Human Rights violation in Cayman Islands: UK Government appears to be covering up in London

Press statement From Leo Raznovich

1) Minister for Africa, Overseas Territories and Africa, James Duddridge, misled the UK Parliament about LGBT situation in the Cayman Islands.  

2) Immigration Board and Immigration Appeal Tribunal: procedural failures and acting ‘against the principles of natural justice’

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1) Minister for Africa, Overseas Territories and Africa, James Duddridge, misled the UK Parliament about LGBT situation in the Cayman Islands.  

On Thursday 26 November 2015, the Premier of the Cayman Islands, speaking in the Legislative Assembly, stated amongst other things:

• That he was doing his best to stop or at least delay any imposition by the UK through an Order in Council to recognize same-sex unions by addressing the immigration problem urgently.
• If same-sex legal action, as issued by former law professor Dr Leonardo Raznovich, is pursed to its end in the Grand Court the Premier acknowledged “there will be a finding of incompatibility of the Immigration Law and Bill of Rights.” (ergo, the European Convention on Human Rights too).

Other members of the Legislative Assembly raised their concerns that this was the same as recognizing same-sex unions to which the Premier stated that that was exactly what government was avoiding by tackling the issue of dependents. In fact, the Premier stated “…if we are able to make suitable amendments to accommodate persons in Dr Raznovich’s category, we may avert, for the time being at least, the pressure to recognize formally same-sex unions and avoid the possibility of being forced to do so by the UK.”   There was no mention of recognition of same-sex couples, let alone equal marriage.  These comments in the Legislative Assembly were public and featured in the press on 2 December (https://caymannewsservice.com/2015/12/urgency-increases-to-address-same-sex-discrimination/).

On Thursday 3 December, in the House of Commons, according to Hansard, Mr. Duddridge, with whom the Premier had met that week in the context of the Overseas Territories Joint Ministerial Council, when asked by Crispin Blunt MP during Question Time at a session of the UK Parliament on the subject of progress regarding discrimination of LGBT persons in British Overseas Territories, surprisingly stated:

• I thank the Chair of the Foreign Affairs Committee for raising this issue. Progress has been made. He mentions the Cayman Islands, and only this week their premier reported to their parliament on their recognising equal marriage, which is a great step forward.

<https://hansard.digiminster.com/Commons/2015-12-03/debates/15120362000005/OverseasTerritoriesJointMinisterialCouncil> column 530

Mr. Duddridge, however, knew that this statement was incorrect and therefore misleading because that same day, on 3 December 2015, Mr. Duddridge wrote to Helen Grant MP, referring to the Premier’s comments on 26 November and noting simply that the Premier has instructed the Department of Immigration to seek to identify a way that same-sex partners can be granted a legal right to reside in the Islands.  There was no mention in his letter of the Cayman Islands recognising same-sex unions, let alone equal marriage. A copy of this letter is on file with us.

Why did Mr Duddridge use such misleading words in the House of Commons? It is only a matter of speculation at this stage. Perhaps to appease MPs of his own party who had raised concerns about the Cayman Islands breaching human rights by discriminating against LGBT people? Perhaps to allow the Foreign Office to use his statement in Parliament as a means to address the diplomatic complaint made by Argentina and to cover up the human right violation in one of its overseas territories? We have written to UK MPs and the Argentine government to place them on notice regarding Mr Duddridge’s misleading words.

2) Immigration Board and Immigration Appeal Tribunal: procedural failures and acting ‘against the principles of natural justice’

We have requested that Maples and Calder, the employer of my spouse and the firm that has been handling the legal process, press on with the appeal urgently, having received no decision from the Immigration Appeals Tribunal in respect of our appeal since the process was initiated back on 21 September last year.  That was over six months ago and we still have no solution notwithstanding that the Premier of the Cayman Islands, in November last year, rightly and courageously publicly acknowledged discrimination (and hence, a human rights violation) exists in our case and that when considered by the Grand Court he expects “there will be a finding of incompatibility of the Immigration Law and Bill of Rights.”

Clarification for the public opinion: our application was simply to add me to my spouse’s work permit, as a dependent. It was not a challenge to the local Marriage Law. Critically, the definition of marriage does NOT need to be changed to accommodate our application, NOR do there need to be any other changes to the law of the Cayman Islands. The law, as it applies and is currently in force today in the Cayman Islands actually REQUIRES that our application be granted. We understand that the Attorney General has advised the government of the Cayman Islands that there are no legal grounds to reject our appeal. It is the failure of the Cayman Islands to apply the laws of the Cayman Islands in our case that constitutes the discriminatory act and breaches of the Bill of Rights and the European Convention on Human Rights.

Procedural failures of the Immigration Board: The original decision of the Immigration Board was, in any event, a travesty of natural justice due to the profound procedural error made by the Board. The Board relied upon our civil partnership certificate only, stating in its decision that ‘the certificate provided by the Appellant was that of a civil partnership and not a marriage certificate.’ The civil partnership certificate, however, had only been submitted to supplement the application a day or so prior to the Board’s meeting in August, in the hope, according to our lawyers who suggested such a submission to be made, that it would provide additional scope for the Board to approve the Application.

However the application was, and always had been, based upon the Argentine marriage certificate filed on 12 May 2015 with the application, which the Board decided not to consider. Further, the error is even more serious because the Attorney General’s written advice to the Board dated 14 August 2015 (and upon which the Board’s decision was stated to be based) was in fact formulated based upon consideration of our marriage certificate only even though such advice, itself, was legally flawed.

Let’s put this in very simple terms, the Board, in consultation with the Attorney General, had over 3 months to consider an application based on a marriage certificate, but the Board’s final decision overlooked such certificate’s existence. The Board’s decision was purely based on a supplemental document that had been in its possession for ONE DAY ONLY. The Board further claimed that no marriage certificate had been presented to them, yet they followed legally flawed advice from the Attorney General that in fact referred to the marriage certificate. Ironically, our marriage certificate was included in the pack of information provided by the Board itself to the Immigration Appeals Tribunal when the Board disclosed all material that it had considered for the purposes of reaching its decision. This is a demonstration of the utterly disgraceful unfairness with which we were, and continue to be, treated, let alone the on-going discrimination issue, as acknowledged by the Premier. Our appeal only on these grounds alone should have been accepted already by the Immigration Appeal Tribunal, if any degree of natural justice were to be applied.

In conclusion, the Immigration Appeal Tribunal appears to be stalling on our appeal and failing to apply principles of natural justice, choosing instead to overlook the procedural failures of the original decision and errors of law. The Immigration Appeals Tribunal, together with the government, are permitting to persist discrimination and breaches of human rights. The result is a clear denial of natural justice, which in itself constitutes further breaches of the rule of law by the Cayman Government. I urge the members of the Immigration Appeals Tribunal to do the honourable thing and resign if they feel unable to reach a decision. If they are fit for duty, they should do their work rather than hide their head in the sand and correctly apply the laws as they are currently in force today. The Cayman Islands reputation as a financial centre has been bolstered by the jurisdiction’s respect for the rule of law. A refusal to acknowledge and correctly apply the local law and international legal obligations puts the reputation and the credibility and long-term stability of the jurisdiction at stake. The behaviour of the Immigration Appeal Tribunal is causing big harm to the jurisdiction.

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IMAGE: twitter.com Dr Leonardo J Raznovich