The Grand Court in the Cayman Islands has ruled that the section of the Bill of Rights which governs a person’s right to private and family life must be considered when determining whether a person can remain in the territory
The case concerned a decision by the Immigration Appeals Tribunal (the “IAT”) refusing a Residency and Employment Rights Certificate (“RERC”) to an applicant with a criminal record. It was unclear from the minutes of the decision whether the tribunal had considered the rights of the applicant or those of his wife and child, both of whom have Caymanian status, and weighed them against the rights of the community in terms of public safety.
Justice Richard Williams accepted that the plaintiff and his family’s rights under section 9 of Cayman’s Bill of Rights would be affected by the refusal to grant a RERC and noted that the IAT should have considered the proportionality of its decision in light of the nature and extent of the interference to the plaintiff’s family life.
The Grand Court also held that section 82 of the repealed Immigration Law and section 109 of the current Customs and Border Control Law which automatically designates an individual as a “prohibited immigrant” is incompatible with the Bill of Rights as it creates what is in effect an automatic deportation order. Such a designation, it was argued, does not come with any of the protections afforded to a deportee under other sections of the law such as the right to be informed of the nature of the alleged facts on which the deportation order is made, the right to a hearing and to make submissions or offer evidence. The judge agreed and found the sections to be incompatible with the Bill of Rights.
As the offending legislation came into effect after the Caymanian Constitution, the Grand Court did not have the power to amend it to make it compliant with the Bill of Rights. The matter will instead be referred to the legislature.
