UK court rejects CICA PR point system declaration

(CNS): The Judicial Committee of the Privy Council in London has found that the Cayman Islands Court of Appeal (CICA) was wrong when it made an “entirely abstract and theoretical” declaration that the point system used to determine permanent residency applications here is incompatible with the Bill of Rights. In an unusual theoretical case, Attorney General Sam Bulgin appealed the declaration to the final court of appeal for Cayman. The JCPC said the finding of incompatibility should have been, but was not, related to the facts of the case.

The CICA made the declaration after the Grand Court upheld two appeals in cases where PR applicants had been refused permanent residency based on a lack of points. However, the declaration was not based on the specifics of those cases.

The Cayman Court of Appeal had agreed with the Grand Court that the two applicants’ rights hadn’t been breached and upheld the lower court’s decision on them. But the appeal court also found that the points system could, in other circumstances, breach the right to a private and family life.

Given such a declaration that the points system could be unconstitutional, the government sought to challenge the finding through the Judicial Committee of the Privy Council. The two people involved in the case didn’t appear, since this had become a broader issue with no bearing on their cases but wider implications for the system.

In the ruling delivered Monday, the JCPC said that courts do not have the authority “to pontificate on any matter they please”. They should decide disputes between the parties before them and provide remedies where claimants’ rights have been breached.

“In these circumstances the basis for the finding of incompatibility which the Court of Appeal nevertheless made was entirely abstract and theoretical. It did not relate to any feature of the claimants’ cases or which the claimants had identified. Nor did the Court of Appeal itself identify even a single example of a possible future case or class of case in which it would or might be necessary, so as to avoid a breach of section 9 of the Bill of Rights, to grant permanent residence to a person whose application did not meet the requirement in section 37(3) of the Immigration Act,” the JCPC found.

In the ruling, the UK court said the circumstances were “not a sound or satisfactory basis for making a finding of incompatibility” and that court proceedings were “unsuitable as a means of deciding questions in the abstract, unmoored from the facts of an actual dispute”.

The JCPC concluded that the Court of Appeal was wrong to decide that the Immigration Act’s points system was compatible with the Bill of Rights when, even on the most liberal view, that question did not arise on the facts of the cases under appeal to them.

See the full ruling here.