Cayman Islands Cabinet may have acted unlawfully

Friday, January 16, 2004

GEORGE TOWN, Cayman Islands: The Cayman Islands Cabinet may have acted unlawfully last year in granting Caymanian Status (belongership) to at least some of 2,850 people, according to a legal opinion by one of Britain's leading barristers, David Pannick, QC.

Mr Pannick, who is the author of several legal texts and who writes a fortnightly legal column in The Times of London newspaper, wrote the opinion on the request of the 80-member Caymanian Bar Association (CBA). On 22 January, the CBA will ask its membership to decide whether or not to mount a legal challenge to the Cabinet's grants of Status in 2003.

According to Mr Pannick, there is a strong case to have at least some of the Status grants reversed. "In my opinion, there are strongly arguable grounds (on the limited information available) for contending that the Cabinet has acted unlawfully," he wrote. "There appear to be good prospects of obtaining a declaration that the Cabinet has acted unlawfully and possibly also obtaining a quashing order in relation to all or some of the grants of Status."

Time will be one key element to any successful challenge to the Status grants, Mr Pannick wrote. "I am concerned that our prospects of obtaining a quashing order may well be adversely affected by the passage of time. It is vital that any proceeding be commenced as soon as possible."

In reviewing the merits of the potential case, Mr Pannick found many areas of concern, but in particular he considered the provision in the Immigration Law that allows the Governor in Cabinet may make a grant of Caymanian Status if, in the opinion of the Governor, there is "special reason for so doing."

Mr Pannick noted that in the past the Cabinet had limited its use of this power by granting Status only to a small number of former judges, attorneys general, governors and athletes, who in many instances were not eligible to apply to the Immigration Board for Status because they had not resided in the Cayman Islands for 10 years.

Based on the information provided to Mr Pannick, last September and October the Cabinet had directly made grants of Status to some 2,400 people (the opinion was written prior to the final dispensation of some 450 in late December) and that apparently at one particular Cabinet meeting, 1,400 grants of Status were made. 

In this regard, Mr Pannick noted that many of these people had been residents for as little as 15 months and some were not resident at all; that the recipients included Crown Counsel in the Government legal department advising the Cabinet on Status; that there was no consultation with the Immigration Department as to which long-term residents had applied for Status; and that according to press reports, there was a case in which two people in breach of immigration law who were about to be charged with overstaying had been granted Status, a fact that was disclosed when they were brought before the courts.

One of Mr Pannick's main contentions was that Cabinet could not have assessed all relevant factors relating to the 2,400. "Indeed, if 1,400 grants were made in a single day, the Cabinet cannot have assessed whether there were "special reasons" for the grant of Status to each of the recipients," he said.

Mr Pannick also noted that even though the Cabinet's discretion to grant Status under the Immigration Law was broad, it could not lawfully be exercised for reasons irrelevant to the legislative objectives of the Law. He noted that political factors might well have played a role in the granting of Status. "The suggestion to the Opposition (People's Progressive Movement) that they could have some of their nominees rewarded strongly suggests that irrelevant political factors have been taken into account," he maintained.

Pointing out that the Law allowing the Cabinet to grant Status (Section 20 (d) of the Immigration Law) was intended to be an "exceptional power," Mr Pannick said that the "special reason" for grant such Status could not simply be that the individual failed to qualify under the guidelines required in order for the Immigration Department to grant Status in the usual fashion. "He must have some special personal characteristic which is believed to justify the award of Status," he said, "Section 20 (d) cannot lawfully be used as a general means of supplementing section 22 (Status grants by the Immigration Board) so as to accord Status to groups or categories of persons who fail to qualify under section 22."

With regard to who might have a recognised standing to bring a legal action to the court against the Status grants, Mr Pannick believes that the CBA, as an established organisation with one of its functions being to protect the public interest, could do so. He also feels that the best prospect of resisting objections to standing would be if there would be co-claimants in the proceeding, for example a group of concerned Caymanians and another group of long-term residents who are applying for Status through the Immigration Board.

According to Cayman Net News, local attorney Micki Jafa Bodden has been retained by the CBA to act as junior counsel to Mr Pannick but, when contacted, said she could not comment at this time. 

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