GEORGE TOWN, Cayman Islands, CMC – The permanent residence system in this British overseas territory received a significant setback when the Court of Appeal recently handed down a ruling which stated that the system does not give sufficient weight to the individual circumstances of an applicant.
Last Thursday, 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 permanent residency applications were denied over low points appealed the decision. The court found that the failure to consider anything other than the points in the applicant’s score is incompatible with the Constitution.
This means that the court has effectively ruled that if a person applying for permanent residence 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 represented in the appeal by Alastair David, 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 lived for more than 14 years.
The judges concluded that neither of them had made a case that there was a specific or compelling reason that should also be considered outside of the points they earned.
“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 they should refrain from dictating what parliament should do to remedy the situation. Still, 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.
A committee chaired by local attorney Steve McField looking at the point system will now need to consider this latest ruling when it finally makes any recommendations to Cabinet.
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