Family rights trump ex-con’s deportation
(CNS): A case decided in the Grand Court last month could have lasting implications for the immigration department’s ability to deport people convicted of crimes. Justice Richard Williams found that a Jamaican national, who was the getaway driver in a 2013 supermarket robbery, should not be deported because of his right to a family life. The attorney general is appealing the case but as it stands now, Alastair David, the HSM lawyer who handled the case, said it could prove to be a very important one.
Ian Fernado Ellington came to the Cayman Islands in 2007 as a work permit holder and lived what his lawyer called an unremarkable life. In August 2013 he married a Caymanian woman and a month later was involved in a robbery at Chisholm’s Grocery in North Side. Ellington pleaded guilty to accessory to robbery, as he admitted being the getaway driver, and was handed a two-year prison term.
Ellington served his time. But while he was in jail, his wife gave birth to their child and he applied for a Residency and Employment Rights Certificate (RERC) as the spouse of a Caymanian. When he was released in 2015 that application was pending, but Ellington had, by virtue of his sentence, become a prohibited immigrant.
Explaining his client’s case, David wrote in an article on the law firm’s website that in October 2015 Ellington’s relationship with his wife broke down. Soon after that, he entered into a relationship with another woman, whom he later married.
Given the breakdown of his first marriage, on which his residency application was based, it was rejected. However, Ellington made a new application in November 2016 based on his second marriage, also to a Caymanian woman.
That application was rejected in April of the following year, a decision he then appealed to the Immigration Appeal Tribunal. But the IAT found that while the Caymanian Status and Permanent Residency Board had erred in law regarding their position on Ellington’s second marriage, the issue of his conviction was enough for his application to be rejected.
By this time Ellington was allowed to remain in Cayman only as a result of an injunction preventing his deportation because of the legal challenges he had filed against the decisions, including a pending application for judicial review against his automatic status as a ‘prohibited immigrant’.
Following the IAT’s finding, Ellington went on to appeal that decision in the Grand Court, where David argued on his behalf that section 9 of the Bill of Rights, which protects the right to a family life, should prevent his deportation.
Lawyers for the Attorney General’s Office representing the tribunal argued that section 9 of the BoR was not engaged and the only consideration in the case was the immigration law, which calls for the rejection of residency for those with criminal convictions where a jail term of 12 months or more was imposed.
However, Justice Williams did not agree.
In his judgment he found that not only was section 9 of the BoR engaged but that the IAT had to consider it when dealing with applications. The judge pointed out that his family life consists of his relationships with members of his family and the Bill of Rights “implies a positive obligation on the part of the state to respect existing family life”.
He said, “If there is a failure to respect family life, the question moves to whether the interference is necessary or reasonably justifiable in a democratic society…”.
He also pointed out that consideration had to be given to the rights of Ellington’s wife and child, adding that he was satisfied that section 9 of the Bill of Rights comes into play in residency applications where the remaining parent or child is a Caymanian. Justice Williams granted the appeal and sent the case back to the IAT.
In his analysis of this case, David wrote that the judgment had “potentially far reaching effects in respect to the Permanent Residence system in the Cayman Islands”.
He continued, “For the first time, the Grand Court has stated that section 9 considerations must form part of a formal decision process when considering RERCs. The question becomes whether or not this case also impacts RERC applications under the points system or the revocation of RERCs as a result of a breakdown in marriage.”
If the case is upheld after appeal, it could impact the controversial area of spousal abuse, where a partner leaves a violent situation only to be deported, even when they have Caymanian children. David wrote that where the boards now do not consider the right to family life, the decisions are likely to end up before a judge and be overturned.
He said he expected the Workforce Opportunities and Residency Cayman (WORC) unit and the Board will try and argue that this finding only applies to a small minority of cases.
“However, the decision in Ellington should not be minimised. For the first time the Grand Court has confirmed that Section 9 considerations apply to Immigration decisions and it is suspected that this will not be the last time that the Grand Court is required to rule on such matters,” David added.
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Every country are deporting their Jamaicans criminals why are we keeping them?
We actually seem to import a number of them.
CNN, please don’t use that ridiculous man’s name in your headlines. He is respectfully referred to a Fartman.
I doubt anyone realises that there was a case even worse than this where the man (Jamaican) committed a violent and brutal rape of a tourist at the westin some years ago. He didnt get caught until a few years after the crime and had a long sentence. he did half or something and got out and is still here either becaudse he had a wife and kids or because the wife worked at immigration. never heard a word about that one.
This is the same matter 11:28 refers to. Human Rights preserve rights of criminals whilst sometimes putting wider community at risk. This is why UK is getting out of EU. I feel for their kids but perhaps it’s best for them too. I certainly feel it’s true for my kids safety at least. Sorry.
No such thing as an ex-con.
Nelson Mandela.
You’re just wrong.
Most of the comments on here are wrong, which is understandable because the story itself is inaccurate.
Justice Williams did NOT rule that this individual’s right to a family life trumps any attempt at deportation. He held that there cannot be a blanket, automatic rule that all convicted criminals be deported. Each case must be considered on its own merits and HR issues (such as the right to family life) must be taken into account. When the case is reconsidered it’s perfectly possible (even likely) that deportation will be the result, and that will be fine so long as the decision is rational and fair.
The CJ already made the same decision regarding a very serious and dangerous convicted rapist married to a Caymanian with kids. The CJ overturned the decision of the IAT to rescind his status on the basis of his character and criminal conviction which it had the right to do by Law. Again his right to remain on the Islands with his family took priority over public interests. The Island is far too small for this. It’s bad enough when you have your own that are criminals but when you have serious criminals that are not originally from Cayman and you cant deport them, then we really have a problem. As they say, where are my rights and why do their rights trump our rights. This is the new Cayman and its here to stay.
And the government legal department/government never appealed. There is a substantially imported criminal element here, mostly due to government failings.
The laws are written for the criminals.
2:31pm The criminals have more rights than the upright citizen. Something needs to be done about Marriages of Convenience. Too many men and women from across the pond are using it as an anchor to hitch on to a Caymanian and in the process bring along their luggage (children).
All expats that are convicted criminals should be deported with no exceptions, if they married to Caymanian , then his wife can go with him. Caymanian don’t want these criminals period .
How is this guy able to afford the legal fees involved in all these cases, appeals etc?
Are we payng for that too or is he using his cut from the robbery?
1:18pm. Until we purge the Legal an Judicial there will always be them against us. Tax payers usually pay for criminals legal fees, that’s their human rights. The upright and law abbiding citizen doesn’t have any rights.
Why are people so shocked by the ruling??! The real travesty here is that this cycle of Caymanian women marrying men that are just using them (for Status) continues to bring this country down! I’m not surprised that this judge made that ruling. Caymanians are too lackluster when it come to seeing the BIG picture. Their home is being taken over, and yet they make no stride to take their rightful place.
Here we go again. Usual pitchforks rubbish from Cayman’s “Christian” community…
So quick to jump to his defense after all he did and will do. There is no accountability ever. I thought all Jamaicans that came to the Cayman Islands were law abiding, hard working, forthright citizens that the Cayman Islands cannot do without. And all crime is apparently committed by caymanians only.
10.44pm Your last sentence – not all, but very nearly all.
Our people are more easy to identify. People know the criminals because we went to school with them, live next door to them or are related to them. It’s much easier to turn them in or for Police to profile them based on previous behavior.
As for expats, it’s much harder because there’s no record and most of us don’t know people’s backgrounds.
So basically all a crook needs to do is knock up a dumb female and we’re stuck with a criminal for life…. Great. Trash trash and more trash.
The judgment is not that the right to family life trumps everything else, but only that it should be considered. If the IAT had said that they had considered it carefully but felt that the social consequences of allowing a convicted criminal to remain outweighed that right, they would have been golden. They basically failed to apply the law.
Didn’t he willfully give up his right to family life, when he chose to be a criminal? Where is the justice for the victims and families? Looks like ‘justice’ sucks big time to me. Do the crime and then plead family rights after. Then go on your merry way. God help us.
Exactly correct. Thank you!
No, basically all the prosecution needs to do is ask for a deportation order following sentence, and all immigration has to do is closely monitor everyone charged with an offense.
So basically its okay to keep someone, not from here, that is involved and convicted, directly or indirectly, in a violent crime based on whether that person has children here or not?
I am completely confused now.
Next we will be like Seattle, armed groups taking over blocks and demanding protection money…..
Tell my boys to dig up the tools, we gonna start making money and do it under the protection of the Human Rights law……
Finger in the air……bang bang bang
This has been happening for years. Same for divorce. As long as the father can prove he can do for his children he can stay. As the mother is not working and dont want to work. All Jamanican men on this island work so. You see any Cayman boys going work in the mornings in bright yellow shirts?
They doing for children here and sending home money to their real wives and children. Its not new actually.
And all because our immigration law and maintenance law are not being followed!
There is a clear need to amend the law to make consideration of immigration status a mandatory part of pre-sentencing assessments. The assignment of 1 or 2 immigration officers to provide this information on every case would save hundreds of thousands in the flood of similar cases that will undoubtedly arise as a result of this decision.
There is also a clear need to provide immigration and the appeal board a step-by-step manual on how to set out reasoning so that this type of fu#$-up does not happen again.
It has been provided, and ignored, for well over a decade.
Immigration 101 for foreign criminals – arrive in Cayman as a visitor- work hard knocking up a few women with status, marry one, and do as much crime as you like. Simple, no worries – be happy. WTF!
EXACTKY!! When he committed the crime he lost his human rights. He should have been forced off there and then.
Yes, but they let him stay, and then he procreated, and then, after letting significant time pass they suddenly decided he had to go.
Too late!
That is what politically directed lax immigration enforcement gets you.
He should go to USA and committ that crime or any other one and see how good he would had feared off as his green card or US passport would be DECLINED and he would be DEPORTED back to Jamaica as he left prison. Thy always trying to GINNAL somebody
Dos he arrive here a criminal?!? Thought the article said the crime occurred after he married a caymanian and arrived in cayman?
He needs to be deported and stop the foolishness. No lawyer is needed to argue his case and all the stupid Caymanian women that LETTING THESE Yardie men come here and impregnate you all to get status need to wake up. The have women and wives back home in Jamaica with young kids. Too much of the convenience marriages going on here and Government needs to STOP them.
100% agree. If the courts and high collar lawyers are going to help us import criminals then we as citizens need to do away with the justice system and police as they will become irrelevant. This is why crime will never stop only get worst around here in this country that focus on the “grey” line instead of right and wrong. He is an adult tell me he didnt know all the possibilities of his life before committing the crime? He should exit gracefully. Second chance is waiting on him elsewhere go on.
4.57pm Are you suggesting that only status holders marry foreign criminals?. His first wife is described as “Caymanian”.
Which means she has status. It does not describe how she got it.
1.14pm Sorry, and to your thumbs up, the terms are “Caymanian” and “paper Caymanian”. There is no mention of status.
Status is what makes Caymanians Caymanian. Paper, or otherwise.
Come to Cayman, knock up a local woman and presto! you are an undeportable permanent resident with right to work. As Mr. Bumble said, “If the law supposes that, the law is a ass—a idiot.”
More bleeding heart liberal BS! This proves criminals have more rights than the average upstanding citizen.
3:53pm Why are these people marrying less than and encouraging criminality here? Stop importing criminals and giving them status.
If you don’t like liberals so much let’s go back to what conservatives want, slaves again.
I’m conservative. My family didn’t have slaves, I didn’t have slaves and
never want one. Damn liberals are that no morals.
You prefer anarchy?
You know bloody well that’s not what liberals want. Stop watching Alex Jones
This whole issue arises for one reason only. The Government Legal Department consistently fails to seek deportation as part of the sentencing. They have been long made aware of the issue, and do not even seem to take proper note of the immigration standing of defendants, including treating non Caymanians as if they are Caymanian.
This is not about different justice based on nationality. The punishment should be the same no matter. The question: is at the end of sentence, do you release foreign nationals into the community, or do you drive them to the airport? The failure by government to deal with that is the reason the court had to do what it did. The law clearly expects foreign prisoners to be taken to the airport on release, but if government refuses to do what is needed, what do we expect?
The Island has a substantial of foreign criminals here for this very reason.
A dangerous precedent! Blanket approval for any foreign national who is of a criminal type to secure their tenure in Cayman. “If I ever get caught all I have to do is marry a Caymanian and have a child”.
Who said anything about marriage?
read the article
And don’t forget about the United Nations Convention on the Rights of the Child of which the UK is a signatory. There is a landmark case from the Supreme Court of Canada on the Convention which surprisingly also involves Immigration and a Jamaican national. https://en.wikipedia.org/wiki/Baker_v_Canada_(Minister_of_Citizenship_and_Immigration)
The under-qualified boards in Cayman are seriously lacking in the ability to construct logical and legal administrative decisions which often enter the realm of nonsensical. Look past your racism, nationalism or whatever you want to call your bigotry, and look at how far this decision advances legal rights for everyone in Cayman. Hats off to Alistair David at HSM!
Hopefully Mr. Ellington understands how lucky he is and works to redeem himself, if he hasn’t already done so.
2:00 pm. Criminals are not one time actors.
Seriously, this judge couldn’t see a pattern going on here… XXXX
CNS: The assumptions you have made are utterly irrelevant. The judge came to a decision based on the law, not what people may or may not do or what you think about it. That’s how rights work.
So CNS, do victims have rights?
CNS: Of course. What a silly question. Also not relevant.
Yes they do. Butttttttttt.
But it obviously comes in last compared to a convicted persons. I gonna start being a criminal and cry foul (human rights) every time somebody tries to stop me from being a successfull criminal.
Thumbs Up for the CNS reply. 👍🏽 👍🏽
I know that many persons will be upset by this ruling, but before that happens, I just want to say that I am glad that this has happened. The biggest reason: enforcement of child maintenance orders against these men. Perhaps the time has come that once you are allowed to remain here, you are under an obligation to provide for your children. You can’t get an RERC renewed unless you are gainfully employed and showing that you are providing for your children. Mandatory maintenance payments should be the norm in the Cayman Islands.
Right, like that will get them to pay child support..There are many here that don’t pay child support so I don’t think being in Jamaica or elsewhere will make much of a difference..
For those who don’t know, one of the biggest issues facing the Cayman Islands is not persons who have been convicted, served their sentence and then get the chance to stay. It is the host of fatherless children running around these Islands. As someone who works directly with charitable organisations tasked with providing care for these persons, the number of women who have children for 3 or 4 different men, none of whom are here in the Cayman Islands for one reason or another lends itself to a situation where these children end up in foster care, at which point if there is no intervention, they end up being involved in gangs and end up in prison and the cycle continues. When you speak with these women the stories are all the same.
At some point we as a nation have to come up with strategies to break the cycle. Recently there was a proposal to change the laws to recognise common law unions. That seems to have died a natural death. I have always been of the view that at the same time that Immigration is forcing persons to do DNA tests to prove paternity, they should also be ensuring that mandatory court orders are in place for salary deductions to take place for the support of children. There are many ways that this would work. There are reciprocal arrangements that can be put in place that if the father even leaves the Island, that order is enforced wherever he goes. The world is linked together to the point where you can find criminals wherever they may be hiding. Children deserve support and the time has come for men to be held accountable (and women too).
Rather than berating the fact that someone who has been convicted of an offense has been allowed to remain in the Islands, we should ensure that men such as those are given the opportunity to rehabilitate themselves and contribute to society.
The attorney general seems to refuse to enforce the Maintenance Law. That is where your issue lies.
Our issue is with our AG. Been saying it for years. They need to replace that man. We need an AG with a spine and an iron fist. Enough is enough.
The problem here is that they work under the table which is very easy and tell the court that they don’t have a job. Unless we had something like Social Security numbers here in order to get a job, we’ll always have this problem. My ex told the court all the time that he wasn’t working or only showed his pay slip for one job when he was working other jobs.
Absolutely correct and perfectly surmised. This needed to come to light and argued. Most interesting indeed. Looking forward to future debate on this ruling.
1:10pm – he could wire the funds for child support. Remember our budget is based on the incoming wires from Jamacia. Pile of 💩
WOW, only in cayman….. HSM representation ? Who’s paying for that ?
Not only in Cayman. The UK government tried for years to deport an Islamic hate preacher who supported the death of British citizens. They couldn’t because he had a wife and several children in the UK. All living on welfare of course.
And all because the UK should have taken greater care as to who it lets in, and who it lets stay. Same problem here. Once you let rogues in, and you identify they are no good, remove them at the first opportunity. Leave it too long, and you risk being stuck with them forever.
Better to be more careful as to who you let in (and on what basis) in the first place. Cayman has really screwed that aspect up, big time!
This is what has ruined the UK, so worried about looking racists they’d let their own suffer. we need leaders to be fair but not to forget their own citizens.
4 children, 3 jailed for fraud, theft, money laundering, 1 for violent disorder…but for some reason their ‘right to family life’ trumps their victims rights.
Perhaps HSM recognizes the importance of access to justice and does what it can to work with deserving appellants to establish important legal principles? You know, stuff like the rule of law.
You had me at justice… 😉