The Cayman Islands court has found that migrants are not entitled to receive legal aid in every instance
In the May 10 ruling, which involved the cases of seven landed Cubans who had had their asylum applications denied by the Cayman Islands Immigration Appeals Tribunal (“IAT”), the court in the Cayman Islands determined that the IAT had committed errors that amounted to a miscarriage of justice. The court went on to note that the right to free legal assistance was not absolute, and the state must consider the burden such a demand may place on the public purse.
During the trial, the appellants had the assistance of a translator and a medical doctor, who acted as a McKenzie friend to assist them with their cases at the tribunal stage however Spanish-speaking migrants often have difficulty understanding their rights under Cayman Islands law and have complained that interpretation services are lacking. While the men had been granted legal aid for their Grand Court appeal, it was announced by their attorney that they would not be afforded such services in future. Justice Ingrid Mangatal stated in her May 10 judgment that it is not incumbent on the government to resort to public funds to ensure complete equality between all sides. She was of the opinion that the most important aspect was that a reasonable opportunity should be given for each side to present their case under conditions that do not place them at a significant disadvantage.
The judge also ruled that this policy does not violate either Article 16 of the United Nations’ Convention Relating to the Status of Refugees which holds that refugees must have free access to courts of law, or section 7 of the Cayman Islands Bill of Rights as set out in its constitution order, which establishes the right to a fair trial and that neither law compels a government to grant legal aid to every asylum seeker at every stage of their application and appeal process.
In light of this reasoning, Justice Mangatal determined that as the Chief Immigration Officer had not been represented by a lawyer at the tribunal phase, the appellants were not at any or any substantial disadvantage due to a lack of legal aid.
The men may now appeal the issue of no legal aid for a fee of $200 or to proceed to the tribunal either without representation or with a self-funded lawyer.
“…neither Article 16 of the Refugee Convention nor Section 7 of [the Bill of Rights] can be construed as to mean that the government is obliged to grant legal aid to every asylum seeker at each and every stage of their applicant and subsequent appeal process. There is no ideal in this world and public funds are scarce.”
Justice Ingrid Mangatal
In 2017, the government announced its intention to create a policy and procedure manual which would be given to all migrants upon arrival in the Cayman Islands and which would explain the asylum process in the territory, however there is uncertainty as to whether this has been done. In response to concerns by members of the tribunal regarding asylum matters, the government is now in the process of establishing a dedicated tribunal for asylum matters which will be called the Refugee Protection Appeals Tribunal appointed by Cabinet, with effect from February 27 whose members would receive specialist training by immigration judges in the United Kingdom. Once rules of procedure for the new tribunal have been drafted and approved, the tribunal should begin hearing asylum cases as early as late June.
