The Effect Of Ellington v Chief Immigration Officer Of The Cayman Islands

• Published date: 12 June 2020
• Author: Mr Alastair David
• Subject Matter: Litigation, Mediation & Arbitration, Immigration, Trials & Appeals & Compensation, General Immigration
• Law Firm: HSM Chambers

On 29 April 2020, the Grand Court in the Cayman Islands handed down a decision in the case of Ellington v Chief Immigration Officer of the Cayman Islands. The Grand Court concluded that:

• The Law surrounding Prohibited Immigrants was incompatible with Section 9 of the Bill of Rights; and
• The decision of the Immigration Appeals Tribunal was wrong in Law.

Currently, the Attorney General is appealing against the decision with respects to (i) and therefore this article will focus on (ii).

The Background

Mr Ellington is a Jamaican national who has resided in the Cayman Islands since 2007. Up until 2013, Mr Ellington's stay in the Cayman Islands was rather unremarkable. He had a series of work permits and had no convictions recorded against him. However, in August 2013, he married his first wife (a Caymanian) and then on 23 September 2013, was involved in a robbery which took place in a supermarket. Mr Ellington's part in the robbery was that of a 'getaway driver' and he pleaded guilty to being an accessory after the fact to the robbery. Justice Quin sentenced him to a custodial sentence of 2 years and made no recommendation in regards to his deportation from the Cayman Islands.

In consequence of his sentence, being a term of imprisonment of greater than 12 months, Mr Ellington automatically became designated a Prohibited Immigrant, by operation of Law.

In December 2013, while Mr Ellington was a serving prisoner at HMP Northward, his wife gave birth to a child. As Mr Ellington's wife was Caymanian and settled in the Cayman Islands their child was born Caymanian. While Mr Ellington was serving his sentence he applied for an Residency and Employment Rights Certificate ("RERC") as the Spouse of a Caymanian. When Mr Ellington was released in February 2015 his application was still pending.

A RERC as the Spouse of a Caymanian gives the holder the ability to live and work in the Cayman Islands outside of the Work Permit regime. Unlike an RERC obtained under the points system, the holder of an RERC as the Spouse of a Caymanian can work in any role in the Cayman Islands and pay no annual fee whereas an RERC holder who obtained his RERC through the points system can only work in the job title on his RERC and they (or their employer) are expected to pay an annual fee the equivalent to that of a work permit for their occupation.

Upon his release from custody Mr Ellington was treated as a "tourist visitor" for the purposes of the Immigration Law.

In October 2015, Mr Ellington's relationship with his first wife broke down and he soon after entered into a relationship with a new woman who he was later to marry. As a result of the breakdown in his first marriage, Mr Ellington's RERC application was rejected. Mr Ellington's second wife was also Caymanian and had a Caymanian child from a previous relationship.

Mr Ellington was formally divorced from his first wife on 21 September 2016 and he married his current wife on 1 October 2016.

A new RERC as the Spouse of a Caymanian application was submitted on 10 November 2016. That application was eventually rejected on 27 April 2017 by the Caymanian Status and Permanent Residency Board ("the Board").

By the time of the rejection of the second RERC application, Mr Ellington was only permitted to stay in the Cayman Islands as a result of an interim injunction obtained on 10 November 2016, preventing his removal from the Cayman Islands pending a leave application to Judicially Review his designation as a Prohibited Immigrant.

Mr Ellington appealed the rejection of his RERC to the Immigration...