The attorney general has won a case in the country’s final court of appeal over a Cayman court’s declaration that the islands’ points system for permanent residence breached human rights.
The Privy Council in London on Monday upheld the attorney general’s appeal against a decision by the Cayman Court of Appeal, which in 2023 dismissed bids by two failed applicants for permanent residence, but made a declaration that the residency rules were incompatible with the Bill of Rights.
The two rejected applicants had argued that areas of the immigration legislation were at odds with the right to respect for private and family life enshrined in section 9 of the Bill of Rights. Under immigration legislation, if an application is refused and the applicant does not appeal, or loses an appeal, that individual is required to leave the islands.
The attorney general was represented by Tom Hickman, KC, and Will Bordell, of London’s Blackstone Chambers, at the Privy Council hearing on 3 Feb.
The Cayman appeals court in 2023 had ruled that a requirement under the Immigration Act for a minimum of 110 points — based on age, career, education, financial stability and ties to Cayman, among other considerations — to be achieved to get permanent resident status was incompatible with the Bill of Rights.
In a written judgment by Lord Leggatt, issued on behalf of the five-strong judicial panel, the judge said that ruling by the Cayman Islands Court of Appeals was “misplaced”, and had been based on an “abstract and theoretical” situation, as it did not apply to the case of the two rejected applicants before it.
He said, “The board concludes that the Court of Appeal was wrong to decide whether section 37 of the Immigration Act – and/or the points system – was compatible with section 9 of 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.”
Leggatt added that the Court of Appeal had not distinguished between refusal of a permanent residence application and the inability to remain and continue to work in Cayman.
The attorney general’s legal team had noted in their argument before the court that Cabinet, under the Immigration Act, has the discretion to exempt an individual from the provision of the legislation and grant that person residency in Cayman.
The Privy Council judges, in their ruling, noted that this meant that a statutory provision exists that allows for consideration outside the permanent residency points system of the right to respect for private or family life protected by the Bill of Rights. It also meant that Cabinet had a duty to exercise the power conferred by that provision to permit a person to remain and continue to work in the Cayman Islands if their removal or deportation would violate the Bill of Rights.
“There is therefore no incompatibility, as the Court of Appeal believed there to be, between the relevant legislation and section 9 of the Bill of Rights,” the judge said.
He noted that a refusal to grant permanent residence “does not itself prevent the applicant from continuing to enjoy private and family life within the territory.
“What would do so is removal or deportation. Provided the individual is permitted to remain and, where relevant, continue to work, it cannot be said that there is a breach of the right to respect for private and family life just because the individual is not accorded a particular type of residence status.”
