CJ highlights list of problems with immigration appeals

| 31/08/2015 | 62 Comments
Cayman News Service

Chief Justice Anthony Smellie

(CNS): The chief justice has ordered the Immigration Appeals Tribunal (IAT) to rehear two cases after describing a catalogue of problems in the points given to two women whose applications for permanent residency were refused. In a judgment likely to impact many more future cases, Anthony Smellie pointed to a substantial wrong and a miscarriage of justice and also ruled that applicants cannot not be disadvantaged when the law changes during their application process. He said the law in place at the point of application should apply throughout.

The cases of Michelle Hutchinson-Green and Alisha Racz were considered by the senior judge together because of the similarities in the circumstances surrounding the women, who were refused PR after the tribunal altered their points to increase some categories but decrease others. The changes were made without explaining why or giving the women a chance to argue why points should not have been cut.

Hutchinson-Green, who is Jamaican and a partner in a gardening business, has been in Cayman since 1996. A homeowner with two children, she made her application in 2006 but was finally refused by the IAT at the end of 2013. Racz, who has been in Cayman for 16 years, worked at the Water Authority as an executive secretary and is from Canada.

In the ruling delivered on Friday, the CJ raised concerns about the arbitrary nature of the decisions and the lack of supporting documentation for the points awarded in a number of categories. He agreed with the arguments submitted by the women that the re-awarding of points was irrational. He also took aim at the subjective nature of the policy which is meant to decide how important certain jobs might be.

“It is difficult to imagine a policy that could be more opaque, uncertain and prone to arbitrariness than one by which points are to be allocated to occupations based upon merely subjective assessments of their importance in the context of the local economy,” stated in the ruling.

The judgement reveals that the IAT said it had based its decision to award the points on information that wasn’t seen by the applicants or even produced for the court hearing. This called into question how the points for the women’s positions, skills, salaries and financial security were arrived at and underscored both the arbitrary process and irrational decisions.

In both cases points were deducted when their circumstances had either not changed or where they had improved as a result of increases in earnings and gaining more training and qualifications. In the case of Racz, the IAT also appears not to have considered the property she had bought when awarding her points.

Chief Justice Smellie raised concerns that the decisions of the tribunal pointed to possible bias and found that in both cases it had acted against the principles of natural justice. As he sent the cases back to the tribunal, he questioned the validity of the points charts used and ordered that when the IAT rehears the cases, it does so on the laws in place at the time of the applications and based on the merits of the applications and not on account of any unauthorized documents.

The government was ordered to pay the costs for the applicants’ lawyers as well as footing its own bill in defence of the IAT’s flawed decisions.

Chief Justice ruling Hutchinson and Racz v IAT

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  1. Yachtmaster says:

    I guess that in some strange way, it is working as more and more seem to be not bothering with PR and leaving. Some of them plan to just try and come back in a year and live somewhere else cheaply.
    Most just go to another jurisdiction taking their skills, experience and sometimes their job with them.

    • Anonymous says:

      Yup. When rollover came I just moved along the entire residence and points system is a joke and the Board making the decisions are worse. I’d rather not put myself though the expense or stress of it. I could come back now, but I am loving my current jurisdiction much more than Cayman, and rather than go back I think I will continue to explore new jurisdictions.

  2. Anonymous says:

    I am one of the recent applicants under the new system. Well if you call 12 months recent. We are in limbo and for all I know might be in limbo for another 12 months…. maybe more!

    We have done the leg work and handed over thousands. Seriously, how hard can it be to review an application and pass judgement? I am guessing about an hour tops!

    But no, there will be another move of the goal posts, another thousand to the lawyers, a gloveless lobotomy and probably another election before my little hour gets its day in the sun.

    It really is becoming a joke/embarrassment now to the Island, it just can’t be this complicated!

    BTW: I love Cayman and I highly recommend the history course held at UCCI regardless if you are slated for the test or not (a must for the test). Well worth it!

    • Anonymous says:

      And therein lies the issue. To my knowledge there have been several rulings against EU states over the length of time it took to get things done, be it immigration, court cases or whatever…and lots of money awarded to complainants. These states were deemed to be in breach of Human Rights for failing to carry out what they should have done in a reasonable time frame, resulting in stress, cost and inability of people to plan their lives properly. Here we could face issues with both the courts and immigration for exactly the same reasons.

  3. Anonymous says:

    I think all the processing fees charged to businesses (or God forbid, to the poor employees if they are fronting the bill) for PR applications and appeals which have never been processed need to be returned. In the past year I have been forced to resubmit, resubmit, and resubmit yet again the same cow pie documents that I have already submitted dozens of times before….each time with a tasty little processing fee. In what other business can you charge someone a dozen times for the same service, yet never provide said service? It is outrageous, but we are held hostage by this department. If you complain, you fear, apparently justifiably, that they will just deny the application regardless of merit.

  4. Anonymous says:

    time to sue cig….its the only way they will learn….

    • Anonymous says:

      Yup but what a shame it has to come to this, and that yet more public money will be spent by the CIG defending such a lame case!

  5. Anonymous says:

    It is a shame that other daily administrative processes throughout the public service have not (yet) been challenged in the Courts. It is most likely that the CJ would find serious legal flaws in most. For example, the lack of notification that the so-called “repatriation fee” paid by employers for some WP holders is no longer refundable since 2006. So where does my fee go? No one could answer me. Seems like permissible theft by the Immigration Dept due to unclear or possible illegal policies.

    Another is the unilateral, uncoordinated and unannounced changes to the Public Service Management Law (2013 Revision) and its related Personnel Regulations (2013 Revision) related to the health coverage of retired civil servants, allegedly made by submission of the Portfolio of the Civil Service. These Regulations should be illegal!

    CNS – check these out pleeeeze!

  6. Anonymous says:

    Any household that has gone through the nuanced PR, Naturalization, and/or Caymanian Status processes will have a decade or more of very personal horror stories. My wife used to cry to sleep with legitimate worry over whether some nasty vindictive person would seek to sabotage our application. It was a well-founded worry. Even the secretary to the Dep Gov, at our BOTC Naturalization pledge ceremony, inserted her own bullying personal challenges to the assembled qualified citizens to pass the time her own entertainment. Wholly inappropriate. Not to mention, entire sections of our applications were shredded/misplaced and, with the aid of our Postmaster General for APO, discovered towers of registered domestic mail sitting uncollected for > 6 months at Immigration’s GT PO Box – clearly demonstrating collusion between Immigration and Postal workers to delay or sabotage applications. No charges laid, and nobody fired that anyone is aware of. We have friends that received a letter telling them not to have any more children!

    • Anonymous says:

      But once you are naturalized, taking the oath with your fingers crossed, you can do what you want, and most importantly leave and let someone else print easy money for you.

    • Anonymous says:

      The secretary you referred to was moved to another less important position in the civil service – on the same salary of course.

  7. JTB says:

    Heaven only knows what will happen once the department and board get round to looking at applications under the new rules. What will the courts say to an arbitrary and expensive process for applying for a Permanent Resident status which is neither permanent or a right to residency?

  8. Anonymous says:

    The rollover policy was the beginning of the downfall of the Cayman islands.

    • Anonymous says:

      Dead right. It’s going just as was predicted by the late Desmond Seales in 2007.

      • Anonymous says:

        There has been a roll over policy since at least 1984. It just was not always in writing.

        • Anonymous says:

          And never enforced unless you were a successful business owner that they were trying to get rid of. (I remember they made someone that used to own a popular bar/restaurant promise not to be a part of a successful event that is still on-going today -that HE started- before they would let him stay, back in the early 90’s)

  9. Anonymous says:

    The incompetence is well above the pay grade of the Boards. You are fishing on the wrong side of the street. Cast your net on the other side of Elgin Avenue.

  10. Anonymous says:

    It is incredible that such flagrant abuses have been permitted. Who is responsible?

    • Anonymous says:

      It don’t matter. There is never any accountability. Just a consistent commitment to do what they want.

  11. Diogenes says:

    CIG will have a very simple answer to this. The Boards will simply not process any new PR applications, and the Appeals Tribunal will not hear any appeals still outstanding. That way no one can ever criticise their decisions, but at the same time those hard core voters that hate the expansion of the permanent residency and citizenship will be appeased. The labor shortfall will still go on being provided by expatriates, either by new blood or by long term residents on an endless cycle of renewed working under operation of law [permits pending determination of their PR status. And so it will go on, until some crisis forces action, or another government feels it can blame the need to clear the backlog on their political rivals. Business as usual in Cayman – whether its a dump, a runway, a cruise ship pier, human rights, corruption – kick that can down the road.

    • Anonymous says:

      Diogenes, I see your logic, however that will result in more cases that the crown will lose and possibly even Mummy telling Cayman to sort itself out or Mummy will sort it for us. They can’t have a BOT in clear and repeated breach of HRC guidelines under the Union Jack

      • Anonymous says:

        Grant Shapps, the acting [?] BOTC minister was just here in Cayman but I am sure he was not informed of this development as this story broke after he left, nor could he care less ,however , as acting minister the time may have arrived to see he ( or someone higher up) is informed on how CIG & the Immigration Dept’ treats immigration applicants and appellants. But the silence from the U.K. on this issue is somewhat deafening, despite the fact that Helen resides on 7 mile beach.They may have their hands full on immigration matters on mother soil , I seriously doubt they will want to be involved in Caymans immigration skirmishes to appease disgruntled applicants , despite how atrocious people are being treated . It would be far easier for Britain to use this as another excuse to let Cayman go down the road of independence & cut themselves free. In fact, it would be a golden opportunity for them to push it along, with an ultimatum ? When you add the massive financial debt Alden will put the country in when he pushes the green button on the CBF by himself , the dump ,schools ,immigration woes , crime , financial industry woes , Facta ..Anthony Eden’s anti gay rant , The U.K. could very well come out and say ‘No More, Bobo’ …..

      • Diogenes says:

        First, what makes you think CIG gives a stuff about the cost of losing cases, or for that matter about embarrassment, compared with ensuring they have enough votes to get re-elected? If that was a concern we wouldn’t still be talking about the dump . Second, what makes you think the UK cares about the breach of HRC guidelines absent their being dragged into the ECHR or politically embarrassed? Just need to look at Shapps breezy lack of concern on introducing civil rights for LGBT to see that. As for being sufficiently exercised about it to intervene in local government, come on. Only two occasions I can think of in memory are the decriminalisation of homosexuality and abolition of the death penalty, both rather higher profile and of more concern to the UKs reputation and relationship with its EU neighbours than expatriates seeking residency in a BOT.

        • Anonymous says:

          Diogenes, I hear you, but I also hear and see growing protests in this very organ amongst others and people generally getting sick and tired of blatant abuses here. When the court cases really start the UK will have little choice. UK has been politically embarrassed in ECHR cases before, and whilst it occasionally fights for what it believes is right as opposed to what ECHR believes is right, UK generally gets a slap in the face. Cayman would be an embarrassment it would wish to avoid. But I agree, it will take a few more cases to get that far.

    • Anonymous says:

      Chief Justice Smeille has brought the permanent resident process into the court system and made a ruling that the current process is horribly flawed. That bell has been rung and it cannot now be stopped. The court option and the flawed process will sooner or later be brought to the FCO in the UK and the anything goes here in Cayman will be placed under review.
      It was only a matter of time.

  12. Anonymous says:

    Hear that? The comforting sound of our legal eagles cash registers being upgraded to accept even more money..

    • Anonymous says:

      Not really. Not our target demographic. Not enough cash.

      • Anonymous says:

        1.01, then you will not be my lawyer as I will be going for loss of future potential earnings, compensation for over lengthy delays in the process essentially abusing my Human Rights (several EU countries lost those kind of rulings) plus several other humdingers. Its going to be a large one.

        • Anonymous says:

          Not really. Absent a specific domestic right to compensation all a Plaintiff would get in Strasbourg is a pittance.

          • Anonymous says:

            Privy council known to be more generous

            • Anonymous says:

              The much stronger claim is for recovery of school fees because of the breach of the right to free primary and secondary education.

              • Anonymous says:

                Not true given the strict basis on which expatriate children are permitted to become resident here in the first place, but believe what you want.

  13. Anonymous says:

    I am of the opinion that we should be encouraging educated people to stay in Cayman. But I do believe that we need to curb the amount of poor, uneducated economic migrants that wants to stay. We have enough poverty here now. Lets be real, every person that comes to Cayman from some economic country can start a garden service and give themselves a title of CEO.

    • Anonymous says:

      Of course we need to ‘curb the amount of poor, uneducated economic migrants…’ I do not think anyone disagrees with that. But, and it is a big but, you have to apply the law in a transparent, equitable and timely fashion. You cannot take 7 years to hear an appeal. You can not just avoid your responsibilities year after year and not process applications whilst still collecting fees. You cannot arbitrarily change points to deny a person’s residency. You cannot change the rules in the middle of the game because you do not like the outcome. This will open a floodgate. And it is just the one you so abhore. Because CIG and Immigration did not do the right thing, they did not do the moral thing. They stuck their heads in the sand, and acted like petulant children and school yard bullies.

    • Anonymous says:

      Exactly. Finally someone saying it as it is.

  14. Anonymous says:

    Finally someone has exposed the standard operating procedure of the IAT and indeed the entire immigration department. Arbitrary and irrational, making the rules up as they go without forewarning or explanation. This decision merely scratches the surface of the immigration iceberg. Because few voting Caymanians fall victim to the system and no business can afford to make an enemy of the immigration department by taking them to court or making a formal complaint there is no mechanism for change.

  15. Anonymous says:

    …nothing to see here. Move along.

  16. Anonymous says:

    The fundamental problem is neither with the Boards nor the IAT or even with the Immigration department, all of whom are doing the best they can with what has been handed to them.

    • Anonymous says:

      Absolute nonsense. While the boards are by no means the only issue, they are a big part of it, conducting themselves with arbitrariness and, for the most part, impunity.

      The system of having board members that represent districts is a joke. As if the needs of North Siders are different to the needs of George Towners. Board members should be professionals with some relevant knowledge or experience of their subject, not people plucked randomly from the streets with no management or HR experience (and oftentimes an ax to grind or a friend to favor).

      • Anonymous says:

        Read the rules set by the Government for the Boards to follow. The Boards are in an impossible situation.

        • Anonymous says:

          So stop being a part of an “impossible situation! And speak up!

        • Anonymous says:

          Same sh*t , different day, always someone else’s fault. One day, our Leaders, Govt. agencies, departments and ministries will actually grow a pair and do what’s right instead of pointing the finger and doing absolutely nothing.

          • Anonymous says:

            it’s the expats fault for applying in the first place, that is the reason the board has to act nefariously. The PR system is just for show, how many PR applicants have been given under the new system?

      • Ironstine says:

        board members should be elected not appointed

        • Anonymous says:

          I can imagine the campaigning if election time is anything to go by, “Vote for me and I will say ‘No’ to every application that I possibly can, and to some that I can’t”

  17. Anonymous says:

    The Boards cannot do their job. It is the system that is broken. Government needs to wake up. They broke it.

  18. Anonymous says:

    In the UK all work like this was handed over to HMCTS (HM Courts and Tribunals Service) years ago. It then became an integral part of the judicial system with District Judges normally heading the appeal panels. That move was almost certainly forced on HMG by concerns that the old system of lay tribunals breached ECHR Article 6. The lay tribunals in the UK had turned into a bit of a joke anyway with all sorts of fruit loops sitting on them pursuing their own agendas.

    If you think this decision was damning wait until people with EU passports start to go down a similar road but factoring in the human rights issues.

    The problem now is that, having made a complete mess of it, CIG has effectively handed over the PR process to lawyers and the courts. I would say this is an expensive, messy can of worms opening up here.

  19. Anonymous says:

    Irrational decisions. Bias. Arbitrary. Subjective. I can only say that I am glad that I took my future into my own hands and left. Who would want to leave their lives up to these people? Sheer craziness. Cayman is unstable as a place to put roots. Who in their right mind would invest their livelihoods there if they had an alternative choice? I am so glad that I left.

    • Anonymous says:

      sounds like you have a bone….. are you sure you are GLAD you left? sounds more like you were told to leave .I am an expat and I like it here compared to a lot of other countries I visited before making up my mind to come here .. They are a lot worst than here . Cayman is a young country and has its growing pains . Get over it

      • Anonymous says:

        Yes. I am sure. My “bone” is with the fact that Cayman should be so much better than it is based on the blessings that country has. Yes it’s a relatively young country but that’s not what is causing the “pains”. Greed, corruption and entitlement is what is causing it. Oh, and poor education.

      • Anonymous says:

        An expat who clearly has become integrated into our society which is evident from your use of the word “worst” instead of “worse”.

    • Anonymous says:

      Amen to that. This is going to boil down to, “Would the last ex-pat quitting this mess please turn the lights out and lock the door as they leave,” if CIG don’t get a grip on it.

      As the airlines always say, “We know you have a choice,” and in this case there are plenty of alternative jurisdictions that will happily accept both the professionals and the business opportunities being driven away by this nonsense.

      There are two very simple choices for CIG – you either have PR or you don’t and trying to run a system purporting to offer something that isn’t really there is a huge mistake. I predict when the dust settles on this the legal bills are not only going to be astronomical but CIG will end up paying most of them.

    • Shhhhhh. says:

      Right behind you Bobo!

  20. Anonymous says:

    Essentially applicants must be tested by reference to the version of the rules most favourable to the applicant since the time of their application. This will be very good news for those so the PPM Government tried to treat so badly with their changes to the test.

    • JTB says:

      No. Read it again. Applicants must be assessed according to the rules in force at the time they applied.

      • Anonymous says:

        But looking past this decision to the wider principles of administrative law, the least burdensome test will be the one that will be applied in practice, especially if there has been undue delays.

  21. Driftwood local says:

    The chairpersons and the board of the PR Board and the Immigration Appeals Tribunal need to be replaced now but won’t because they are friends or related to MLA’s in PPM. This is the tip of the iceberg. Too much incompetence and friend friend business goes on with no consistency when decisions are made. The immigration system in Cayman is a joke with different rules for different people.

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