The following are two letters sent to Cayman Islands’ officers regarding concerns with the large number of Cuban migrants currently housed here in detention centres. The concerns are serious and concern sexual assault.

LETTER 1

Mr. Bruce Smith
Acting Chief Immigration Officer
PO Box 1098
George Town KY1-1102
CAYMAN ISLANDS

VIA EMAIL: [email protected]

19 May 2016

Dear Mr. Smith,

As you are aware, the influx of Cuban migrants to the Cayman Islands over the last year has tested policies and procedures for a range of our statutory entities. The Department of Immigration (“the Department”) and its affiliated bodies have obviously been at the forefront of the challenges raised by this situation. During this period the Commission has also noticed a spike in complaints filed against the Department, together with several against the Immigration Appeals Tribunal (“the Tribunal”). These complaints have generally cited similar or repeated complaints about the way in which migrants are being processed.

The complaints frequently allege a failure to provide appropriate legal counsel, including representation at hearings and translation services provided by an Immigration Officer. They also claim that decisions are being written and delivered in poor Spanish (from the Department), and only in English (from the Tribunal). These allegations engage a number of human rights concerns under the Cayman Islands’ Constitution including, but not limited to, the prevention of torture and inhuman treatment and the rights to personal liberty, fair trial, non-discrimination, and lawful administrative action.

Given the gravity of the constitutional breaches alleged, the potential impact on the lives of the migrants affected and to ensure compliance with the Constitution, the Commission recommends that the Department (and its affiliated bodies, including the Tribunal) institute and implement written policy and procedure documents governing the way in which Cuban migrants are processed as a matter of urgency. The guidelines should cover the entire process, from the first encounter with enforcement agencies to the final outcome, whether that is the grant of asylum or repatriation. At the very least policies should include provisions for advising migrants of their rights, facilitating access to pro bono

legal advice upon request and provide timetables for the asylum application procedure, appealing asylum decisions, seeking judicial review of Tribunal decisions and repatriation procedures.

Given the importance of the issues raised the Commission recommends that the Legal Department is engaged to review the written policies to ensure compliance with the law. Equally, if it would assist, the Commission is willing to review and comment on these policies once in a final draft form.

As indicated, this is an ongoing and serious situation; the longer that there is a lack of certainty and proper procedures in place, the greater the scope for serious infringements of individuals’ rights to occur. As such the Commission recommends that these issues be addressed and documents drafted as a matter of absolute priority.

Yours sincerely,

James Austin-Smith
Chairman, Human Rights Commission

Cc: Chief Officer, Ministry of Home Affairs
Chairman, Immigration Appeals Tribunal

LETTER 2

Mr. Eric Bush
Chief Officer, Ministry of Home Affairs
PO Box 111
Grand Cayman, KY1-9000
CAYMAN ISLANDS

Via email: [email protected]

8 June 2016

Dear Mr. Bush,

As you are aware, the Commission continues to be concerned about the way in which Cuban migrants are being processed and detained.

The Commission appreciates that the processing and detaining of illegal migrants is often challenging, as evidenced by the recent incident in which police were called to the Bodden Town Civic Centre site. Nevertheless, the safety and security of the migrants is of primary concern during their processing and detention and the Ministry of Home Affairs (“the Ministry”) and its supporting Departments are ultimately responsible for that.

Over the past six months the Commission has met with and spoken to detainees on numerous occasions. We document below some of the allegations made and concerns that have been identified during these interactions. (Most of these concerns were raised with representatives of the Ministry and relevant supporting Departments at the time that they occurred.) They include:

1. a failure to properly assess each migrant on arrival (and on a continuing basis) to determine the most appropriate detention conditions for them and to establish which detainees needed to be secured at higher-risk or lower-risk facilities;
2. the difference in detention locations providing for different rules being applied to migrants. This
is further influenced by the fact that HMPS oversees the Immigration Detention Centre whilst private security guards oversee civic centres.
3. inconsistent procedures for handling migrants with special medical needs (pregnancy, HIV/AIDS, etc.);

4. allegations that sexual activity (some of which may constitute sexual assault) has been occurring amongst detainees;
5. allegations that detainees are susceptible to being exploited of by visitors to the properties
where they are detained;
6. an allegation of a sexual relationship between a private security guard at the East End Civic
Centre (previously being used to house migrants) and a detainee;
7. an allegation that a private security guard at the East End Civic Centre regularly smoked ganja with detainees and that those detainees were given special privileges (i.e. additional phone use); and
8. allegations that private security guards have allowed detainees to be picked up from the East
End Civic Centre and taken off the property during the night.

Additionally, there are numerous concerns about the physical conditions of the buildings in which the detainees are housed. The Commission has visited these premises and notes the following issues:

9. fire exits have been blocked;
10. there is overcrowding;
11. males and females are housed together and required to use the same bathroom and shower facilities; and
12. mould is present in the showers.

The Commission does not have the resources to conduct investigations into the allegations set out at 4 –
8 above to determine their veracity and we make no findings in respect of them. However, the fact that the allegations have been made is a cause for concern and it is incumbent on the Ministry to investigate them properly.

In the circumstances, pursuant to s.116(7)(c) of the Constitution, the Commission makes the following recommendations:

a. That proper investigations are conducted into the allegations documented at 4 – 8 above as a matter of priority (if they have not been already) and that, in cases of alleged criminal offending, the police are involved.
b. That comprehensive, written, policies and procedures be drafted and implemented as a matter of priority to address all the issues at 1 – 8 above and prevent their recurrence.
c. That an assessment of the appropriateness of the use of private security guards at the detention
centres is undertaken.
d. That fire exits currently blocked are immediately cleared and that the Cayman Islands Fire Service is invited to inspect the detention centres to confirm that they are safe as a matter of urgency, and in any event within 7 days. The results of the Fire Service’s inspection should be made public immediately upon completion of their inspections.

e. That the detention centres be properly cleaned and subsequently inspected by the Department of Environmental Health as a matter of priority. The results of the Department of Environmental Health’s inspection should be made public immediately upon their completion.
f. That a proper assessment is made of the appropriateness of housing non-family members of the opposite sex in the same premises.
g. That further steps be taken urgently to address any overcrowding.

These recommendations are in addition to those articulated in our letter of 19 May 2016 to the Acting Chief Immigration Officer (“the ACIO”) (recommending written policies and procedures be created for the management of detainees, to address procedural irregularities, and to provide facilities to ensure detainees’ rights to fair trial are observed). The Commission notes and is grateful for the ACIO’s response to the 19 May recommendations in his email of 30 May 2016 and for his confirmation of an internal review of existing procedures to address them. We look forward to receiving the results of that review upon its completion.

Please note that, in accordance with the Commission’s obligations under the Constitution, this letter will be published on our website in seven business days.

Yours sincerely,

James Austin-Smith
Chairman, Human Rights Commission

cc: Director of Prisons
Chief Fire Officer
Acting Chief Immigration Officer
Head of Department, Department of Environmental Health