Parts of Customs and Border Control Law, 2018 Declared Incompatible with the Bill of Rights

For the first time since the introduction of the Bill of Rights (“BOR”), the Grand Court has ruled that Section 9 of the BOR “the Right to a family life and private life” has to be considered by the Immigration Appeals Tribunal when considering whether a person can remain in the Islands. It must follow that such considerations must be applied by other agencies of the Cayman Islands Government when individuals rights are engaged and will be potentially be infringed.

The Grand Court also held that the automatic designation of a Prohibited Immigrant status upon an individual, in this case on the basis of a Court sentence of over 1 year, is incompatible with the Bill of Rights.

HSM Chambers appeared on behalf of the successful Plaintiff.

In relation to Section 82 of the repealed Immigration Law (2015 Revision) and Section 109 of the current Customs and Border Control Law, 2018 Justice Williams held that:

“The automatic designation of PI, with a consequence of what is in effect an automatic deportation, in the absence of any provision enabling a review to be conducted taking into account BOR considerations in particular the right to Family Life, makes s.82 of the Law and s.109 of the Customs Law incompatible with the Bill of Rights…”

The Court further accepted that the Plaintiff and his family’s Section 9 Rights are engaged when considering whether or not to grant a Residency and Employment Rights Certificate. Justice Williams confirmed that:

“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.”

Alastair David, Associate with HSM Chambers, who successfully represented the Plaintiff commented on the Court’s decision. “Once again, the Grand Court of the Cayman Islands has made it clear that not only does Justice have to be done, it has to be seen to have been done. It is hoped that the Department of WORC, the Department of Customs and Border Control, and the Immigration Appeals Tribunal will consider this judgment very carefully and put in place systems which will ensure that all individuals’ constitutional rights are considered. Equally, it is hoped that the Law will be amended to ensure that the rights of all individuals will be respected.”

This is the second Judgment from the Grand Court in less than a year in which an Appellant has been successful in arguing that the decision of the Immigration Appeals Tribunal was defective on the basis of a lack of reasoning following on from the asylum decision in the case of HS & Others in which HSM Chambers were also instructed by the Appellants.

One consequence of this decision is that there are likely to be more Deportation hearings in regards to those individuals who are foreign nationals and who commit crimes of sufficient seriousness.

In the current matter, the Grand Court was not in a position to have to consider re-writing legislation in order to make it compliant with the BOR, because the legislation concerned came into effect after the BOR. It will be a matter for the legislature to amend the Law in order to ensure its compliance with the BOR and it is hoped that this will happen shortly.