In Attorney-General of the Cayman Islands v Buray and De Souza (Hunter intervening) [2025] UKPC 22 (28 April 2025) the Privy Council has reiterated the position that a declaration of incompatibility (‘DoI’) with fundamental human rights of a provision of primary legislation should only be made as a last resort where a violation of a protected fundamental human right has been identified on the facts of an individual case and the only way of preventing or removing the violation is to require a change in the primary legislation which cannot otherwise be construed so as to achieve compatibility.
However, the judgment, given by Lord Leggatt, also emphasises the possibility that on rare occasions a court make make a DoI, even where no violation on individual facts has been established, on the basis that if the facts of the case before the court were different the primary legislation in question would give rise to an incompatibility.
As the judgment notes, such a situation arose in R (Bibi) v Secretary of State for the Home Department [2015] UKSC 68, though not, in that case, in relation to primary legislation but in relation to guidance and policy which the Supreme Court decided was likely in a significant number of cases to lead to a breach of the right to respect for private and family life under Article 8 of the European Convention of Human Rights. Since it was desirable for the court to make this clear, the court so stated in its judgment and final order in that case.
In Buray and De Souza, the Court of Appeal had held that section 37(3) of the 2021 Revision of the Immigration (Transition) Act (‘the Immigration Act’), which provides that permanent residence is only to be granted to applicants attaining a specified number of points under criteria set out in a points system, is incompatible with section 9 of the Bill of Rights, Freedoms and Responsibilities contained in Schedule 2 to the Cayman Islands Constitution Order 2009, which protects the right of every person to private and family life. The Court’s reasoning was that there was no provision in primary legislation which allowed for exceptional cases to be considered outside the rigidities of the points system. It dismissed the A-G’s suggestion that section 53(1)(b) of the Immigration Act confers a power on the Cabinet to grant various exemptions which could adequately protect such exceptional cases. It did so largely on the basis that there was no evidence of how this process work might work in practice.
On the A-G’s appeal, the Privy Council held that the Court of Appeal had been wrong to declare section 37(3) to be incompatible with section 9 of the Bill of Rights because, generally speaking, courts should not make a DoI on a hypothetical basis where a violation of fundamental rights had not been established in the actual case before the court: Mr Buray and Mr De Souza were two single men who had failed in their individual cases in the Court of Appeal to establish a violation of private of family life by the refusal to grant permanent residence. Whilst this conclusion was enough to determine the appeal in the A-G’s favour, the Privy Council further held (in comments which were, strictly speaking, obiter) that the legislation as a whole was capable of working to avoid any incompatibility given the existence of section 53(1)(b). Whether or not the operation of that legislative scheme actually avoids incompatible results in practice depends on the evidence in a case where the facts also demonstrate a breach of fundamental rights.
The A-G had sought to adduce fresh evidence in the Privy Council of how the system might work more generally. Some of that evidence referred to new processes that had been introduced since the Court of Appeal’s judgment, no doubt in an attempt to make the system work better and compatibly with human rights in practice. In response to the A-G’s evidence, and in the absence of the claimants who understandably took no part in the A-G’s appeal, the intervener, who had been permitted to intervene to assist the Privy Council with such opposing arguments as an intervener can make on appeal, submitted evidence to show the system was nevertheless deficient in its practical operation. But, as none of the new evidence from either side could affect the claimants, the Privy Council declined to consider any of it.
In Bibi the Supreme Court had permitted all parties to submit up-to-date evidence and its judgment and final order had stated that in a significant number of cases the Home Office’s guidance on the English language requirement would give rise to a breach of Article 8. However, in relation to the Cayman Islands’ system for permanent residence, the assessment of whether the section 53(1)(b) and related processes work in practice compatibly with fundamental rights will have to await another day to be decided in a case where the issue arises on the facts.
Manjit S. Gill KC appeared with Alastair David for the intervener in Attorney-General of the Cayman Islands v Buray and De Souza (Hunter intervening). He also appeared for Bibi in R (Bibi) v Secretary of State for the Home Department. He has dealt with many other such cases considering, at the highest levels, the compatibility of provisions or policies with constitutional and fundamental human rights in divers fields such as terrorism, crime, extradition, immigration, child rights, welfare benefits, discrimination and regulatory regimes.
LINK TO THE JUDGMENT
