The lyrics made famous by Kenny Rogers’ The Gambler: “you got to know when to hold ‘em, know when to fold ‘em, know when to walk away and know when to run” may be equally appropriate to the running of immigration appeals in the Cayman Islands as to life in general.
Our first article on the appeals process, which was published in this column in October, focused on filing a Notice of Appeal; this second part will explain the further steps necessary to achieve a positive outcome and some of the roadblocks that may arise along the way. The focus is on appeals against decisions of the Caymanian Status & Permanent Residency Board to the Immigration Appeals Tribunal regarding applications for Permanent Residence, but many of the issues raised below can also apply to other types of appeals.
The appeals process
Once a Notice of Appeal is filed, the name of the game is waiting. In theory you should receive the reasons for the denial of your original application within 28 days but often it is longer (in some cases, much longer).
Upon receipt of the reasons, an appellant has 28 days to file his Grounds of Appeal with the IAT. The Grounds of Appeal is a particularly important document as it is here that an appellant must articulate detailed reasons why the original decision was unreasonable, contrary to the principles of natural justice, at variance with the regulations and/or erroneous in law. This is your one chance to convince the IAT that your appeal is worthy of even getting the opportunity to have a rehearing. If grounds for the appeal are not found to exist, then the appeal will be over.
It is advisable to engage the services of a lawyer when it comes to filing the Grounds of Appeal, even if you have dealt with your own appeal up to this point. The difference made in having this critical document prepared by an experienced immigration lawyer (preferably with a familiarity in administrative law and human rights provisions) is often striking and can have a significant impact on the outcome of your quest to continue to make the Cayman Islands your home.
Within 28 days of receiving your detailed Grounds of Appeal, the chief immigration officer, or the board against which you are appealing, may provide a written defence. In the writer’s experience this rarely occurs, but anyone engaged in the appeals process should be prepared for this just in case. If it does happen, the law does not specifically provide the opportunity to respond directly; however, appellants should consult with their attorneys to discuss whether (and when) it might nonetheless be appropriate to do so.
Where an appellant has asked (at the Notice of Appeal stage) to be heard personally or by a representative, the appellate tribunal is required to fix a time and date for such hearing and notify the appellant and the CIO / Board. There is no pre-defined timeframe for this and accordingly, given the large backlog of appeals especially with the IAT, it can be a long time after filing Grounds of Appeal before you receive word of a hearing date. This is the time to “hold ‘em” since in many instances, persons with pending appeals will be able to continue to live and work in the Islands until the final outcome. Of course, where human rights issues are at play, such rights will only become stronger with the passage of time, so although the wait can be frustrating and appellants can feel like they are living in “limbo”, the best play is often to wait it out.
The IAT’s procedure
The IAT has the power to regulate its own procedure. The problem is that it has no published guidelines or rulebook (unlike, for example, the Grand Court) and so it can be difficult for appellants to know the etiquette for the game they are playing. For this reason it is again important to engage the services of an experienced immigration lawyer, or at least to play a few rounds of cards with one, since navigating the potential pitfalls of the hearing process requires a steady hand.
The IAT staff is very helpful at providing what guidance it can but the real trick is in knowing which procedural battles to fight and which to fold on. For example, there are no rules as to whether witnesses are allowed, what order they should be questioned in, who may be in the room at the time, whether cross-examination is possible or indeed how much time an appellant should be given for a particular hearing. It is also unclear at the outset what additional papers should be filed in addition to the Grounds of Appeal. It is the writer’s preference to provide detailed written submissions to the tribunal at the time of the hearing so that any issues not covered orally (given time constraints) will nonetheless appear on the record.
Indeed, there are no hard and fast rules as to how many hearings there will be. Typically there seems to be one hearing to establish whether grounds of appeal exist and then (if they do) a further hearing “de novo”. In other words, your entire application is revisited afresh and the tribunal acts as the original decision maker in the determination. The tribunal may also consider any changes in circumstances that have arisen in relation to the parties. Following that, sometimes a further hearing will be set for the tribunal to question any witnesses who oppose your application, and possibly a final meeting for you to answer any unresolved questions.
While the hearings are proceeding, the tribunal can also request further written submissions, affidavits or other material from the appellant to be prepared within short timeframes.
The lack of a fixed procedure may help appellants who are unfamiliar with the process in some regards; however, it also requires very careful navigation and an ability to accurately determine which issues to hold firm on and those where you can safely fold without risking your case. It is advisable to choose a legal advisor with appropriate advocacy skills who is also adept at hearing and document management.
Dealing with complaints
In a number of cases, the reason for the application being denied in the first place is that there are complaints on the appellant’s file. Some decision makers are getting much better at advising applicants when this is the case; however, sometimes one only finds out that a complaint exists after the application is denied and under appeal. Then, typically a Freedom of Information Act request will be made for the appellant’s file which may reveal one or more complaints.
This finding can be upsetting, especially if the complaints come from persons at the appellant’s current work place, and must be managed carefully. The existence of complaints can complicate the appeals process considerably but with the proper guidance, this can be resolved favourably as long as the complaints, in fact, have little merit.
The IAT is good at trying to ensure that complaints are dealt with fairly. Some checks and balances are required however, and some work is still needed to comply with international standards in relation to due process and natural justice.
To hold, fold, walk or run
Luckily, the option to “run” is (almost) never advised in relation to immigration appeals. Walking away may sometimes be considered if you do not really want to stay in the Cayman Islands for the long term. In such a case, the appeal can be withdrawn and a final one year work permit sought.
The appeal process can be emotionally and financially draining. The key is that if you are “going to play the game then you got to … play it right”. If your case is strong, your commitment to the Islands steadfast and your legal representation good, then you stand a better chance of winning.
In the meantime, you are generally able to continue to live and work in the Cayman Islands and although the state of limbo that ensues can be stressful, the effort undertaken is often very worthwhile as it can result (at least in relation to applicants for Permanent Residence) in the opportunity to become naturalised and, eventually, to seek the right to be Caymanian. The key, it seems, is realising that many times, the strength of your case lies in good management and presentation. The benefit of strong legal representation is the assistance gained in fully appreciating which battles to fight and how, and when it might be time to “fold ‘em”.