Grand Court Dismisses Permanent Residency Appeal Arguing Infringement Of Right To Private & Family Life. Court Says This Is A Limited Right, Not An Absolute Right.

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By Alric Lindsay

Today, October 9, 2024, the Honourable Justice Asif KC dismissed all grounds of an appeal by Julius Armstrong against immigration authorities.  It was argued on behalf of Armstrong that his pension contribution should have been considered to determine his overall financial stability, points ought to have been awarded for “priority of occupation” and his right to private and family life under section 9 of the Bill of Rights was infringed or not properly considered.

Background

The background of the matter, as outlined by the Honourable Justice, is that 57-year-old Armstrong was born in Jamaica and came to the Cayman Islands in February 1992 when he was 25 years old.

Armstrong’s primary residence is described as being in the Cayman Islands, although he was rolled over on at least one occasion and returned.

In March 2021, Armstrong applied for permanent residency.  This was refused two years later, in March 2023.

Armstrong appealed to the Immigration Appeal Tribunal in March 2023.  The appeal was dismissed in November 2023. 

An appeal was subsequently made to the Grand Court to challenge the decisions of the immigration authorities. 

The Honourable Justice was asked to consider all grounds of the appeal, including those set out below.

Ground:  Pension account should be included in analysis of overall financial stability

One argument raised by Armstrong’s lawyer is that when awarding points for his financial stability, Workforce Opportunities & Residency Cayman (WORC) or the Immigration Appeals Tribunal (IAT) unreasonably failed to consider his accrued pension account. The idea behind this argument appears to be that if his pension had been included in the analysis, Armstrong could have been awarded more points for his permanent residency qualification.

To understand how points are actually awarded for financial stability, it is necessary to examine factor 4 of Schedule 2 of the Immigration Regulations 2019. This involves considering evidence of cash and savings held locally and evidence of salary and income.

 Specifically, factor 4 under the Immigration Regulations 2019 states:

An applicant must prove that he has sufficient resources through income and salary to support himself and any dependants accompanying him. Also his ability to provide sufficient funds for his and their healthcare, education, accommodation and maintenance is of paramount importance for prospective long term residents.

No credit will be given in respect of pension contributions.

The Honourable Justice explained to Armstrong’s lawyer that an argument for his pension account to be included in the analysis of his financial stability was “hopeless” because Armstrong was not at the age where his pension became payable and, as a result, it is not “relevant to his income and salary” when considering points under factor 4 of schedule 2 of the Immigration Regulations 2019. 

The Honourable Justice also reemphasized that the explanation under factor 4 of Schedule 2 of the Immigration Regulations 2019 plainly states that no credit will be given for pension contributions.

The Honourable Justice further indicated that it cannot be an error of law for WORC and the IAT to apply the law as laid down by Parliament.

Ground: No points awarded for “priority of occupation”

Turning to another ground of appeal raised by Armstrong’s lawyer, she argued that WORC and/or the IAT failed to award Armstrong any points for “priority occupation.”

For persons unfamiliar with “priority occupation,” the points system under Schedule 2 of the Immigration Regulations 2019 explains:

1. Applicants will receive maximum points for their current occupation. 

2. The points allocated to each occupation under this Factor will be reviewed and adjusted periodically as needed.

3. The applicant will be awarded points based on the occupation he is working in at the time of the application submission. Where the applicant is unemployed at the time the application is being decided on, no points will be awarded under this category.”

A maximum of 15 points may be awarded for “current occupation” and 15 points for “priority occupation.”

Arguing in Armstrong’s favour, his lawyer said the Cabinet did not provide a list to direct WORC to assess “priority occupation.”  The lawyer added that WORC’s failure to address the lack of a list may have deprived Armstrong of an opportunity to obtain an extra 15 points under the points system.

After hearing arguments, the Honourable Justice explained the rules for considering a priority occupation. To do this, he highlighted the preamble to schedule 2 of the Immigration Regulations 2019.

This states:

1. The Cabinet, in its discretion, may publish a list of occupations specified as priority occupations.

2. Where such a list is published, the Board or the Chief Immigration Officer, as the case may be, in considering an application for permanent residence under section 30, shall take such priority occupations into account.

The Honourable Justice carefully explained that the Cabinet was not mandated to publish a list of occupations specified as priority occupations; it was at its discretion.

The Honourable Justice added that the Cabinet had not published a list of priority occupations, so the immigration authorities were not in a position to consider any list when considering Armstrong’s application for permanent residence.

He further noted that the immigration authorities had no discretion to make up their own list if the Cabinet did not exercise its discretion to publish it.

Entertaining the idea of how Armstrong’s total points for permanent residency could have been impacted if a priority occupation was included, the Honourable Justice highlighted that even if Armstrong were awarded additional amounts for priority occupation, his total under the points system would only have increased from the 70 points to 88 points. This would still be less than the 110 points required under the points system to be considered for a grant of permanent residence.

For these reasons, this ground of the appeal was bound to fail.

Ground: Right to private and family life infringed

Exploring another ground of appeal, Armstrong’s lawyer said that his right to private and family life under section 9 of the Bill of Rights was infringed. Additionally, she requested that the judge declare incompatibility of the points system with section 9 of the Bill of Rights.

Regarding this, section 9 of the Bill of Rights states:

Private and family life

9. (1) Government shall respect every person’s private and family life, his or her home and his or her correspondence.

(2) Except with his or her own consent or as permitted under subsection (3), no person shall be subjected to the search of his or her person or his or her property or the entry of persons on his or her premises.

(3) Nothing in any law or done under its authority shall be held to contravene this section to the extent that it is reasonably justifiable in a democratic society –

(a) in the interests of defence, public safety, public order, public morality, public health, town and country planning, or the development or utilisation of any other property in such a manner as to promote the public benefit;

(b) for the purpose of protecting the rights and freedoms of other persons;

(c) to enable an agent of the Government or a public body established by law to enter on the premises of any person in order to inspect those premises or anything on them for the purpose of any tax, rate or due or in order to carry out work connected with any property that is lawfully on those premises and that belongs to the Government or that public body;

(d) to authorise, for the purpose of enforcing the judgment or order of a court, the search of any person or property by order of a court or the entry on any premises by such order; or

(e) to regulate the right to enter or remain in the Cayman Islands.

To avoid any misinterpretations that some members of the public may have regarding the scope of this section, the Honourable Justice explained that “unlike some of the other rights enshrined in the Bill of Rights… the right under section 9 is not an absolute right.”  Instead, the right to private and family life is a “qualified right” or a limited right.

Dissecting the complexity of what the Honourable Justice explained, it appears that to engage this limited right of private and family life, the following would need to be considered:

1. Whether the party arguing the right has advanced any aspect of family or private life at risk of particular interference as a result of the refusal of permanent residence (such aspect should be other than that which might reasonably be anticipated)
2. If permanent residence was refused, whether the party arguing the right draws attention to any particularly acute impact or hardship which might flow as a result of the refusal (or whether the party’s description of the impact was just as might be expected).
3. Whether the points system already takes into account the considerations being put forward by the party arguing infringement of a right to private and family life (for example, the impact on friendships within Cayman and connections with the Cayman community, and a person’s involvement within the Cayman Islands may each be said to be explicitly addressed within the point system)

In other words, a permanent residency applicant must advance unique arguments that require special consideration outside the points system for the Court to consider that the limited right to private and family life is engaged.

Additionally, when deciding on whether the limited right to private and family life is engaged, it is essential to strike a fair balance between that right and the interests of the community (for example, the need for proper immigration control).

Looking at the specific circumstances of Armstrong’s case, the Honourable Justice did not seem convinced in Court that any arguments that required a special consideration outside the points system were advanced.  Further, the Honourable Justice did not see it necessary to issue a declaration of incompatibility between the points system and the right to private and family life because the Court of Appeal had already addressed that point.

Other matters

Regarding other matters, the prosecution noted that Armstrong’s lawyer named the Immigration Appeals Tribunal in the appeal filing; however, the director of WORC or the Chief Immigration Officer should have been named the correct respondent.

In addition, the prosecution appeared to argue that it is procedurally wrong to include the Attorney General as a respondent.

The Honourable Justice appeared to agree with these points made by the prosecution.

In the circumstances, the Honourable Justice ordered that both respondents, being Chairman of the Immigration Appeals Tribunal and the Attorney General, be deleted and substituted with the Director of WORC as the respondent to the appeal.

Having considered all relevant matters, the Honourable Justice dismissed the appeal.