Amendments to the Customs and Border Control Act (2022 Revision) passed in Parliament on Monday, 12 December will allow for faster determination of asylum applications and appeals to reduce the length of time migrants who do not qualify for refugee protection spend in the Cayman Islands.
The amendments arise during a mounting irregular migration crisis that has brought 360 undocumented Cuban migrants to the Cayman Islands since April, with an influx of 100 in October alone and several subsequent arrivals increasing the number almost daily.
Due to the magnitude of the problem, Premier Hon. Wayne Panton certified the Customs and Border Control Amendments Bill (the 'asylum' amendments) as an emergency bill, thereby allowing it to be considered in Parliament with a consultation period of less than 28 days.
Deputy Premier and Minister for Border Control & Labour, Hon. Chris Saunders, who brought the Customs and Border Control (Amendment) Bill, 2022 to the House of Parliament for its Second Reading, said, “We are in the midst of a crisis. The continued arrival of increasing numbers of irregular migrants to our shores, primarily from Cuba, is a crisis with serious economic and national security implications for our Islands. And it is a crisis that is worsening every day.”
The Deputy Premier explained that the growing numbers of migrants arriving are putting a severe pressure on Customs and Border Control (CBC) from a logistical point of view, both in Grand Cayman and in Cayman Brac. Several other agencies are also under strain and working quickly to provide urgently needed accommodation for these migrants.
From a financial perspective there are serious implications. The cost of migrant maintenance and accommodation from January to the end of October 2022 was slightly over CI$1.6 million. Given the increasing numbers and the need for additional security measures, projected costs for just November and December will add CI$1.3 million to the tally, bringing the year-end estimated total to over CI$2.9 million.
The Deputy Premier noted that the 2022/2023 two-year budget allocated just CI$1.53 million for the management of refugees and a supplementary appropriation will be required to fund the increasing costs for the remainder of 2022 and into 2023.
The monthly cost per migrant is around CI$1,800, which is inclusive of food, shelter, medical care, and security. The average stay for migrants in the Cayman Islands is nine months, bringing the average total cost per migrant to CI$16,200 without considering costs for inter-island travel and transport back to Cuba.
Deputy Premier Saunders explained, “The magnitude of the financial burden is directly related to the length of time that a migrant remains in the Cayman Islands. The longer they remain here, the more it costs. It is imperative that we shorten the average length of stay as one way of limiting the negative impact on public funds.”
Almost all irregular migrants arriving in the Cayman Islands apply for asylum. There are currently 360 active asylum applications at various stages in the process for 357 Cubans, one Jamaican, one Venezuelan, and one Italian.
While the Cayman Islands must adhere to its obligations under the 1951 U.N. Refugee Convention and the Memorandum of Understanding with Cuba, Cabinet has approved changes largely mirroring similar recent amendments in the United Kingdom that will expedite asylum applications and appeals while continuing to observe all international requirements.
The Deputy Premier explained that a higher standard will be used by the CBC Director and the Refugee Protection Appeals Tribunal (“the Tribunal”) when assessing whether an applicant for asylum has demonstrated a well-founded fear of persecution.
He said, “Specifically, it must be determined on the balance of probabilities whether the asylum seeker has a characteristic which could cause them to fear persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion and if they do in fact fear such persecution in their country of nationality as a result of that characteristic.”
The second change to the law is to facilitate quicker decision making by allowing the CBC Director to delegate his decision-making powers to a CBC Officer of the rank of Assistance Director or above.
To prevent the appeals process being used to prolong a person’s stay in the Cayman Islands, the CBC Director will have the power to refuse an application and certify it as clearly unfounded if he is of the opinion that an application is without substance.
This determination may be made based on a migrant’s initial interview upon arrival or after a full asylum interview. When an application has been certified in this way, the applicant will not have a right of appeal to the Tribunal.
These changes will reduce the number of migrants who need to undergo a full asylum interview and subsequent assessment, thereby reducing the length of time they are in the Cayman Islands before repatriation.
The Deputy Premier explained, “This certification mechanism and absence of a right of appeal reflects the UK’s policy with respect to asylum applications. I should add, though, that individuals who have their asylum application rejected on this basis will still have access to the courts through judicial review.”
Another important change allows CBC to deem that a migrant has abandoned their asylum application where the person fails, without good reason, to attend their scheduled asylum interview, or avoids service of documents requiring them to attend an interview or appointment.
The amendments also introduce offences relating to giving false or misleading information when making an asylum application which carry a sentence of imprisonment for up to two years.
The sequence of events during the appeal process is also being streamlined to allow for faster disposal of appeals.
The composition of the Tribunal is also being expanded from five members to a chairperson, up to five deputy chairpersons and a panel of members, thereby allowing the Tribunal to sit in up to six divisions simultaneously and significantly reduce the waiting time for appeals to be heard.
The Deputy Premier noted that the amendments will only apply to asylum applications and appeals that are received after the date on which the Bill is enacted and comes into force. All applications received before that date will be processed in line with the current provisions of the Act.
Finally, there is also an amendment being made regarding those who are granted asylum. A person granted asylum will no longer receive indefinite leave to remain in the Cayman Islands from the outset but will instead be granted leave to remain for three years. Towards the end of this period, they may apply for a review and if they still meet the criteria for refugee protection, this will be converted to indefinite leave to remain. If they do not meet the criteria, they will be required to leave the jurisdiction. This two-stage approach again mirrors UK legislation.
Deputy Premier Saunders noted to the House that diplomatic talks were held locally from 6-7 December with a delegation from Cuba led by Ambassador Ernesto Soberón Guzmán aimed at shortening the time it takes to return migrants to Cuba, greater search and rescue coordination to save lives, and targeting of human smugglers for prosecution.
“I would like to thank the Cuban delegation for a very productive set of meetings,” the Deputy Premier said, before recommending the Customs and Border Control (Amendment) Bill, 2022 for favourable consideration.