The burden of proof required for migrants claiming asylum in the Cayman Islands has been reduced
The judgment delivered on May 10 sets guidelines for the way in which asylum cases should be handled in the future, and stems from an incident in 2017 when seven landed Cubans had their asylum applications denied by the Cayman Islands Immigration Appeals Tribunal (“IAT”). The migrants appealed their cases and will now have them reheard after the Grand Court ruled that the government did not properly consider their applications.
Unfair treatment
The migrants’ attorney Alistair David argued that they had not received fair hearings on several grounds including the fact that they had not received legal aid and that the IAT had not sufficiently explained its reasons for denying the applications. The Cubans were provided translators for the hearings, and three of them were represented by a Cuban doctor who is resident in the Cayman Islands. The doctor does not have a law degree, nor is he eligible to practice law in the territory. David also argued on their behalf that members of the group would be subjected to serious human rights violations should they be returned to Cuba.
Lawyers for the Cayman Islands government agreed that the island nation of Cuba could be repressive, but noted that not all migrants were political refugees. Some had left the country for economic reasons including one member of the group who had admitted his time in the Cayman Islands was a temporary step before he planned to travel on to Honduras and from there to the US.
Reasonable degree test
Previously, the IAT did not have set guidelines with regard to the threshold asylum seekers had to meet in order to prove their refugee status. In the past, the IAT instead applied a balance of probabilities test in asylum cases which meant migrants had to show that, more likely than not, they were deserving of asylum status.
Grand Court Justice Ingrid Mangatal, giving the territory’s first written judgment dealing with asylum law, agreed that the Cubans had not had fair hearings before the IAT and the IAT had not informed them of the thresholds that would have to be met in order for them to qualify for asylum. Justice Mangatal further found that the IAT failed to properly define certain important terms which were crucial in determining whether the migrants would be subject to rights violations if sent back to Cuba.
This month’s judgement lowers the burden of proof for migrants as the IAT must now apply a reasonable degree of likelihood test, which means migrants will only have to show that there is a reasonable chance they would be subjected to human rights violations if returned to their home jurisdiction.
It was held that these errors were detrimental to the Cubans’ receiving a fair hearing, even more so because the migrants did not have access to legal aid. Although Justice Mangatal noted that under the Refugee Convention every refugee should have free access to a court of law, she stopped short of declaring that every asylum seeker in the Cayman Islands should be granted legal aid at the tribunal stage.
