Immigration appeals in the Cayman Islands

Navigating through the maze of law, regulation and
bureaucracy can be daunting enough when dealing with immigration matters.

When it comes to immigration appeals, the potential pitfalls
for the uninitiated or unwary can be deep,and the consequences dire. You only
have a limited time in which to appeal, so although the prospect of having to
take further action can be upsetting, the worst thing you can do is wait. 

The Cayman Islands Immigration Law (2009 Revision) provides
for appeals against certain decisions of immigration officers and Boards. The
Boards include the Work Permit Board, Business Staffing Plan Board, and
Caymanian Status & Permanent Residency Board. Not all decisions can
be appealed. 

Appeals against decisions of Immigration officers

If you are dissatisfied with a decision of an immigration
officer, you only have seven days to appeal to the relevant Board. The definition
of “immigration officer” includes the chief immigration officer, but appeals against decisions of the CIO can also be, in other
circumstances, appealed to the Immigration Appeals Tribunal.

Appeals from decisions of immigration officers can only be
made in limited circumstances. These include where the officer has refused
permission to enter or remain in the Cayman Islands or where an officer has
refused an application or amendment to a student visa, or refused or revoked a
temporary work permit. Applicants may also appeal following a denial of an
application for a Residency Certificate for Persons of Independent Means.

Depending on the type of appeal you are making, you may or may not be allowed
to stay in the Cayman Islands while it is pending.  It is important to remember that decisions of
the relevant boards on appeal are final and binding; there is no right of
further appeal to the IAT. In appropriate circumstances, you may be able to
apply for the judicial review of a decision of a Board in the Grand Court, but
that could be a very lengthy and expensive process. Aside from the Grand Court
route, you have one shot and you need to make it count. 

Appeals against decisionsof the chief immigration officer and boards

Decisions of the chief immigration officer in relation to
work permits and any decision of a board (not itself an appeal decision), can
be appealed to the IAT. 

Such decisions must be appealed within 28 calendar days of
the date of the communication of the decision. Any attempts to file an appeal
before receiving official notification of the decision will be rejected, as the
authorities require a copy of the decision to be attached with the appeal.

It is possible to seek leave to file an appeal out of time,
namely after the 28 days have passed, but this leave will only be granted if
there is a genuinely good reason for doing so. An example of a good reason
might be if you were off Island attending to a family emergency when the
notification arrived and upon your return your 28 days had already expired. In
such a case, the IAT would require an affidavit or affirmation from you
confirming the details of why leave to file out of time is requested. The IAT
has discretion to determine what a good reason might be and so appellants should
file within the required 28 days wherever possible. 

Although key employee applications are decided by boards,
denials of those applications are not subject to any appeal. It may, however,
be possible to bring judicial review proceedings in the Grand Court in
appropriate circumstances. 

Filing a notice of appeal

Regardless of whether your appeal is against an appealable
decision of an immigration officer, the chief immigration officer, or a board,
all appeals must be filed by notice in writing. Every notice of appeal must be
addressed to the secretary of the board or the IAT,
as appropriate.   

All notices of appeal must (where applicable) enclose a copy
of the original filed application. In the case of appeals to the IAT, the
prescribed non-refundable processing fee must also be paid. Extreme care should
be taken when paying the fee. Appellants with the wrong amount will be sent
away to return when they have a cheque for the correct amount, which will cause
a delay in filing the appeal. If an appellant has waited until late on the last
possible day to file an appeal, the first opportunity to return with the
correct fee may be on the 29th day after communication of the decision: in such
a case, an application to file out of time will be required. 

Notice of appeal –information required

The notice of appeal should include as much information as
possible, including the decision appealed against and whether or not the
appellant wishes to be heard personally or by a representative. This is
critical; if you want to have an actual hearing then you must say so at this
stage.  Although not clearly required by
the letter of the legislation, it is also wise to include the ground(s) of
appeal. 

The law sets out the only four available grounds of appeal.
These are that the decision is erroneous in law, unreasonable, contrary to the
principles of natural justice or at variance with the Regulations.  You must show that at least one of these
grounds exist in order to establish that the decision is subject to appeal. 

Based on the current advice of the IAT and various reported
cases, it would be highly advisable to include a list of all possible grounds
of appeal you plan to rely upon at this stage even though you will likely not
yet know the detailed reasons for the decision. Once you file the appeal, you
can expect to receive the reasons within approximately 28 days. It is only then
that you will be in a position to determine the most appropriate grounds of
appeal.  It is better to include too much
information in the Notice of Appeal than too little; to the extent that any
grounds listed become irrelevant later, it is easy to abandon those that no
longer apply. Problems may however arise if you later seek to add in grounds
that were not listed at the
earlier stage.  

A good notice of appeal need normally only be a simple one
page letter, but making even a minor mistake here can be potentially
devastating later on down the appeal track. 
Making sure you get this critical foundation step right will set you on
the right path to the best chance of success through the appeals process. The
Grand Court has previously held that merely “sending a letter informing the
tribunal of an intention (to appeal) is not a notice of appeal”, so very
special care must be taken in drafting the document.

It is recommended that those who wish to appeal a decision
of an immigration officer or board, especially a denial of an application for
permanent residence, seek guidance from a lawyer.

Developments in human rights
law in particular have increased the critical importance of carefully framing
appeals. Advice and guidance from a lawyer may save you much frustration,
heartache and expense in the long run.

immigSM

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