May 26, 2022

Discrimination by Caymanians against Caymanians

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By Leonardo Raznovich

I am currently in Australia for the purpose of attending the International Bar Association annual conference, but I feel compelled to issue this press release now. I will be discussing this matter at the Conference, and you should feel free to disclose that fact in any press coverage.

Press Release:

The most abominable of discrimination: discrimination by Caymanians against Caymanians; the clearest demonstration of all that LGBT rights are not an ex-pat issue, but a matter of homophobia and discrimination, pure and simple.

I never thought that I would be writing these words. I have learned with great concern that the Immigration Authority has rejected the application of a married same-sex couple, a Caymanian national married to a non-Caymanian, to grant the right to reside in the Cayman Islands to the non-Caymanian spouse on grounds that our immigration case, decided by the Immigration Appeals Tribunal on July 2016, does not extend to benefit Cayman nationals.

Such a rejection is not just a matter of discrimination, but it is an illegal action under the current laws of the Cayman Islands. The Cayman Islands Constitution, in Section 16, states that the government shall not treat any person in a discriminatory manner. Furthermore, Section 24 makes it unlawful for public officials to act contrary to the Bill of Rights, unless required to do so by primary legislation (the Immigration Authority is a public official). In this new case, the matter is even more disturbing, and illegal, because the law is no longer open to interpretation by the Immigration Authority. The Immigration Appeals Tribunal, in July last year, clarified how the law as it currently stands in the Cayman Islands must be interpreted and stated that the law compels recognition of the validity of overseas same-sex marriages for immigration purposes, without making any distinction between nationals and ex-pats. In the words of the tribunal in our matter:

“Recognizing opposite-sex foreign marriages and failing to recognise same-sex marriages would be affording different and unjustifiable treatment to different persons on the ground of sexual orientation … discrimination on the basis of sexual orientation would be a breach of section 16 of the Cayman Islands Constitution and of the Bill of Rights … the Board [IA] and [the Appeals] Tribunal are obliged [to grant this application] where there is scope to do so as a matter of Cayman Islands law.”

The Immigration Authority could have challenged this interpretation before the Grand Court, but, following advice of the Attorney General, decided not to do so, because there were no legal grounds for an appeal. The Immigration Authority has since applied the precedent set in our case in a number of applications made by ex-pats in foreign same-sex marriages; all of those cases involved applications made by an ex-pat holding a work permit. It is abhorrent that the Immigration Authority has decided to discriminate against its own people by denying Caymanians a right that they are, in law, entitled to exercise too – how on earth can a Caymanian ever justify that a foreigner should have greater rights than a fellow Caymanian?. This is a clear confirmation that LGBT matters is not an ex-pat issue, but a matter of homophobia and discrimination.

It is important to highlight that since our matter was decided, the European Court of Human Rights, in a unanimous decision in Taddeucci and McCall v. Italy (ECtHR, 30 June 2016), held that it is a breach of the Convention to deny a residence permit for immigration purposes to same-sex couples. In this case, the Court had to deal with a similar situation to the one this Cayman couple is going through: a same-sex couple, where one party of the couple is a national of the country (i.e. Italian) and the other was from New Zealand. This couple was denied a residence permit on grounds that they did not constitute a family under the traditional Italian understanding of that concept as they were not married at the time. Interestingly, similar to the current situation in the Cayman Islands, neither marriage nor civil unions were allowed in Italy then for same-sex couples. The court concluded:

As Italy decided to afford foreign nationals the ability to request residence permits if they were “family members” of citizens, the application of that system of domestic law could not be discriminatory (see E.B. v. France (ECtHR, 22 January 2008)). It follows that the impossibility in Italy at the material time for same-sex couples to acquire marital status or other legal recognition of their relationship could not, under any reasonable interpretation of Article 8 taken in conjunction with Article 14 of the Convention, have made their relationships any less worthy of being treated as constituting a family unit within the particular context of immigration proceedings. The judgment does nothing more than require Italy to take due account of the existence of a serious and stable same-sex relation­ship in this specific context. The Court thus firmly rejects the argument that States can legitimately invoke the concept of the “traditional family” as a basis for denying a request for a residence permit made by a foreign national who is in a relationship with a citizen of the same sex. (By judge Spano)

This current rejection by the Cayman Islands Immigration Authority is therefore not only illegal under Cayman Islands law after our matter was decided by the Immigration Appeal Tribunal, but also a flagrant breach of the international legal obligations of the jurisdiction under the Convention, for which the UK is ultimately responsible, after the precedent of Taddeucci.

I do appreciate that my words above are strong. I mean no disrespect to anyone, but I feel strongly that the lives of all Caymanians should matter. Their lives certainly matter to me, a non-Caymanian and I feel compelled to help this Caymanian couple, and any others in their circumstances, as they lack support and respect from their government and from their own people, many of whom prefer to segregate them and drive them away from their homeland and their families. The government should stop seeking to contort the law and read it in a manner that is incorrect but perceived to be consistent with the norms of the predominant Christian faith and way of thinking. Faith is incredibly important to many and must be respected too, but the Cayman Islands is not a theocracy, hence faith must not trump the actual laws of these Islands in existence today, irrespective of the majority position. Most importantly of all, I would like to remind everyone, and in particular those working for the Immigration Authority who decided to reject this application, that recognising the rights of this Caymanian (and other LGBT Caymanians) does not dictate the taking away of the rights of any non-LGBT Caymanian, nor does it dictate any change in faith. All people can, and must, be treated equally under the law and must be able to enjoy protection from discrimination on any of the grounds prohibited by the Constitution: sexual orientation, like it or not, is legally one of those grounds.

Dr Leonardo J Raznovich, Barrister
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Visiting Senior Research Fellow
Intersectional Centre for Inclusion and Social Justice
Canterbury Christ Church University
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Education Officer of the LGBTI Law Committee of the International Bar Association

END

IMAGE: Dr. Leonardo Raznovich

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