Case 1/06 Luarca

Final Case Report — 1/06 Luarca

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Introductory Explanatory Note

This is the first case to come before the Cayman Islands Human Rights Committee (“HRC”) and due to the breadth of the issues involved, along with the long time frame over which the complaints span; the case has presented a number of challenges for the HRC. In just recognition of the serious nature of the issues brought to the HRC by the complainant, the HRC has had to utilise the full range of tools at its disposal to conceptualise, investigate and appraise this complaint.

The previously untested Procedural Protocol, which was established to provide the HRC with a clear direction for processing complaints, has, on the whole, stood up valiantly to these challenges. However, the circumstances of this case and particularly the urgency with which the HRC was required to act as a result of the complainant being on a hunger strike; have required several refinements to the HRC’s Procedural Protocol.

It should be noted that these refinements do not in any way breach the existing Procedural Protocol, but instead enhance and fine-tune those rules, so that the anticipated procedure functions more effectively in all cases. A report outlining these refinements has been placed before the HRC and the Procedural Protocol has accordingly been amended to reflect these more comprehensive procedural rules. Notwithstanding that these refinements have been implemented, they are also identified and explained in the context of the final opinion in this case.

Reception of Complaint

On the 7th February 2006, Dr. Luis M. Luarca G. wrote to the HRC and requested that the HRC investigate his case.

This complaint was initially submitted through Dr. Victor Look Loy as a member of the HRC on the 7th February 2006. On 9th February 2006, a copy of the same letter, signed by Dr. Luarca and addressed to the CIHRC, was received at the Ministry of Education, Training, Employment, Youth, Sports and Culture. It is noted here that both avenues of submission are equally acceptable methods of accessing the HRC.

For the avoidance of doubt, it should also be noted that individual or general issues may also be brought to the HRC by members of the HRC without the need for an individual complainant.

Procedure for Receiving Complaint

On the 7th February 2006, the HRC Procedural Sub-Committee also met for its inaugural meeting. However, the Procedural Sub-Committee was clearly unable to formally investigate a complaint that had not, at that stage, been formally received by the HRC. Under the HRC’s Procedural Protocol, any complaint must be first received and accepted by the HRC.

Notwithstanding this strict adherence to correct procedure, the members of the Procedural Sub-Committee were all cognizant of the particular urgency surrounding this complainant’s situation and of the important issues that were raised by the complaint. This predicament was compounded by the potentially harmful delay that would be incurred if there was no alternative to waiting until the next meeting of the HRC, which was scheduled for 22nd February 2006, in order to formally receive the complaint.

Accordingly, the members of the Procedural Sub-Committee were all of the view that, quite separate from their procedural function, it was their duty to alert the Chair of the HRC of the need to act promptly in this matter.

On the 8th February 2006, the Chair was informed of the reception of the complaint and of the urgency attached to it. The matter was accorded priority treatment by the Chair, who undertook to arrange for the reception of the complaint and subsequently for its reference to the Procedural Sub-Committee for further investigation, as provided for under the Procedural Protocol.

This action was supported by all members of the HRC, whose opinions were sought. When no objections to this course action were forthcoming by the established deadline, the complaint was formally received and the Procedural Sub-Committee activated on 9th February 2006. As such, it has now been established that a complaint can be received by the HRC, and acted upon in an emergency, without the need for a full meeting of the HRC.

The receipt of this complaint was formally acknowledged in a letter, dated 15th February 2006, which was hand-delivered to the complainant on the same day.

However, before the reception of the complaint could be formally acknowledged, the process was overtaken by the exigencies of the situation. By the 10th February 2006, four members of the Procedural Sub-Committee had already met with the complainant in order to obtain further information.

Although not part of the formal procedure for receiving complaints, it should also be noted that the Chair of the HRC met personally with the complainant on 16th February 2006, in an effort to assure the complainant that the HRC was actively engaged in investigating his concerns.

Nature of Complaint

The complainant is a Cuban national, who was granted political asylum in the Cayman Islands in December 1994.

In his original letter, the complainant outlined five concerns:

Following the acceptance of his claim for political asylum, the complainant’s status in the Cayman Islands was given a degree of permanency by the grant of permanent residency with the right to work. It is the complainant’s assertion that this is still an inferior position vis-à-vis people who are Caymanian and that this places him in a disadvantaged position. The complainant asserts that as a refugee, the 1951 Convention on the Status of Refugees should govern his situation and that his situation breaches Article 17 (Wage-Earning Employment) and Article 24 (Labour Legislation and Social Security) of this Convention.
The application form that the complainant was required to complete, when applying for a job at George Town Hospital, asked him to indicate his religious denomination. The complainant alleges that this amounts to religious discrimination.
The need for more “officers” to be seconded to the HRC.
Letters received by government officers need to be answered more promptly and at least within four weeks.
The press are overly restrained by libel laws, which the complainant alleges are an unnecessary limitation on freedom of expression.

At the interview conducted on 10th February 2006, the complainant expanded upon his initial concerns, raising one further substantive issue:

The complainant is additionally aggrieved that his medical qualification, obtained in Cuba, has not been recognised in the Cayman Islands. Whilst the complainant accepts that every jurisdiction has the right to set required standards for professional qualifications, he believes that he should have been afforded the opportunity to supplement his existing qualification so that he could satisfy the standards required for medical practice in the Cayman Islands. In particular, the complainant alleges that other foreign nationals with medical qualifications that are not recognised in the Cayman Islands have been assisted in obtaining supplementary qualifications and that this differential treatment is in breach of Article 22 of the Convention on the Status of Refugees.

Some of the concerns expressed by the complainant do not give rise to any breach of international human rights treaties, which have been extended to the Cayman Islands. For example, the prompt answering of letters addressed to government officers may be desirable in the interests of good administration, but it does not, at least for the purposes of the HRC, fall to be considered as a human right.

Similarly, there are no international guidelines on the size of national bodies established for the protection and promotion of fundamental rights. The HRC is a new committee and is in the process of establishing procedures. The operation of these is, for the time-being, constantly under review, but is not a matter for adjudication in this complaint.

The remaining issues all raise human rights concerns and can be considered by the HRC. For the purposes of this report, the issues raised in the initial complaint and those referred to in interview have been consolidated in the following fashion:

The allegation that there has been a breach of Article 17 of the Convention Relating to the Status of Refugees.
The allegation that there has been a breach of Article 22 of the Convention Relating to the Status of Refugees.
The allegation that there has been a breach of Article 24 of the Convention Relating to the Status of Refugees.
The allegation that there has been religious discrimination, which could, for example, engage Article 9 of the European Convention on Human Rights, which provides for freedom of religion, or Article 9 in conjunction with Article 14 of the European Convention on Human Rights. Article 14 of this Convention, provides for non-discrimination on various grounds, including religion, although it may only be utilised in conjunction with one the other substantive rights contained in the Convention; in this case Article 9.
The allegation that there has been an infringement of the right to freedom of expression, which would engage Article 10 of the European Convention on Human Rights and Article 19 of the International Covenant on Civil and Political Rights.

Chronology of Events

It is necessary to appreciate the context in which these complaints have arisen; to which end, the following chronology of events is useful:

On the 8th September 1994, the complainant arrived in Grand Cayman.

On the 14th December 1994, the complainant was granted asylum.

In December 1994, the complainant claims that he was told verbally that; notwithstanding his Cuban medical qualification, which the HRC has received and accepts; he could not practice as a doctor in the Cayman Islands. The complainant has also provided names of witnesses who will attest to this fact. The complainant has made reference to this claim on a number of occasions, so for the avoidance of doubt, it should be noted that the HRC sees no reason to discount that this event took place.

On the 24th February 1995, the complainant received a letter from the Health Practitioners Board, indicating that the Board was investigating the possibility of going to Jamaica in order to qualify there, which would then have entitled the complainant to practice in the Cayman Islands.

On the 15th June 1995, the complainant received a letter from the Health Practitioners Board explaining the position in Jamaica, its relevance to the Cayman Islands and the guidelines for registration in the Cayman Islands. This letter indicated that the complainant would be required to spend two years in Jamaica in order to supplement his existing medical qualification with a view to then being able to practice in the Cayman Islands.

Around the middle of 1995, the complainant claims that he was offered a job at the Cayman Medical and Surgical Centre by Rebecca Smith, only to be informed several days later that he could not be employed in a medical capacity in the Cayman Islands.

Between 1995 and 1997, the complainant took various other jobs in the Cayman Islands.

In 1997, the complainant spoke with a lawyer and was advised that he had no legal redress in respect of his inability to practice medicine in the Cayman Islands.

In 1998, the complainant alleges that he asked for a position as a physician’s assistant, but was told that there were no places.

The complainant further claims that he wrote letters to the Honourable Anthony Eden querying press reports regarding the employment of two Cubans as physician’s assistants and asserting that despite a similarity in his immigration status, he was not being offered similar training opportunities.

The complainant was referred to the hospital, although nobody at the hospital was able to receive the complainant at that time.

Approximately one month later, the hospital telephoned the complainant to discuss if he was interested in attending a course that led to a qualification as an emergency medical technician. The complainant welcomed this opportunity and in spite of some confusion between the complainant and those persons responsible for administering the course, the complainant did commence the course. When the complainant was informed that even if he passed the course, there was no guarantee that this would result in employment, the complainant saw no reason to continue with a course, for which he, as a doctor, was already over-qualified.

On 29th August 1998, the complainant was dismissed from his job as a security officer with Safeguard Security. Documentation provided by the complainant establishes that the complainant had been employed by Safeguard Security for less than a year at the time of his dismissal. The complainant took this matter to a Labour Tribunal, which upheld the complainant’s claim for unfair dismissal.

Throughout 1999, the complainant asserts that he made repeated requests about becoming registered to practice medicine in the Cayman Islands.

In 2000, the complainant asserts that he tried to speak with the Honourable Gilbert McLean, the then Minister for Health about being registered, but his calls were never returned and no appointment was given. The complainant further claims that at this time, he also attempted to contact the Honourable Kurt Tibbetts, the Honourable Frank McField and Captain Eugene Ebanks with the same objective.

In 2001, the complainant took a job as a security guard with Security Centre and was stationed at Deloitte and Touche.

In 2004, the complainant was informed by Security Centre that any overtime worked could only be paid at the regular rate. The complainant refused to accept these terms and parted company with his employer. The complainant claims that he was dismissed, although a letter from Security Centre dated 1st December 2004, provided by the complainant, suggests that this may have resulted from the complainant’s refusal to sign an Employee Confidentiality Agreement, along with the letter to the Labour Tribunal requesting permission to be paid at the regular rate for any overtime work. The HRC has not and is not required by the facts of this case to form a view on who terminated this employment relationship, but is nonetheless obliged to note it as a part of the chronology of events articulated by the complainant.

In 2005, the complainant took various other employed positions.

In September 2005, the complainant applied at George Town Hospital for a position as a self-payment collector, but was not awarded the position.

On the 7th September 2005, the complainant also applied for a job as a security guard at the airport, but never received a response.

In October 2005, the complainant applied for a job as a security guard at the George Town Hospital.

On the 11th November 2005, the complainant received a letter indicating that he was not selected for the job at the hospital.

In December 2005, the complainant took a job at the Safehaven golf course, but resigned because he claims that his employer refused to pay his health insurance and pension. Documentation provided by the complainant does, however, suggest that pension contributions were made and whilst this documentation also indicates that no deductions were made for health insurance, this does not confirm that such payments were not made by this employer.

On the 30th January, the complainant began his hunger strike in protest of the injustices he believes that he has suffered since 1994.

Investigation of Complaint

The initial phase of the investigation of this case was conducted in a tense environment, with the complainant continuing his hunger strike. The Procedural Sub-Committee therefore sought to progress its investigation rapidly in advance of the next scheduled meeting of the full HRC, so that the case could be reviewed at that point.

Initial enquiries seeking clarification and additional information were made of the Department of Employment Relations, the Chief Immigration Officer, the Ministry of Health and the United Nations High Commission for Refugees (“UNHCR”).

At his request, the complainant additionally met with the Chairman of the CIHRC on the 16th February 2006.

During this phase of the investigation, the complainant also spoke periodically with the Chairman and other members of the Procedural Sub-Committee and submitted supplementary materials to the HRC for consideration on the 17th, 20th and 21st February 2006.

At the full meeting of the HRC, on 22nd February 2006, the Procedural Sub-Committee presented a detailed Preliminary Opinion, which outlined the receipt of this complaint, its investigation thus far, along with preliminary recommendations.

At that meeting, the HRC recorded its relief in hearing that the complainant had ended his hunger strike.

Having considered the Preliminary Report prepared by the Procedural Sub-Committee, the HRC decided that:

This complaint did raise serious human rights issues;
As a result of the evidence provided, the Committee was concerned that it needed further information before giving a final opinion as to whether there had been a breach of obligations under the 1951 Convention Relating to the Status of Refugees, or any other applicable human rights instrument;
To which end, the Committee decided to wait for clarification from the UNHCR on the extent of the obligations arising from the 1951 Convention Relating to the Status of Refugees.
The Committee also decided to seek clarification from various other individuals in order to properly assess the merits of this complaint.

The complainant was informed accordingly.

Further and additional correspondence was subsequently entered into with the UNHCR, the Cayman Islands Health Practice Commission and the Health Services Authority in the Cayman Islands.

On 9th March, the complainant requested that the HRC halt its investigation of his case. This request was not consented to and the Chair of the HRC instructed that the process, having commenced, should continue to its culmination. Whilst the HRC is always sensitive to concerns of individual complainants, it is also mindful of its broader obligation to promote human rights across the community. Since this case was thought to encompass issues that could enhance the position of all refugees in the Cayman Islands, it was decided that the public interest in continuing the investigation outweighed the individual concerns expressed by the complainant.

On the 16th March, the complainant had lengthy discussions with the Deputy Chair of the HRC, in which the complainant engaged once more with the work of the HRC. The complainant and the Deputy Chair reviewed the chronology of events with a view to ensuring that all aspects of the complaint were fully and accurately recorded. Amendments were made to the chronology of events, which met with the approval of the complainant.

A significant amount of additional supplementary material was provided by the complainant on the 20th March 2006.

On the 21st March 2006, additional information relating to the security guard position at the George Town Hospital was received in writing.

On the 23rd March 2006, the complainant met once again with the Deputy Chair in order to provide further information.

On the 24th March, the Procedural Sub-Committee then met to review all of the additional information supplied by the complainant, along with answers to enquires that had been received. A significantly clearer picture of the issues in the case had now been obtained, although there were still some additional points of clarification and answers needed to make final recommendations.

At the next meeting of the full HRC on the 29th March 2006, the HRC noted the findings of the Procedural Sub-Committee and deferred its final determination of this complaint until its next meeting, pending receipt of outstanding correspondence. If necessary and practicable, the HRC resolved to call an extraordinary meeting of the full HRC in order to conclude this case. The complainant was informed accordingly.

At the request of the complainant, exceptional permission was granted to the complainant to address the full HRC at its meeting on the 29th March 2006. Whilst highly unusual, the HRC was prepared to entertain this audience, out of an abundance of caution, in order to ensure that all aspects of this broad and wide-ranging complaint were properly understood. Unless these exceptional circumstances are present, it is unlikely that the need to address the full HRC will arise in other cases.

Following the full meeting of the HRC, the Deputy Chair wrote to the complainant, informing him of the outcome of that meeting, explaining the reasons why additional time was required and assuring him of the importance that the HRC attached to this complaint. This was acknowledged by the complainant, with thanks, on the 30th March 2006.

On the 5th April 2006, the complainant met with the Deputy Chair in order to provide further clarification of certain matters.

On the 5th March, the complainant also contacted the UNHCR in order to investigate the possibilities of resettlement in a third country. This correspondence was copied to the HRC.

At various stages throughout April, the complainant recommenced, then stopped, and threatened to recommence once again, his hunger strike.

On the 20th April 2006, the Procedural Sub-Committee met to review this case once again. Having received answers to all of its enquiries, it was now in a position to make final recommendations to the full HRC.

These recommendations were received by the full HRC at its meeting on the 26th April 2006. The recommendations were accepted unanimously and a Final Opinion commissioned.

The complainant was informed that the matter had been decided and that a Final Report was to be prepared.

On the 3rd May 2006, more information seeking to justify the complainant’s preference for a security position with a government entity over a private sector security position was received.

The HRC would like to express its gratitude to all of the persons and organisations that it approached for further information, clarification and assistance in this investigation.

Assessment of the Merits of Complaint

Introduction: The Relevance on International Human Rights Treaties

Under the HRC’s Terms of Reference, the HRC is committed to respecting the core international human tights treaties, including the Universal Declaration of Human Rights and the International Covenants on Human Rights. This is further affirmed in the HRC’s Procedural Protocol, which establishes that the international human rights treaties, which have been extended to the Cayman Islands, will operate as the standard of rights that the HRC will measure national practice against.

The most important of these international human rights treaties are the United Nations International Covenant on Civil and Political Rights, the United Nations International Covenant on Economic, Social and Cultural Rights, the United Nations Convention on the Elimination of All Forms of Racial Discrimination, the United Nations Convention on the Rights of the Child, the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the United Nations Convention relating to the Status of Refugees and the European Convention on Human Rights.

Additional note should also be made of the United Nations Convention on the Elimination of All Forms of Discrimination against Women, which following lobbying from the HRC, will also shortly be extended to the Cayman Islands.

In the context of refugees, the position is primarily governed by the United Nations Convention Relating to the Status of Refugees, which has been extended to the Cayman Islands. This Convention was ratified by the United Kingdom on the 11th March 1954 and then extended to the Cayman Islands, via Jamaica, on the 25th October 1956.

It should further be noted that this Convention Relating to the Status of Refugees is expressly referred to in the Immigration Law 2003, which provides for asylum in Cayman Islands law. The Convention is not, however, incorporated in its entirety by this, or indeed any other, legislative provision in the Cayman Islands.

The allegation that there has been a breach of Article 17 of the Convention Relating to the Status of Refugees

Article 17 of the Convention Relating to the Status of Refugees, provides in respect of wage-earning employment:

The Contracting States shall accord to refugees lawfully staying in their territory the most favourable treatment accorded to nationals of a foreign country in the same circumstances, as regards the right to engage in wage-earning employment.
In any case, restrictive measures imposed on aliens or the employment of aliens for the protection of the national labour market shall not be applied to a refugee who was already exempt from them at the date of entry into force of this Convention for the Contracting State concerned, or who fulfils one of the following conditions:
- He has completed three years' residence in the country;
- He has a spouse possessing the nationality of the country of residence. A refugee may not invoke the benefit of this provision if he has abandoned his spouse;
- He has one or more children possessing the nationality of the country of residence.

The Chief Immigration Officer contends in his message of 10th February 2006 that Cayman’s domestic legislation does comply with the Convention Relating to the Status of Refugees, in that a person granted refugee status is granted the most favourable treatment of nationals of a foreign country.

Section 79(4) of the Immigration Law 2003 provides that “A person whose application … has been successful shall be granted leave to remain indefinitely in the Islands and the right to work for any employer in any occupation.”

The Chief Immigration Officer therefore asserts that Cayman Islands’ legislation goes beyond the Convention’s requirements as foreign nationals who are granted permanent residency with the right to work are normally restricted to specified occupation(s), while no such restriction is imposed on refugees in Cayman.

Accordingly, the Chief Immigration Officer is correct in his assertion that the practice in the Cayman Islands of providing political refugees with permanent residency and the right to work is at least compliant with Article 17(1) of the Convention Relating to the Status of Refugees.

However, Article 17(2) of the Convention Relating to the Status of Refugees provides for greater rights for certain refugees if they fall into particular categories. Each of the three categories identified demonstrate evidence of an enhanced connection between the refugee and the territory in which they are now resident.

For example, if a refugee has a spouse, child or children who possess the nationality of the country of residence, they have a greater connection to the territory over and above the regular refugee and Article 17(2) of the Convention Relating to the Status of Refugees therefore provides that the refugee should not be subjected to any “restrictive measures imposed on aliens or the employment of aliens for the protection of the national labour market.”

Similarly, under Article 17(2)(a) of the Convention Relating to the Status of Refugees, the completion of three years of residence in the territory also evidences a stronger connection to that territory, sufficient to not be subjected to any “restrictive measures imposed on aliens or the employment of aliens for the protection of the national labour market.”

This distinction, recognised in the differences between the two different paragraphs of Article 17 of the Convention Relating to the Status of Refugees, is of fundamental importance and the HRC is of the view that this requires greater awareness in the Cayman Islands. In summary, the message that needs to be conveyed is that under Article 17, refugees are therefore initially granted certain rights in respect of wage-earning employment and then subsequently, if they fall into particular categories, they can then be accorded further rights.

In the instant case, the HRC must first determine whether the complainant falls to be considered under Article 17(1) or Article 17(2) of the Convention Relating to the Status of Refugees.

It is generally accepted that most Cuban refugees in the Cayman Islands merely view these Islands as a transit point to their ultimate destination, which is in most cases, the United States. The Complainant’s length of tenure in the Cayman Islands, combined with the difficulties that he has encountered during this term, clearly demonstrate that he has not intended to use the Cayman Islands as a transit point and that, to the contrary, he has been committed to remaining in these Islands.

The HRC did take note of the complainant’s enquiry, dated the 5th April 2006, into the possibilities of resettlement in a third country. However, notwithstanding the complainant’s possible future plans, the HRC is still of the view that the complainant has demonstrated his commitment to remaining in the Cayman Islands over a significant the period of time since the grant of his refugee status.

As such, the HRC concluded that this complainant falls to be considered under Article 17(2) of the Convention Relating to the Status of Refugees.

The complainant, in this case, should not therefore be subjected to any of the provisions of the Immigration Law 2003, which permit differential treatment in employment between persons who hold the right to be Caymanian and permanent residents with the right to work.

Having established the extent of the obligations arising out of international law and how these apply to the complainant, it then falls to assess whether these obligations have been infringed in the context of this complaint.

Following interviews with the complainant, it was established that the basis of this complaint under Article 17 of the Convention Relating to the Status of Refugees originates from the complainant’s application for a job as a security guard at the George Town Hospital in October 2005.

The complainant alleges that he was unsuccessful in his application for this position, because the Health Services Authority preferred a young and inexperienced Caymanian for the job. The complainant further contends that any such preference is in breach of Article 17 of the Convention Relating to the Status of Refugees.

Based upon the extent of the obligation under the Convention Relating to the Status of Refugees, established above, the HRC affirms that if the complainant was denied employment as a security guard at the George Town Hospital simply because he was not Caymanian and a lesser qualified Caymanian was preferred for the position; then this would be in breach of Article 17(2) of this Convention.

However, the complainant’s allegations have been refuted by the Health Services Authority. In her letter of the 8th March 2006, the Human Resources Advisor for the Health Services Authority explains that, following interviews held on the 14th October 2005:

“The candidates hired included one Caymanian and two Jamaicans. Of the two Jamaicans, one had 13 years security experience and the other over 8 years police experience working in a hospital. The Caymanian candidate had 16 years of security experience. Along with their considerable experience, these candidates exhibited a high level of professionalism throughout the interview process.”

Notwithstanding that the complainant has a medical qualification; the Health Services Authority was of the opinion that the complainant possessed neither comparable experience to those persons appointed, nor the requisite skills needed to perform the job. In support of this conclusion, the Human Resources Advisor for the Health Services Authority also explained in the letter of 8th March 2006, that the complainant had not interviewed well; that the complainant did not listen to questions; and that as a result of the complainant’s interruptions, the interview panel had found it difficult to assess his skills and abilities.

In her second letter of the 3rd April 2006, the Human Resources Advisor for the Health Services Authority further advised that a number of factors, including the recent shooting at the George Town Hospital, have resulted in the Health Services Authority increasing the level and range of skills required for Security Officers at the George Town Hospital. The Health Service Authority has therefore increased the requirements to include years of experience in the security field and preferably, a background in police work. Specific reference was also made to skills such as public relations, conflict resolution and profile assessment, which Security Officers employed at the George Town Hospital might now require in excess of Security Officers employed in many other locations.

It is worth noting, as an aside, that these enhanced skills may explain why the Security Officer position at the George Town Hospital appears to pay significantly more than other similar security jobs in the private sector. In turn, it may also explain why the complainant is apparently adamant that he will only work for a government entity.

The action of the Health Services Authority, in light of its responses to enquiries by the HRC, actually falls to be scrutinised in two respects. Firstly, as the complainant himself notes, if a less, or under-qualified Caymanian, was preferred for the position, over and above the complainant, this would have breached the obligation contained in Article 17 (2) of the Convention Relating to the Status of Refugees. However, in

addition, this provision would have also been infringed, had the complainant not received treatment equivalent to that of a Caymanian, and a non-Caymanian preferred for the position instead. In both scenarios, the complainant would have been treated less favourably than a Caymanian in a similar position.

In respect of the first point, the Caymanian that was awarded the position appears not to have been less or under-qualified, as the complainant alleges. Instead, according to the evidence provided by the Health Services Authority, the preferred Caymanian had significantly greater experience than the complainant. As such, the complainant was not treated less favourably vis-à-vis a Caymanian because he was a refugee.

In respect of the second point, the appointment of two non-Caymanians appears to have been made on the basis that they met established criteria, which the complainant failed to meet. As such, a Caymanian, who happened to be in an identical position to the complainant, would not have been appointed either. Accordingly, the complainant was not treated any less favourably because he was not Caymanian.

In respect of both points, it was therefore the fact that the complainant did not meet the requisite skills, as measured against established criteria for the position, which formed the basis for the decisions. As such, the decision, in both cases, to overlook the complainant did not infringe Article 17(2) of the Convention Relating to the Status of Refugees.

Having arrived at this conclusion, the HRC would nonetheless like to reaffirm the extent of the obligation that arises under Article 17(2) of the Convention Relating to the Status of Refugees. The HRC does this because, notwithstanding the outcome of this particular aspect of this complaint, it is not convinced that all government entities fully grasp this obligation. Indeed, when the Health Services Authority attempted to explain its perspective in this very complaint, its main justification was: had the complainant possessed the requisite skills, he would have been offered the position over non-Caymanian applicants. This is all very well; but it does not reflect the full extent of the obligation in Article 17. Refugees must not only be given preferential treatment over non-Caymanians, as provided for by Article 17(1); they must also, where, like the complainant, they have resided in the Cayman Islands for more than three years; or where they fulfil any of the other criteria established in Article 17(2), be treated in the same manner as Caymanians for the purposes of wage-earning employment.

The allegation that there has been a breach of Article 22 of the Convention Relating to the Status of Refugees 1951

Article 22 of the Convention Relating to the Status of Refugees 1951, provides in respect of public education:
The Contracting States shall accord to refugees the same treatment as is accorded to nationals with respect to elementary education.

The Contracting States shall accord to refugees treatment as favourable as possible, and, in any event, not less favourable than that accorded to aliens generally in the same circumstances, with respect to education other then elementary education and, in particular, as regards access to studies, the recognition of foreign school certificates, diplomas and degrees, the remission of fees and charges and the award of scholarships.

The nature of the obligation contained in Article 22(2) of the Convention Relating to the Status of Refugees differs from that previously considered in relation to Article 17(2). The fundamental difference is that whilst Article 17(2) mandates that refugees receive treatment equivalent to Caymanians for the purposes of wage-

earning employment; when it comes to public education, access to studies and the award of scholarships, under Article 22(2), this merely requires that refugees be treated as favourably as possible, and in any event, no less favourably than the treatment accorded to aliens generally in the same circumstances.

The difference in the nature of the obligations is further illustrated by an assessment of the financial implications for each provision. Under Article 17(2) of the Convention Relating to the Status of Refugees, the receiving country incurs no financial burden and is therefore obliged to facilitate greater rights. However, under Article 22(2), there will inevitably be financial implications associated with the provision of public education, which accordingly limit the extent of the obligation.

Recognising that different states have varying levels of financial resources and that it is thus difficult to lay down universal standards to which receiving countries may be held accountable; Article 22(2) of the Convention Relating to the Status of Refugees begins by aspiring to provide refugees with as favourable treatment as possible. This aspiration does not, however, provide any clear imposition on receiving countries, save that they should seek to live up to the spirit of the Convention.

A bottom-line is nevertheless drawn in Article 22(2) of the Convention Relating to the Status of Refugees. Although it is desirable that receiving countries go further in their support of refugees, they must, at a minimum, treat refugees no less favourably than other non-nationals. This, however, is the extent of the obligation that is enforceable for the purposes of this investigation.

The complainant in this case has provided evidence of medical qualifications obtained in Cuba. These qualifications indicate that the complainant is a qualified doctor, who had specialised in neurology. The HRC, which has a medical practitioner as one of its members, accepts, without question, the authenticity of these qualifications. The question that then arises is: whether, or not, Cuban medical qualifications are recognised in the Cayman Islands?

In order to practice medicine in the Cayman Islands, the complainant must comply with the local legal provisions for the registration of health practitioners, which are most recently contained in the Health Practice Registration Regulations (2005 Revision).

The Regulations specify all of the documents that an applicant needs to submit to a Council in order to be registered in the Cayman Islands; the requirements for an applicant to be fully registered; along with the requirements to be provisionally registered. Under section 5(1), an applicant may be eligible for full registration where:

he is fully registered as a health practitioner in any of the following countries -
- Australia;
- Canada;
- Jamaica;
- New Zealand;
- South Africa;
- the United Kingdom;
- the United States of America;
he has met the Caribbean regional registration requirements, to practise as a health practitioner, as set out by any relevant organisation including, but not limited to, the Caribbean Association of Medical Councils or the Caribbean Regional Nursing Body;
he has obtained qualifications from -
- the University of the West Indies; or
- any institution accredited by the Caribbean Health Education Accreditation Board; and has completed any internship required by the University or the institution where he has obtained such qualifications; or
he provides evidence that he is eligible for full registration in any of the countries listed in paragraph (a).

In his letter of 7th April 2006, the Chair of the Medical and Dental Council confirms that these provisions, which can now be found in the Health Practice Law (2005 Revision), nevertheless embrace many of the same policies contained in the Health Practice Law (2002) as well as the preceding Laws and Regulations. It would appear therefore that the same standards and criteria have been applied to the complainant throughout his quest to practice medicine in the Cayman Islands.

Applying these provisions to the case in question, the Deputy Chair of the Health Practice Commission, in his letter of 6th March 2006, asserts that the complainant “did not” and “does not meet the requirements as specified”, as his primary qualification, obtained in Cuba, is not from one of the countries specified in the law.

This reaffirms the findings of the Chair of the Health Practitioners’ Board, first conveyed to the complainant, by letter, on the 15th June 1995. In this letter, the Chair of the Health Practitioners’ Board states:

“As per the Health Practitioners’ Law of the Cayman Islands anyone registered by the Jamaican Medical Council is eligible for registration in the Cayman Islands. Reference letters stating the competency of the Practitioner are essential. To that effect, the Health Practitioners’ Board recommends that Cuban doctors have a one (1) year rotating Internship and another year of Residency in the speciality of interest.”

The complainant has, for the past decade, been unable to comply with these requirements, primarily because it would involve two years abroad. Initially, there was the suggestion that this was problematic because of the complainant’s obligations towards his mother, who was also a refugee in the Cayman Islands; although throughout, the complainant has also maintained that he could not afford to subsidise two years study abroad.

Whilst the complainant readily accepts that the Cayman Islands may set whatever requirements it sees fit for professions, including the medical professions; and, furthermore, that there is no requirement that refugees be supported in going abroad to supplement existing qualifications; the complainant does contend that if other non-Caymanians have been assisted by the Cayman Islands Government, Article 22(2) of the Convention Relating to the Status of Refugees requires that he be treated in a similar fashion.

In particular, the complainant has pointed to three different situations where non-Caymanians may have received assistance from the Cayman Islands Government for the purposes of retraining in order to practice medicine in the Cayman Islands.

Firstly, the complainant has noted, with reference to proceedings in the Legislative Assembly, contained in the Caymanian Compass on the 22nd and 27th June 2001, that there were eight non-Caymanian doctors, who were practicing in the Cayman Islands, notwithstanding that they did not comply with the requirements for registration that had been in place since 1979. The report from the 27th June 2001 specifically records the commitment from the then Health Minister, the Honourable Linford Pierson, that these doctors would be allowed to maintain their registration by undertaking specific additional medical education, for which the doctors would receive support from the Government through the Health Services Department. The complainant therefore contends that he ought to have been supported in a similar fashion.

In his letter of 7th April 2006, the Chair of the Medical and Dental Council explains that this situation arose because past Chief Medical Officers had incorrectly interpreted the law by hiring doctors to work at the Health Services Department, without submitting an application to the Health Practitioners’ Board and instead automatically placing these doctors straight onto the register. As a result of this practice, the Health Practitioners’ Board’s policy of only hiring doctors from specified countries was bypassed in a number of circumstances.

Some of these doctors had been inadvertently working with the Health Services Department for almost twenty years. When this anomaly became evident, following advice from the Government Legal Department, it was decided that the peculiar situation of these doctors required attention. Accordingly, various periods of additional training were required before continued registration by the Health Practitioners’ Board would be accepted; for which, as noted above, some support was provided.

As to whether this entitles the complainant to similar support, the HRC was of the view that these doctors, who were essentially grandfathered into the new legislation, enacted in 2002, fell into an exceptional and limited category. In support of this conclusion, the HRC noted that no other doctors received, or indeed could now receive, such preferential treatment under the new law. Moreover, these doctors did not receive this assistance out of any philanthropic or altruistic policy towards overseas doctors; but patently because these doctors were already working in this capacity in the Cayman Islands. The situation that had arisen was not the fault of the doctors concerned. They had not, for example, misrepresented their position; yet, as a result of a mistake by former Chief Medical Officers, their livelihood was subsequently under threat. Put in simple terms, the Cayman Islands Government felt that it owed these doctors an obligation to at least be provided with the opportunity to continue working in their profession.

This situation is therefore distinguishable from that of the complainant, because the complainant was a new applicant for registration in the Cayman Islands and had never previously practiced in the Cayman Islands.

The HRC also looked at the precise construction of Article 22(2) of the Convention Relating to the Status of Refugees and noted that it refers to treatment “generally” accorded to aliens in the same circumstances. The inclusion of the word “generally” would appear to envisage the possibility of exceptional circumstances, such as these, and consequently, it is the view of the HRC that Article 22(2) does not require that the complainant be treated in an identical fashion to these eight particular doctors for the purposes of “education other than elementary education” and “the remission of fees and charges and the award of scholarships.”

Secondly, the complainant has noted the situation of two other Cuban doctors, a Dr. Sedano and his wife (as they are referred to in correspondence), both of whom in fact arrived at the same time as the complainant, but who are nevertheless now able to practice in the Cayman Islands. The complainant contends that if Dr. Sedano and his wife received any assistance, then so should he because his position is indistinguishable for theirs.

In principle, this is undoubtedly true. However, the letter from the Deputy Chair of the Health Practice Commission, dated 6th March 2006, suggests that no such support was received by either Dr. Sedano or his wife. Instead, the letter explains that, following the grant of refugee status in the Cayman Islands, Dr. Sedano and his wife opted to go to Spain and were eventually registered there. Subsequently, their Spanish registration was later recognised by the General Medical Council in the United Kingdom through European Union reciprocity. Dr. Sedano and his wife therefore became eligible for registration in the Cayman Islands either directly through section 5(1 )(a), or indirectly via section 5(1 )(d) of the Health Practice Registration Regulations (2005 Revision), as opposed to the only route pursued by the complainant, which falls under either section 5(1 )(b) or section 5(1 )(c) of the Health Practice Registration Regulations (2005 Revision).

Although the situations of the complainant and Dr. Sedano and his wife were initially identical, their paths evidently diverged, resulting in differing outcomes. Moreover, central to the present discussion is the fact that Dr. Sedano and his wife altered their position without any apparent assistance from the Cayman Islands Government. This comparison does not therefore give rise to any infringement of Article 22(2) of the Convention Relating to the Status of Refugees.

Thirdly, and finally for the purposes of this aspect of the complaint, the complainant has asserted that two other Cuban doctors, who are also refugees, have been supported in supplementing their qualifications. The complainant was not able to offer any direct evidence of this assertion, although it was also supported by a further Cuban refugee doctor, Dr. Alvaro Luis Arminan, who in a letter dated 16th February 2006, claimed that he too understood that another two Cuban doctors had indeed “received assistance from the government” in 2005.

Following enquiries pursued by the HRC, this situation was confirmed by the now Acting (formerly Deputy) Chair of the Health Practice Commission, who in his letter dated 7th April 2006, acknowledges that he has been informed that “there are two Cuban refugee doctors who the Ministry has assisted to obtain the required qualification in Jamaica, in order to make them eligible for registration [in the Cayman Islands].” In his letter, also of the 7th April 2006, the Chair of the Medical and Dental Council confirms that he too is aware of the two Cuban doctors who have been assisted by the Ministry in taking the Medical Council Examination in Jamaica.

The HRC welcomes this more enlightened approach to the treatment of refugees and notes, with approval, that this is in line with the spirit of the more ambitious aspects of Article 22(2) of the Convention Relating to the Status of Refugees, which aspire to treat refugees as favourably as possible for post-elementary educational purposes.

Clearly, the complainant; were he to make an application, through the proper channels for similar support; would now be entitled to be assessed according to the same criteria used to evaluate the merits of these two doctors, who were granted assistance in 2005. This would not guarantee that the complainant would actually receive assistance; but it would ensure that the complainant was treated equally in the application process. To do otherwise would breach the minimum guarantee, established by Article 22(2) of the Convention Relating to the Status of Refugees.

This, however, is a hypothetical situation, as the complainant has not, in recent times, renewed his interest in pursuing supplementary qualifications in order to register as a medical practitioner in the Cayman Islands. Rather, the complainant has urged the HRC to declare that there was an infringement of the minimum guarantee in Article 22(2) of the Convention Relating to the Status of Refugees, which stemmed from his previous inability to obtain educational assistance.

Some doubt was expressed by the Chair of the Medical and Dental Council as to whether the complainant had requested assistance in taking the exam in Jamaica, although the HRC is satisfied that the complainant did make sufficient, and indeed persistent, attempts to obtain support. The then Deputy Chair of the Health Practice Commission did suggest, in his letter of the 6th March 2006 that he understood that the complainant “was offered assistance to take the Caribbean Association of Medical Councils examination, but did not pursue the matter.” In the absence of any evidence that the complainant was offered assistance, but declined to take it, the HRC proceeded on the basis that the complainant had, between December 1994 and sometime in 2000, sought, and continued to seek, assistance to facilitate his registration as a doctor in the Cayman Islands.

It appears that around 2000, after six years of trying, the complainant resolved to settle for alternative employment opportunities. It may be that he still continued to hold out hope that he would one day practice medicine again, although the evidence suggests that he no longer pursued this hope as vigorously. More recently, the complainant has affirmed to members of the HRC that too much time has now lapsed for him to consider returning to the medical profession as a viable option.

The final issue for resolution in this aspect of the complaint is therefore whether the recent decision to assist Cuban refugee doctors in taking the necessary exams, so as to qualify to practice in the Cayman Islands, means that the previous reluctance to assist the complainant amounted, at that time, to an infringement of Article 22(2) of the Convention Relating to the Status of Refugees.

The HRC’s conclusion on this point is that whilst the failure to assist the complainant, at the time he was seeking assistance, may not have been in line with the aspiring spirit of Article 22(2) of the Convention Relating to the Status of Refugees, this did not, however, breach the minimum, and indeed only measurable, guarantee contained in Article 22(2). If the decision to assist the two Cuban refugee doctors had been taken contemporaneously with that of the complainant, then the outcome would necessarily have been different.

The HRC therefore formed the view that the extent of the obligation in Article 22(2) of the Convention Relating to the Status of Refugees could increase over time. It is an evolving standard, which means that as any foreign nationals are treated more favourably for the purposes of post-elementary educational support, so refugees, with their right to equivalent treatment in Article 22(2) become entitled to greater rights.

Aside from the strict legal requirements of international law, the HRC was minded to note that the complainant was in an unfortunate position. As an educated person coming to the Cayman Islands, he clearly had a lot to offer, but has, unfortunately, not found the right niche or appropriate opportunity to make this contribution. The HRC agreed that the complainant’s difficulties had been compounded by delay and a lack of clear information and understanding as to his rights and the responsibilities of the Government.

In line with the spirit, which pervades the entirety of the Convention Relating to the Status of Refugees, the HRC was of the view that it would be useful to offer broader guidance to persons in similar positions and would be prepared to assist in this regard. For example, the HRC would welcome, where resources permit, the adoption of new procedures for persons granted political asylum, such as counselling on their employment options and their rights in that capacity, so as to avoid situations, such as that of the complainant, arising again in the future.

Since the complainant has not always been offered this type of assistance; if possible, the complainant should be facilitated with advice on retraining and other skills that might assist him in finding meaningful employment.

The allegation that there has been a breach of Article 24 of the Convention Relating to the Status of Refugees 1951

Article 24 of the Convention Relating to the Status of Refugees provides, in respect of labour legislation and social security:

The Contracting States shall accord to refugees lawfully staying in their territory the same treatment as is accorded to nationals in respect of the following matters;
- In so far as such matters are governed by laws or regulations or are subject to the control of administrative authorities: remuneration, including family allowances where these form part of remuneration, hours of work, overtime arrangements, holidays with pay, restrictions on home work, minimum age of employment, apprenticeship and training, women's work and the work of young persons, and the enjoyment of the benefits of collective bargaining;
- Social security (legal provisions in respect of employment injury, occupational diseases, maternity, sickness, disability, old age, death, unemployment, family responsibilities and any other contingency which, according to national laws or regulations, is covered by a social security scheme), subject to the following limitations:
  - There may be appropriate arrangements for the maintenance of acquired rights and rights in course of acquisition;
  - National laws or regulations of the country of residence may prescribe special arrangements concerning benefits or portions of benefits which are payable wholly out of public funds, and concerning allowances paid to persons who do not fulfill the contribution conditions prescribed for the award of a normal pension.
The right to compensation for the death of a refugee resulting from employment injury or from occupational disease shall not be affected by the fact that the residence of the beneficiary is outside the territory of the Contracting State.
The Contracting States shall extend to refugees the benefits of agreements concluded between them, or which may be concluded between them in the future, concerning the maintenance of acquired rights and rights in the process of acquisition in regard to social security, subject only to the conditions which apply to nationals of the States signatory to the agreements in question.

On the basis of material submitted, it is the opinion of the HRC that no issues under Article 24 of the Convention Relating to the Status of Refugees are specifically raised by this complaint.

The allegation that there has been religious discrimination, which could, for example, engage Article 9 of the European Convention on Human Rights or Article 9 in conjunction with Article 14 of the European Convention on Human Rights

Article 9(1) of the European Convention on Human Rights, which was extended to the Cayman Islands, via Jamaica, on the 23rd October 1953, provides that:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

On the basis of material submitted, it is the opinion of the HRC that no issues under Article 9 of the European Convention on Human Rights are specifically raised by this complaint. The requirement to indicate religious denomination on an application form for a government job does not, in itself, inhibit freedom of thought, conscience or religion.

The HRC has accepted that the requirement could, however, conceivably present an opportunity to discriminate on the basis of religion and consideration could be given as to whether its retention serves any legitimate purpose.

Article 14 of the European Convention on Human Rights provides in respect of the prohibition of discrimination:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political, or other opinion, national or social origin, association with a national minority, property, birth or other status.

It is therefore important to note that Article 14 of the European Convention on Human Rights is not a stand-alone provision. This can be contrasted with the general prohibition of discrimination found in Article 1 of Protocol 12 to the European Convention on Human Rights, which has not been signed by the United Kingdom, nor extended to the Cayman Islands.

In respect of Article 14 of the European Convention on Human Rights and the prohibition of discrimination on various grounds, including religion; this provision has to be activated in conjunction with one of the other substantive rights contained in the Convention. In this case, the only right that could potentially be utilised, so as to engage Article 14, is once again Article 9.

On the basis of the material submitted; and in particular, the fact that all religions were treated in the same fashion by the application form; it is the opinion of the HRC that there is no element discrimination evidenced here. As such, there was no breach of Article 9, in conjunction with Article 14 of the European Convention on Human Rights. As noted above, however, the legitimacy of including religious denomination as a requirement in the application form could be reconsidered with a view to ensuring best human rights practice.

The allegation that there has been an infringement of the right to freedom of expression, which would engage Article 10 of the European Convention of Human Rights and Article 19 of the International Covenant on Civil and Political Rights.

Both Article 10(1) of the European Convention on Human Rights and Article 19(2) of the International Covenant on Civil and Political Rights protect the right to freedom of expression.

However, both 10(2) of the European Convention on Human Rights and Article 19(3)(a) of the International Covenant on Civil and Political Rights qualify this right where necessary in order to protect the rights and reputations of others.

Provided that national libel laws are proportionate in their legitimate protection of the rights and reputations of others there is no breach of either Article 10(1) of the European Convention on Human Rights or Article 19(2) of the International Covenant on Civil and Political Rights.

On the basis of material submitted, it is the opinion of the HRC that there is no evidence to suggest that the libel laws in the Cayman Islands disproportionately restrict freedom of expression and are in breach of any international human rights treaty that has been extended to the Cayman Islands.

Conclusions and Recommendations

On the basis of the material submitted, the HRC decided that the principle contained in Article 17(2) of the Convention Relating to the Status of Refugees was not infringed in this case.

Notwithstanding this finding, the HRC is of the view that refugees must not only be given preferential treatment over non-Caymanians, as provided for by Article 17(1); they must also, where, like the complainant, they have resided in the Cayman Islands for more than three years; or where they fulfil any of the other criteria established in Article 17(2), be treated in the same manner as Caymanians for the purposes of wage-earning employment.

On the basis of the material submitted, the HRC decided that the principle contained in Article 22(2) of the Convention Relating to the Status of Refugees was not infringed in this case.

Notwithstanding this finding, the HRC also established that the principle contained in Article 22(2) of the Convention Relating to the Status of Refugees embodies an evolving standard. Following the decision to provide assistance to persons in similar circumstances to the complainant, the bar has been raised, and the complainant would now be entitled to be treated in a similar fashion were he to apply for such assistance through the proper channel now, or in the future.

On the basis of the material submitted, the HRC decided that the principle contained in Article 24 of the Convention Relating to the Status of Refugees was not infringed in this case.

On the basis of the material submitted, the HRC decided that neither the principle contained in Article 9 of the European Convention on Human Rights alone; nor the principles contained in Article 9 in conjunction with Article 14 of the European Convention on Human Rights were infringed in this case.

On the basis of the material submitted, the HRC decided that neither the principle contained in Article 10 of the European Convention on Human Rights; nor the principle contained in Article 19 of the International Covenant on Civil and Political Rights were infringed in this case.

Last Updated: 2007-01-11