According to a Notice of Originating Motion filed with the Grand Court on April 10, 2024, Amoy Subbrina Yankana is challenging the decisions of Cayman immigration authorities to reject her application to amend her Permanent Residence and Employment Rights Certificate (RERC) to add her child. Yankana argues that the authorities’ decisions were unreasonable, amounted to a breach of the Bill of Rights under the Cayman constitution, and was an error of law. She, therefore, wants the Court to order that the decisions of the immigration authorities be set aside and her matter be reheard.
Background
Based on the Motion, Yankana, a Jamaican national resident in the Cayman Islands since 2009, “was granted a RERC pursuant to s. 30 of the Immigration Act (2015 Revision) on 21 December 2020.”
On September 22, 2021, Yankana submitted an application to vary her RERC to add her child (the “Variation Application”).
The Caymanian Status & Permanent Residency Board reportedly deferred the Variation Application on March 17, 2022, seeking additional information on banking records (the non-disclosure of Yankana’s child was reportedly not raised as an issue by the Caymanian Status & Permanent Residency Board at this time).
Yankana’s attorneys responded to the Caymanian Status & Permanent Residency Board on April 5, 2022, enclosing a copy of the requested financial information.
The Caymanian Status & Permanent Residency Board reportedly refused the Variation Application on September 15, 2022, indicating that it had been refused because Yankana failed and/or neglected to disclose that she had a dependant when she was first granted an RERC.
Regarding this, section 37(8) of the Immigration (Transition) Act states as follows:
When applying under this section for the right to reside permanently in the Islands the applicant shall provide full particulars of that person’s spouse or civil partner and all dependants whether or not it is intended that they would accompany the applicant if the applicant’s application is successful; and the failure to provide such particulars in the application is an offence.
Yankana reportedly appealed this decision.
The Immigration Appeals Tribunal refused Yankana’s appeal on October 19, 2023.
Error in law
In response to the refusals, Yankana’s Motion filed in the Court argues that these decisions are erroneous in law because “Section 37(8) clearly provides that, “the failure to disclose such particulars in the application is an offence”, but this Section doesn’t provide for an automatic refusal of a future application to add a dependant.”
The Motion added, “If it was the intention of the Act for such failure to act as an automatic refusal of any future application to add such dependant, then the Act would have made this clear.”
Unreasonableness of the Decision
The Motion also argued that the Caymanian Status & Permanent Residency Board did not indicate in the deferral letter that the issue of the nondisclosure of a dependant was an issue.
Therefore, it was reasonable for Yankana to assume that the Variation Application would have been approved or the non-disclosure of the Child was not a factor under consideration.
The Motion indicates that it is unreasonable for Yankana to be punished now for an issue that the Caymanian Status & Permanent Residency Board did not raise a concern about when considering the Variation Application.
Breach of Bill of Rights
Turning to the Bill of Rights contained in the Cayman Islands Constitution, the Motion argues that the decisions of the immigration authorities infringe upon Yankana’s rights and freedoms enshrined under the Constitution.
Regarding this, the Motion states that the refusal of Yankana’s Variation Application ensured that she could no longer continue to have her child here with her in the Cayman Islands and that her right to a private and family life was now at risk.
The Motion argues that it is incumbent upon the Caymanian Status & Permanent Residency and the Immigration Appeals Tribunal to consider not only whether Yankana satisfies the relevant legislation, but also her rights and freedoms enshrined under the Constitution.
European Convention on Human Rights (“ECHR”)
Lastly, the Motion argued that the decisions of the immigration authorities were not proportionate to any of the legitimate aims set out in Article 8(2) of the ECHR and thus amounts to an unlawful breach of Article 8(1) of the ECHR.
For the reasons set out above, Yankana now seeks to have the decisions set aside and her Variation Application reheard.
