Jamaican National Who Failed To Obtain Sufficient Points Under Points System Challenges Immigration Appeals Tribunal In Court For Not Granting Her Permanent Residence

By Alric Lindsay

According to a Notice of Originating Motion stamped by the Grand Court on July 18, 2024, Judith Simmonds is asking the Court to order that her matter be reheard before the Immigration Appeals Tribunal, which refused her a Residency & Employment Rights Certificate. The basis of her requests is that the Tribunal’s decision was allegedly unreasonable, an error of law and a breach of natural justice.  In addition, she wants the Court to make a declaration that the Tribunal “must consider an applicant’s right to family life and private life pursuant to Section 9 of the Bill Of Rights when considering whether or not to grant or reject an application for Permanent Residence.”

Background

Based on the Motion, the Immigration Appeals Tribunal rejected Simmonds’ application for a Residency & Employment Rights Certificate on March 14, 2024.

Allegedly, the Immigration Appeals Tribunal’s response was as follows:

In considering an application for permanent residence under subsection (1), the Director of WORC upon applying the criteria set out in the points System shall grant permanent residence to all applicants attaining one hundred and ten points or more.

In this particular case, the total score attained is 80.50 points.

On April 19, 2024, Simmonds submitted a reconsideration application to the Immigration Appeals Tribunal.

On June 20, 2024, the Immigration Appeals Tribunal dismissed the reconsideration application, upholding the March decision.

Simmonds maintains that the decision was wrong in law or was an error in law

First, Simmonds alleges that the Immigration Appeals Tribunal’s decision was wrong because:

• the decision failed to conclude that the decision of the Director was contrary to Section 9 of the Bill of Rights and, therefore, amounted to an error of Law.
• the decision failed to conclude that the failure of the Director to stay the decision in her case, pending the decision of the Privy Council, was unreasonable.

She indicated that, instead of refusing her application, the immigration authorities should have proceeded as follows:

• reviewed her application pursuant to the points system.
• upon concluding that she did not achieve 110 points, consider whether or not she had a Section 9 Bill of Rights right.
• if the Director concluded that she had not established a Section 9 Bill of Rights right, reject the application.
• if the Director concluded that she established a Section 9 Bill of Rights right, then he should have notified her that the application was deferred pending the decision of the Privy Council.

According to Simmonds, because the Director allegedly failed to carry out a process similar to the above and the Immigration Appeals Tribunal upheld the Director’s decision, the Immigration Appeals Tribunal acted unreasonably/erred in Law.

Process unfair and a breach of natural justice

Simmons argued further that the Immigration Appeals Tribunal allegedly:

• failed to ensure that the process of applying for and obtaining a Residency & Employment Rights Certificate post the decision of the Court of Appeal was a fair process for those individuals who had a Section 9 Bill of Rights right.
• failed to create policies for when to defer a Residency & Employment Rights Certificate application when it was clear the individual had an established Section 9 Bill of Rights right.

In the circumstances, Simmons said that the Immigration Appeals Tribunal should have considered her human rights and the Court of Appeal’s decision that the points system is incompatible with the Bill of Rights.

She added that the immigration authorities should have stayed, i.e., delayed her application to await the Privy Council’s decision and potential amendments to local law.

Lastly, Simmonds argued that the Immigration Appeals Tribunal’s decisions are a breach of natural justice due to their brevity.

She contended that the brevity of the decision falls foul of the guidance in the case of National Roads Authority v Bodden et Ors [2014] 2 CPLR 47 as there is a substantial doubt as to whether they have understood the issues.

She now awaits the Court’s decision to grant the order and declaration she requested so that her matter can be reheard before the Immigration Appeals Tribunal.

Simmonds’ case is interesting because her matter is being heard while Cayman’s Labour Minister is announcing changes to the country’s immigration rules. It is unclear whether these new rules will apply to cases like Simmonds, who has been in Cayman since 2013.

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