(CMR) The Court of Appeal has declared that the Points System used in granting permanent residency in the Cayman Islands is unconstitutional. This means there could be an increase in the number of expatriates who can stay in Cayman beyond their rollover date due to strong family ties, Alastair David, a senior associate at HSM Chambers, said.
The Court made the ruling in the case of Leon D’Souza and Joey Buray, represented by Mr. David; however, the declaration did not assist their appeal to be granted permanent residency as the Court found they failed to provide compelling reasons outside of the points system.
Last Thursday, 30 March, the Court declared that Section 37 (3) Immigration (Transition) Act (2022 Revision) is incompatible with the constitution, particularly Section 9 of the Bill of Rights, which provides rights to family life and/or private life to residents in the Cayman Islands.
The relevant subsection of the Act, which the Court of Appeal has held is incompatible with Section 9 of the Bill of Rights, is:
“(3) In considering an application for permanent residence under subsection (1), the Board or the Director of, WORC upon applying the criteria set out in the points system, shall only grant permanent residence to all applicants attaining one hundred and ten points or more.”
In the case of D’Souza & Buray, the appellants failed to obtain the required 110 points under the Points System to be granted permanent residency (PR). They appealed on the basis that this infringed on their rights to a private life based on their individual circumstances.
HSM said the declaration of incompatibility would present immediate difficulty in the processing of PR applications, at least those where applicants are assessed to have less than 110 points. Until now, those individuals who did not achieve 110 points under the Points System and had no other way of remaining in the Cayman Islands were required to leave the Islands for at leastone1 year.
The Cayman Islands Government will now need to act to amend the aforementioned Section 37 in order to make it compatible with the Bill of Rights and, at the same time, provide a revised legal framework for the consideration of pending and future PR applications so that an applicant’s Constitutional Rights can be considered, HSM explained.
The law firm, in a release, said while it is difficult to know how the Government will react, it is earnestly hoped that applicants who have achieved 110 points will have their applications progressed to a grant in any event.
This is a particular concern when applications, in some cases, have been pending for more than a year. Currently, applications for PR pursuant to the Points System are taking up to 15 months to be concluded, and it appears that the Caymanian Status and Permanent Residency Board are still not considering them, according to HSM.
This declaration by the Court of Appeal is expected to influence a committee chaired by Mr. Steve McField, a well-known and experienced attorney, which is currently examining the Points System to present their findings to Cabinet.
Commenting on the Judgment, Alastair David shares, “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.”
In regards to the overall effect of the Judgment, Mr. David said, “This Judgment should not be viewed as meaning that all expatriates will be able to obtain Permanent Residence in the Cayman Islands. Subject to any legislation change, I envisage it will mean that there will be an increase in the number 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.”