March 2, 2021

Cayman Islands Chief Justice rules in favour of government who say Immigration regulation changes coming …

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GRAND CAYMAN, Cayman Islands – Following an extensive period of consultation, Cabinet will shortly consider amendments to the that, once approved, will allow the various Immigration boards to continue processing applications for permanent residency and for the Immigration Appeals Tribunal to hear PR appeals.

“As I have said before, there is no easy fix for this. The root of the issue goes back to systems and processes that have been in place from the introduction of the points system in 2004,” said Premier Hon. Alden McLaughlin. “This has been a vexing issue, not just for those impacted, but for me and the Government. However, we continue to be committed to finding a solution that is fair to all concerned and get the process moving again.”

A more detailed announcement will be made shortly regarding this change.

Separately, but on a related matter, the Office of the Premier welcomes the clarity provided by the Hon. ’s ruling of 26 January, 2017, on the important issue of legal professional privilege and its application to Freedom of Information requests for legal advice provided to Government.

The ruling by the Chief Justice is the result of the referral to the Grand Court by the acting of the refusal by the Office of the Premier to comply with the Information Commissioner’s Order to provide him with a copy of the legal advice given to the Government by Ritch and Conolly on the issue of permanent residency.

In refusing the Commissioner’s reference, the Chief Justice decided that:

• Legal professional privilege is an absolute and fundamental right, recognised by the FOI Law itself;

• In the absence of clear and unambiguous words, legal professional privilege can be regarded as subject to being infringed only by the necessary implication of other provisions of the FOI Law, here in particular, section 45;

• The important objective of the FOI Law of ensuring public access to government information does not itself give rise to the necessary implication that the objective takes precedence over the equally important public interest in the preservation of legal professional privilege;

• Neither expressly, nor by necessary implication, does the FOI Law vest the Information Commissioner with the power to infringe or abrogate legal professional privilege. It is also doubtful that he can call for the legal advice given to the Government without purporting to nullify the Premier’s certification of exemption issued pursuant to section 25 of the FOI Law;

• For those reasons, the Order made by the Information Commissioner is of doubtful validity and efficacy;

• In seeking to exercise its powers of contempt for the enforcement of the Order, the Court, both as a matter of the proper exercise of its oversight jurisdiction and as a matter of its proper exercise of discretion must first be satisfied that the Order, like an Order of the Court itself, is valid and enforceable and that it would be appropriate to do so;

• For all the foregoing reasons, in the present circumstances it would not be appropriate to enforce the Order. The Commissioner’s reference was therefore refused.

END

IMAGE: Cayman Islands Government

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