(CNS): The Cayman Islands Government’s troubles with the permanent residency system got a whole lot worse on Thursday when the Court of Appeal declared that the Immigration Act is incompatible with section 9 of the Bill of Rights, which deals with family and private life. Two individuals whose PR applications were denied over insufficient points appealed the decisions and the court found that the failure to consider anything other than the points the applicants score is not compatible with the Constitution.

Although this is a narrow point and one that, in this case, failed to assist the applicants involved, it could have far-reaching implications for many other applicants.

The court has effectively ruled that if a person applying for PR presents a good enough argument under section 9 of the Bill of Rights that their family or private life would be detrimentally impacted if they are forced to leave, there should be an alternative means for considering issues not addressed by the point system that could help someone secure the right to reside here even if they fall well short of the points needed.

Leon D’Souza and Joey Buray were both represented in the appeal by Alastair David, a senior associate with HSM Chambers, who argued that their right to a private life was infringed when they did not get enough points and therefore faced an enforced exit from the Cayman Islands, where both men have now lived for more than 14 years.

However, they were not ultimately assisted by the findings of the appeal court. The judges concluded that neither of them had made a case that there was a specific or compelling reason outside of the points they earned that should also be considered. Nevertheless, the court made it clear that not providing another route to residency (other than marriage) to cover exceptional or special circumstances for any applicant breaches the Bill of Rights.

“The absence of any provision which allows for consideration of section 9 factors other than within the points system, and the legislative exclusion of any possibility of granting permanent residence other than under that system are… incompatible with section 9 of the bill of rights,” the court concluded.

The judges said that they should not dictate what parliament should do to remedy the situation, but they pointed to provisions in the UK legislation where exceptional cases or the individual circumstances of an applicant not covered by the point system can still be considered.

“While it is gratifying to see that the Court of Appeal agrees with our submissions that the current law is incompatible with the Bill of Rights, this has been something which HSM Chambers has been raising concerns with for over six years,” David said in response to the findings.

However, he noted that the judgment should not be viewed as meaning that all expatriates will be able to obtain PR. Subject to any legislation change, David explained what the ruling could mean in pratical terms.

“I envisage it will mean that there will be an increase in numbers of expatriates who can stay past their notional rollover date on the basis of their strong family life or private life connections which they have established in the Cayman Islands,” he added.

HSM is representing dozens of clients who are currently waiting on delayed PR application decisions. The firm said it hopes that applications for people who achieved 110 points will move forward and granted regardless of this new court ruling. Some cases have been pending for more than a year, and PR applications via the points system are taking up to 15 months because the Caymanian Status and Permanent Residency Board is still not considering them.

Up until now, individuals who don’t get 110 points have no other way of remaining here and are required to leave the Islands for at least one year. But the government will now need to provide a revised legal framework for the consideration of pending and future applications so that an applicant’s constitutional rights can be considered.

A committee chaired by local attorney Steve McField that is looking at the point system in general will now need to consider this latest ruling when it finally makes any recommendations to Cabinet. But previous committees and reviews have failed to address previous legal rulings to make the immigration act and the system meet the requirements of the Constitution.

CNS has contacted both Premier Wayne Panton and Labour Minister Dwayne Seymour about the appeal court decision, and we are awaiting a response.

See the ruling in full below: