Attorney General of the Cayman Islands and another v Joey Delosa Buray and another, Zanna Me-Waakie Jones Hunter intervening (Cayman Islands)

A declaration of incompatibility should ordinarily be based on the facts of the dispute before the court. It should not be used to decide whether legislation might produce incompatible results in hypothetical future cases where the claimant’s rights have not been breached or threatened.

Refusal of permanent residence does not, by itself, interfere with private or family life. The relevant question is whether removal or deportation would do so. A separate power to permit a person to remain and work may provide sufficient protection. Where such a power exists, legislation is not incompatible merely because the points system does not itself provide an exceptional route to permanent residence.

Two foreign nationals who had lived and worked in the Cayman Islands applied for permanent residence under the statutory points system. Their applications were refused because they scored below the statutory minimum. The Immigration Appeals Tribunal and the Grand Court dismissed their appeals.

The Court of Appeal of the Cayman Islands also dismissed the appeals but declared section 37(3) of the Immigration Act incompatible with section 9 of the Bill of Rights. It considered that exceptional cases might require consideration of private and family life outside the points system, and that section 53(1)(b) did not provide an adequate power to do so.

The Attorney General appealed. The issues were whether the declaration was impermissibly hypothetical and whether the legislation in any event provided a lawful means of protecting section 9 rights without granting permanent residence.

Appeal allowed. The Court of Appeal was wrong to make a declaration of incompatibility.

1. Declarations on hypothetical facts. A finding of incompatibility should relate to the facts of the dispute before the court. The judicial function does not extend to a general review of the statute book. The power to make a declaration is a remedy of last resort where legislation prevents an effective remedy for an actual or threatened breach. The principle in R (Chester) v Secretary of State for Justice [2013] UKSC 63 was followed.
2. The Court of Appeal had found that neither claimant’s private or family life required consideration outside the points system. It identified no possible future case, or class of case, in which section 9 would require permanent residence despite failure to attain the statutory score. Its declaration was therefore abstract and theoretical. A rare obiter finding may be possible where the circumstances of incompatibility can be identified with reasonable precision, as illustrated by R (Bibi) v Secretary of State for the Home Department [2015] UKSC 68, but that condition was not met.
3. Residence status and private life. Section 9 does not guarantee a particular type of residence permit. Refusal of permanent residence does not itself prevent the enjoyment of private or family life. The relevant interference would be removal or deportation. The reasoning in Sisojeva v Latvia (2007) 45 EHRR 33 was applied.
4. Power to grant an exemption. Section 53(1)(b) of the Immigration Act permits the Cabinet to declare any person exempt for any purpose. By section 93(b)(iii) of the Customs and Border Control Act, that exemption permits the person to remain and reside lawfully. Section 24 of the Bill of Rights requires the Cabinet to exercise the power compatibly with section 9 where refusal would make removal or deportation incompatible. The legislation therefore contains a means of protecting section 9 rights outside the points system, without granting permanent residence.
5. The additional evidence applications were refused because the evidence came too late and was irrelevant to whether the statutory power existed. The Board advised His Majesty to allow the appeal.

1. Privy Council: Appeal allowed. The declaration of incompatibility was unjustified.
2. Court of Appeal of the Cayman Islands: Appeals dismissed, but section 37(3) of the Immigration Act was declared incompatible with section 9 of the Bill of Rights.
3. Grand Court: The appeals from the Immigration Appeals Tribunal were dismissed.