By Alric Lindsay
In a judgment of the UK Privy Council given today, April 28, 2025, the Privy Council ruled 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.” This judgment may impact claims that have been pending in the Cayman courts regarding individuals who argued that the points system is incompatible with their right to private and family life. Some of these Cayman court claims also suggested that even if applicants failed to obtain 110 points under the points system, a new procedure outside the points system should be available to them to continue residing in the Cayman Islands. The UK Privy Council indicated that no new legislation outside the points system was required due to the Cabinet’s existing powers.
Background
The background to the UK Privy Council judgment is that a national of the Philippines and a national of India came to the Cayman Islands on a work permit in February 2008 and November 2009, respectively.
Concerning the national of the Philippines, he applied for permanent residence in January 2017.
According to the UK Privy Council judgment, “The Chief Immigration Officer refused his application because he had scored only 61 points.”
Following an appeal to the tribunal, the man was reassessed and awarded 74 points. However, the minimum points required were 100. As a result, it is understood that his appeal was dismissed.
A request was made on behalf of the man to reconsider the decision of immigration authorities on the basis that “the Board had failed to consider his right to private life.”
Regarding the national of India, it is understood that he came to the Cayman Islands on a work permit in November 2009.
The judgment explained:
In November 2018 he applied for permanent residence.
The Caymanian Status and Permanent Residency Board rejected his application, finding that he had scored 99.5 points and therefore fell short of the minimum score required of 110 points.
He appealed the decision, but the appeal was dismissed.
Decision of the Grand Court
Regarding appeals to the Grand Court, the UK Privy Council judgment said:
The two appeals were heard together by the Grand Court (Walters J) and were dismissed. In rejecting the argument that the claimants’ rights to private life had not been considered, the judge held that “due and reasonable consideration” was given to those rights through the points system.
In reaching that conclusion, the judge emphasised that the criteria by which points are awarded are detailed, publicly available and predictable, enabling individuals admitted on work permits to assess for themselves whether or not they are likely to qualify for permanent residence and to manage their private and family lives accordingly.
Decision of the Court of Appeal
Following the dismissal of the appeals to the Grand Court, the parties appealed to the Court of Appeal.
The UK Privy Council Judgment explained:
As summarised in the court’s judgment (para 38), the claimants’ main argument in the Court of Appeal was that either the points system itself is incompatible with their rights protected by section 9 of the Bill of Rights because it does not permit consideration of those rights or that, even if that system does incorporate consideration of those rights, it is an incomplete code because it does not permit any consideration of those rights outside the points system.
The Court of Appeal dismissed the appeals but declared that the points system is incompatible with the Bill of Rights enshrined in the Constitution.
Decision of the UK Privy Council
According to the UK Privy Council judgment, the Attorney General of the Cayman Islands appealed against the declaration of incompatibility made by the Court of Appeal.
Regarding this, the UK Privy Council said:
The starting point must be that a finding of incompatibility, like any other finding that a court may make, should relate to the facts of the case which the court is called on to decide. This flows from the very nature of the judicial function. Courts are not accorded authority to pontificate on any matter they please. Their essential function is to decide disputes between the parties before them and, where the court finds that the defendant has infringed (or threatens to infringe) a right or legally protected interest of the claimant, to provide a remedy to the claimant.
The Privy Council added:
…the basis for the finding of incompatibility which the Court of Appeal nevertheless made was entirely abstract and theoretical. It did not relate to any feature of the claimants’ cases or which the claimants had identified. Nor did the Court of Appeal itself identify even a single example of a possible future case or class of case in which it would or might be necessary, so as to avoid a breach of section 9 of the Bill of Rights, to grant permanent residence to a person whose application did not meet the requirement in section 37(3) of the Immigration Act. Although the Court of Appeal postulated “cases where, exceptionally, the points system does not give sufficient weight to the particular individual circumstances of an applicant” (see para 83), they did not suggest any particular (or even general) circumstances in which this would be so. That is not a sound or satisfactory basis for making a finding of incompatibility.
The Privy Council continued:
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.
Regarding whether any new procedure should be afforded to applicants who fail to obtain the 100 points required for the grant of permanent residence, the UK Privy Council judgment said:
…Part 7 of the Immigration Act… which deals with “Gainful occupation of non-Caymanians”, begins by identifying, in section 53, persons who are exempted from its provisions. Section 53 states:
“Persons exempted
53. (1) This Part does not apply to—
…
(b) any person who may, from time to time, be declared by the Cabinet to be exempt for any purpose either unconditionally or subject to such conditions as may be prescribed …”
The immediate effect of a declaration by the Cabinet under this provision is to exempt the person concerned from having to satisfy the requirements of Part 7 as a condition of carrying on gainful occupation in the Cayman Islands. But such an exemption also allows the person to remain and reside in the Cayman Islands. This follows from section 93(b)(iii) of the Border Control Act, quoted at para 3 above, which includes among the categories of lawful immigrants “a person who is exempted under the relevant provisions of the [Immigration Act] or a dependant of such a person”.
The Privy Council explained further:
If a request is made to the Cabinet to grant an exemption under section 53(1)(b), the Cabinet has a duty to grant it if refusing to do so would result in a breach of the person’s right to respect for private or family life. This follows from the duty imposed on a public official by section 24 of the Bill of Rights (quoted at para 24 above) not to make a decision or to act in a way that is incompatible with the Bill of Rights unless the public official is required or authorised to do so by primary legislation. (The term “public official”, as defined in section 28, includes a public or governmental body and therefore includes the Cabinet.) No primary legislation has been identified which would require or authorise the Cabinet to exercise its power under section 53(1)(b) of the Immigration Act in a way that is incompatible with the Bill of Rights.
The Privy Council concluded:
In short, there is a statutory provision which allows for consideration outside the points system of the right to respect for private or family life protected by section 9 of the Bill of Rights and 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 the person’s removal or deportation would violate section 9. 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.
Note to readers:
A full copy of the UK Privy Council Judgment is included below.
