(CMR) A mother who failed to mention her child in her initial application for permanent residency is seeking the court's intervention after the Immigration Appeals Tribunal refused to add her child as a dependent to her Residency Certificate.
Amoy Subrina Yankana (34), a Jamaican national whose mother is Caymanian and who has Caymanian siblings, has claimed this decision by the Immigration Appeals Tribunal (the first respondent) dated 14 March 2024 was unreasonable and not in accordance with the Law. Therefore the matter should be remitted to the Tribunal to be reconsidered and decided according to the Law.
According to the court document filed by attorney Harvel Grant, the Tribunal's decision amounts to a breach of the appellant’s Section 9 rights as protected by the Bill of Rights.
It further stated that the view of the Caymanian Status and Permanent Residency Board (the 2nd Respondent) that the Tribunal's decision was not unreasonable or erroneous is an error of Law.
The court document also noted that both the Immigration Appeals Tribunal and the Caymanian Status and Permanent Residency erred by implying that because the appellant had not declared her daughter on her original application, she could not now apply to add the Child as a dependant on her Residency Certificate.
Yankana, a resident in Cayman since 2009 who is employed as a domestic helper for over 13 years, was granted a RERC pursuant to s.30 of the Immigration Act (2015 Revision) on 21 December 2020. On 22 September 2021, she submitted an application for the variation of her RERC to add the Child to her RERC.
By letter dated 17 March 2022, the Caymanian Status and Permanent Residency Board deferred the Variation Application as it sought additional information in the form of bank records from the Appellant’s mother, who wrote in support of the Variation Application.
On 5 April 2022, the Appellant’s Attorneys wrote to the 2nd Respondent enclosing a copy of the requested financial information.
On 15 September 2022, Caymanian Status and Permanent Residency Board wrote to the Appellant indicating that the Variation Application had been refused on the basis that the Appellant had failed and/or neglected to disclose that the Appellant had a dependant pursuant to s. 37(8) of the Act.
This section of the Act states: “When applying under this section for the right to reside permanently in the Islands, the applicant shall provide full particulars of that person’s spouse or civil partner and all dependants, whether or not it is intended that they would accompany the applicant if the applicant’s application is successful, and the failure to provide such particulars in the application is an offense.”
In a letter dated 19 October 2023, the Tribunal refused the Appellant’s appeal, agreeing with the Decision of the the Caymanian Status and Residency Board.
In arguments to have this decision overturned, the appellant submit that the Decision of the 1st Respondent and 2nd Respondent to refuse the Variation Application under s. 37(8) was erroneous in law.
Section 37(8) clearly provides that, “the failure to disclose such particulars in the application is an offense”, but this Section doesn’t provide for an automatic refusal of a future application to add a dependant, the court document added.
It also noted that Section 37 (8) provides for no penalty for the offence under this Section, and therefore Section 80 of the Act applies. Section 80 sets out as follows:
“A person who commits an offence for which no penalty is liable-a) on summary conviction, in respect of a first offence, to a fine of fivethousand dollars and to imprisonment for one year; or,b) on summary conviction, in respect of a second or subsequent offence,to a fine of ten thousand dollars and to imprisonment for two years and where any such offence is a continuing offence, the person guilty of the offence shall, in addition to any punishment provided by this section, be liable to a fine of five hundred dollars in respect of each day during which the offence continues .”
Section 80 only provides for fine and imprisonment and there is no automatic right to refuse or any penalty to refuse a subsequent application.
According to the court document, the Appellant's strong claim to a private and family life in the Cayman Islands is unarguable. She is an RERC holder, a British Overseas Territories Citizen, and with 14 years of legal and ordinary residency on Island. The Appellant’s mother is Caymanian and the Appellant has 4 siblings who are also Caymanians.
It also noted that the Child has been abused while residing outside the Islands and there is no reliable person to care for the Child outside of the Cayman Islands. The Appellant is the sole parent of the Child and the Child is her only child.
The Child is also enrolled in private school and is scheduled to do final external examinations in less than 3 months. Should the Child be required to leave the Cayman Islands would result in her facing hardship, the document added.
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