is the holder of a Residency and Employment Rights Certificate granted under this section and he shall not be entitled to apply for, or to be granted, a work permit or the renewal of a work permit, but where a work permit is in effect on the date of the marriage he may continue to work under the terms and conditions of the work permit until its expiration.
(7) Notwithstanding subsection (6), whenever the Board or the Chief Immigration Officer is satisfied that there are exceptional circumstances it or he may grant or renew a work permit for the spouse of a Caymanian for a period not exceeding three years in total after which no further permits may be granted or renewed in respect of that person unless the marriage is dissolved.
(9) Where a person who is the spouse of a Caymanian and who has at any time been-
(a) the holder of a work permit;
(b) employed by the Government of the Islands; or
(c) employed in the Islands by the Government of the United Kingdom,
applies for a Residency and Employment Rights Certificate under this section, then in the absence of exceptional circumstances the Board or the Chief Immigration Officer shall approve his application.
In his Judgment Williams J confirmed that not only was Section 9 of the BOR engaged with regard to RERC applications but that the Tribunal had to consider Section 9 when dealing with an application.
- The Plaintiff’s family life consists of his relationships with members of his family. Therefore his relationships with his wife or any relevant children under 18 are considered to be family life that he has a right to have, protected under s.9 of the BOR. The wording of s.9(1) BOR implies a positive obligation on the part of the state to respect existing family life, not just a negative duty to avoid expulsion. If there is a failure to respect family life, the question moves on to whether the interference is necessary or reasonably justifiable in a democratic society for a reason permitted in s.9(3) of the BOR.
- In an application by a person for residency rights under an RERC if their spouse is a Caymanian settled in the Cayman Islands, consideration must be given to both spouses’ rights under s.9 BOR….
- I am satisfied that s.9 BOR arguments in a RERC application or in cases where the remaining parent or child is a Caymanian will come into play and they involve the weighing up of these opposing rights.
As the Tribunal had not considered Section 9 of the BOR Williams J granted the appeal and remitted the matter back to the Tribunal.
Relevance to Other Matters
The Judgment of Ellington has potentially far reaching effects in respect to the Permanent Residence system in the Cayman Islands. For the first time, the Grand Court has stated that Section 9 considerations must form part of a formal decision process when considering RERCs. The question becomes whether or not this case also impacts:
- RERC applications under the points system.
- Revocation of RERCs as a result of a breakdown in marriage.
RERCs under the Points Scheme
Currently, neither the Board, the Director of Workforce Opportunities and Residency Cayman (“WORC”) nor the IAT (when considering matters on appeal) appear to consider Section 9 of the BOR or at least the reasons given for their decisions do not specifically reference Section 9 Paragraph 76 of the Judgement in Ellington, certainly gives support to the contention that a two stage consideration should take place in all RERC applications and therefore there appears to be no logical reason why a decision maker should not consider the applicant (and his families) constitutional rights when considering an application under the Points System.
A decision to grant or reject an RERC under the points system would appear to engage Section 9 of the BOR in that a decision to reject that application would mean that the individual would have to leave the Cayman Islands. Section 37 (4) Immigration (Transition) Law, 2018 makes it clear that a failed applicant would have to leave the Cayman Islands when it says:
(4) Where an application under subsection (1) has been refused and the applicant has not appealed against such refusal or has appealed against such refusal and lost the appeal, the applicant is barred from re-applying under the provisions of that subsection and shall leave the Islands upon the expiration of any period during which the applicant was allowed to work under section 66(4) unless the applicant is entitled to remain by virtue of any other provision of this Law; and such debarment shall continue –
(a) in the case of a worker, until the worker re-qualifies under the criteria contained in this section having taken the break in stay required under section 66(1); or
(b) in the case of a Government employee, for a period of nine years following the date of the refusal of the Government employee’s application or any subsequent appeal in respect of that application.
However, one issue that an applicant would have to overcome in seeking to require a decision maker to apply a two stage test would be the current Law. Section 37 (3) Immigration (Transition) Law, 2018 states:
(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.
Whether Section 37(3) is compatible with the BOR and, in particular, Section 9 and Section 24 of the BOR, is a matter which will need to be determined by the Courts (save for a change in the Law). On any reading of Section 37(3) it would appear that it prevents a Section 9 consideration and therefore might well be incompatible with the BOR.
Revocation of RERCs as a Result of a Breakdown in Marriage
If an individual is married to a Caymanian or to a RERC holder, they can obtain an RERC based upon their marriage. However, if their marriage was to come to an end, the Section 40 (1) of the Immigration (Transition) Law, 2018 states:
(1) Subject to subsection (2), the holder of a Residency and Employment Rights Certificate who is the spouse of a Caymanian or has obtained a Residency and Employment Rights Certificate as a result of his or her marriage to the holder of a Residency and Employment Rights Certificate under section 37(16) or any other earlier analogous provision, shall forfeit his or her rights under that Certificate if –
(a) the holder falls within any of the provisions of section 51;
(b) the holder’s spouse ceases to be a Caymanian or to be a Residency and Employment Rights Certificate holder;
(c) within ten years of the marriage, the marriage is dissolved or annulled;
(d) the holder ceases to be legally and ordinarily resident in the Islands; or
(e) the holder and his or her spouse are living apart –
(i) under a decree of a competent court;
(ii) under a deed of separation; or
(iii) in circumstances where, in the opinion of the Board or the Director of WORC, the marriage has irretrievably broken down.
It would appear that Section 40 (1), like Section 37 (3), leaves no discretion to the decision maker to consider Section 9 of the BOR. In circumstances where the spouse whose RERC is to be forfeited has lived in the Cayman Islands for greater than nine years thus, meaning the individual cannot obtain a work permit, the decision to revoke the RERC may very well lead to that individual leaving.
It would therefore appear likely that where the revocation of an RERC would lead to an individual’s removal from the Cayman Islands by operation of Law, given the fact that they will have no alternative permission, Section 9 of the BOR may very well be engaged and therefore should be considered.
When one adds the potential consideration that the person affected may be the victim of spousal abuse and there is no caveat to exempt those individuals, the Law could very well be challenged and be declared incompatible with the BOR.
The case of Ellington may very well prove to be as important as the cases of Razgar and Huang in the United Kingdom. The Grand Court has confirmed that Section 9 of the BOR is engaged in the consideration of RERC applications and therefore decision makers will have to now consider Section 9 and a failure to do so will likely lead to their decisions being overturned in the Courts.
It remains to be seen whether or not Ellington will have the same effect as Razgar and Huang did in the UK, as no doubt the Department of WORC and the Board will try and argue that the Ellington only applies to a small minority of cases. However, the decision in Ellington should not be minimised. For the first time the Grand Court has confirmed that Section 9 considerations apply to Immigration decisions and it is suspected that this will not be the last time that the Grand Court is required to rule on such matters. It appears likely that more and more decisions in the Cayman Islands will involve (indeed must involve) a two stage consideration along the lines set out in Razgar and Huang.