UK Court Precedent Would Bankrupt Our DHS

By David North on August 8, 2016

Were a recent immigration-related ruling by Britain's Law Lords to apply to our Department of Homeland Security, it would bankrupt that agency.

You see, the Brit judges, in a case involving former British colony Antigua and Barbuda, said that if the islands' immigration agency did not make a decision about an alien's application in a period of 12 months, the agency owed monetary damages to the delayed alien. Given the long delays common to DHS, think what that would do to the Department's finances!

The Law Lords are known more formally as the Judicial Committee of the Privy Council. The judges, all from the UK, are usually are granted peerages upon their appointment to the nation's highest court. Then, as a side activity, they also hear cases arising from the United Kingdom's current colonies and certain former colonies, such as Antigua. Each of the islands has its own appeals tribunal, but a further appeal to Her Majesty, represented by the Law Lords, is possible.

After my tour of duty with the small office of the U.S. Department of Interior dealing with the U.S. islands (Samoa, U.S. Virgins, et al.) I became intrigued with the stately opinions of the Law Lords, always about islands, sometimes about crucial matters, such as the death penalty, and sometimes about minor subjects, such as land titles. It is an odd form of recreational reading, and practically never deals with immigration.

But Oliveira (Appellant) v The Attorney General (Respondent) (Antigua and Barbuda) was different. The Appellant, a native of Guyana, another former Brit colony, was married to a citizen of Antigua and filed for landed immigrant status (the equivalent of a U.S. green card), and nothing happened for 27 months.

The case had elements that should sound familiar to American readers; Oliveira, and his wife were of Indian descent, while most Antiguans descend from people from Africa, so there was an ethnic difference. Oliveira was, at least part of the time, in illegal immigration status, and had fought off a couple of rape charges, so he might be regarded as approaching the government with something less than clean hands. The bureaucracy moved with Caribbean casualness.

Five of the Law Lords constituted the panel hearing the case; they carefully listened to the opposing sets of lawyers, and in a comprehensive, 13-page opinion ruled, unanimously, that the small Antiguan immigration office should have handed down a decision (in a non-contested case) in no more than twelve months' time.

Oliveira was granted permanent resident alien status by the government, but argued that he had not been able to work legally while his application was being processed (or neglected) and thus the government owed him some money. So he appealed, not the government's decision, but its timing.

The Law Lords concluded, using language that probably dates back centuries: "For these reasons the Board [i.e., the Law Lords] will humbly advise Her Majesty that the appeal will be allowed..."

The Law Lords are, after all, not acting on their own, but as advisers to the Queen. (She always takes their advice.)

The text of their judgment can be seen here.