ALASTAIR DAVID

Today on 30 March 2023, The Court of Appeal declared that Section 37 (3) Immigration (Transition) Act (2022 Revision) is incompatible with the constitution namely Section 9 of the Bill of Rights, which provides rights to family life and/or private life to residents in the Cayman Islands.

The relevant subsection of the Act, which the Court of Appeal has held is incompatible with Section 9 of the Bill of Rights is: 

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

In the case of D’Souza & Buray, the appellants failed to obtain the required 110 points under the Points System to be granted permanent residency (PR). They appealed on the basis that this infringed their rights to a private life based on their individual circumstances. 

This declaration of incompatibility will present immediate difficulty in the processing of PR applications, at least those where applicants are assessed to have less than 110 points. Up until now those individuals who did not achieve 110 points under the Points System and had no other way of remaining in the Cayman Islands were required to leave the Islands for at least 1 year. 

The Cayman Islands Government will now need to act to amend the aforementioned Section 37 in order to make it compatible with the Bill of Rights and at the same time provide a revised legal framework for the consideration of pending and future PR applications so that an applicant’s Constitutional Rights can be considered.  

It is difficult to know how the Government will react, but it is earnestly hoped that applicants who have achieved 110 points will have their applications progressed to a grant in any event. This is a particular concern when applications in some cases have been pending for more than a year. At the current time, applications for PR pursuant to the Points System are taking up 15 months to be concluded and it appears that the Caymanian Status and Permanent Residency Board are still not considering them.  

Currently, it is understood that a Committee chaired by Mr. Steve McField, a well-known and experienced attorney, is looking at the Points System and no doubt this decision will be at the forefront of their minds when they make recommendations to Cabinet. This however is not the first similar committee in recent times and none of the previous committees/reports have led to the aforementioned sections or similar ones being amended so as to make them compatible with the Bill of Rights. 

Alastair David appeared on behalf of the appellants and is a Senior Associate from HSM Chambers. Commenting on the Judgment, he shares “While it is gratifying to see that the Court of Appeal agree with our submissions that the current law is incompatible with the Bill of Rights, this has been something which HSM Chambers has been raising concerns with for over six years.”

In regards to the overall effect of the Judgment, Mr. David said “This Judgment should not be viewed as meaning that all expatriates will be able to obtain Permanent Residence in the Cayman Islands. Subject to any legislation change, I envisage it will mean that there will be an increase in numbers of expatriates who can stay past their notional roll over date on the basis of their strong family life or private life connections which they have established in the Cayman Islands.”