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15/10/2018 | hsmoffice

Litigation Attorney Joins HSM Group

The HSM Group is thrilled to welcome Senior Associate, Adam Crane. Adam’s practice focuses primarily on areas of commercial litigation, insolvency, restructuring and financial recovery matters. Adam joins HSM with over seven years of experience in commercial litigation, insolvency, restructuring Read more +

12/10/2018 | hsmoffice

Less “Ghost Caymanians” in the Future?

Partner and Immigration Expert, Nick Joseph explores The Immigration (Amendment) Law, 2018  (“the Amendment Law”) that came into effect on 13 August 2018, and with it, new opportunities potentially present themselves for various categories of people in the Cayman Islands Read more +

21/09/2018 | hsmoffice

HSM Inspires Students at CIFEC’s 2018 Career Fair

HSM is thrilled to have once again participated in the annual Cayman Islands Further Education Centre (CIFEC) Career Fair, which took place on 21 September 2018. The fair allows the opportunity for students to present their résumé and learn more Read more +

12/09/2018 | hsmoffice

HSM Adds Family Law to its Suite of Legal Services

The HSM Group is now promoting the addition of Family Law to its suite of legal services. Led by Senior Associate Kerrie Cox, the matrimonial team will cover all aspects of divorce and finance, in addition to private/public child law. Read more +

Less "Ghost Caymanians" in the Future?

Partner and Immigration Expert, Nick Joseph explores The Immigration (Amendment) Law, 2018  (“the Amendment Law”) that came into effect on 13 August 2018, and with it, new opportunities potentially present themselves for various categories of people in the Cayman Islands to obtain the Right to be Caymanian. This article explores two such changes.

  1. Non-Caymanians who were born in the Cayman Islands between 27 March, 1977 and 1 January, 1983; who a British Overseas territories Citizens (“BOTC”) by virtue of their birth in the Islands; and have resided here since birth.

A frequently held misconception is that if you hold a Cayman Islands passport you are Caymanian.  Many Caymanians have Cayman Islands Passports, however, many do not. Those who do not hold a Cayman Islands passport are no less Caymanian than those who do hold one. Equally, many holders of Cayman Islands Passports are not Caymanian and are only in the Cayman Islands as a result of having a different type of permission to remain, i.e. Permanent Residence. There are however those people who have Cayman Islands passports (and have been British Overseas Citizens of the Cayman Islands since birth) but have no right to be in the Cayman Islands. It is for some of these people that the Law is intended to provide remedy.

Since these individuals have held Cayman Islands passports since birth and have often lived nowhere else, they often considered themselves to be Caymanian and the wider society has often treated them as Caymanian even though they are not.  Prior to the recent change in the Law, the Law had provided that in order for these individuals to become Caymanian on the basis of their birth in the Islands to non-Caymanian parents in the period between 27 March, 1977 and 1 January, 1983, they had to make an application to the Chief Immigration Officer prior to 21 December 2007 for the grant of Caymanian status.

As the development of the Islands has continued, it has become apparent that a number of persons in this category had failed to make application within the prescribed timeframe and had accordingly “fallen through the cracks.” Short of a Cabinet status grant or becoming Caymanian through marriage to a Caymanian, there was no mechanism available for these individuals to acquire status. The immigration authorities in particular, in exercising their border control function, did not seem to take note of these non-Caymanians as they have been travelling on Cayman Islands Passports. The issue seems to have largely become apparent when private sector employers, exercising the required diligence to ensure they were not employing non-Caymanians without appropriate permissions, determined certain persons were not in fact Caymanian. Both employment and being employed without immigration permission are strict liability offences under the Immigration Law. It is no defence to say “I thought they were Caymanian” or indeed for a non-Caymanian in employment without immigration permission to say “I thought I was Caymanian.”

Accordingly, these individuals are one category (there are several, including another referenced below) of what have become referred to as “Ghost Caymanians” (persons who think they are Caymanian, and/or otherwise are treated as being Caymanian, but in fact and in law, are not).

The Cayman Islands Government should be congratulated for providing a mechanism for such persons who may have previously missed the window to apply to become Caymanian, to do so now, by removing the deadline, previously written into the law, by which they had to have applied.

In order to now satisfy the requirements of the law the individual must satisfy the Chief Immigration Officer that they were born in the Islands between the relevant dates, are a BOTC on the basis of their birth in the Islands (whether or not they actually hold (or have ever held) a Cayman passport is not relevant, although most will), and have resided here since birth (absences for education and medical care are excused).

Absent “exceptional circumstances” the Chief Immigration Officer is required to grant the applications.

No form appears to have yet been generated for the making of these applications, and no fees appear to be prescribed by the regulations.

There is no known guidance or directions as to what may constitute “exceptional circumstances.” It however appears clear that the nature of the residence in the Islands since birth need not have been “lawful” in order for the requirement to be satisfied. Breaches of the Immigration Law would therefore seem not to be enough for the Chief Immigration Officer to deny an application.

It should be noted that the youngest of such prospective applicants is now approaching 35 years’ old. Many will have established families, businesses, and have worked in the Islands (unlawfully, and without a work permit) for many years.  Making the required application will necessarily result in an admission to the very authority charged with enforcing the law, that the applicant is not presently (and never has been) a Caymanian. Serious consequences could potentially therefore follow for themselves and their family members. For example, if they are currently employed without a work permit, the employer (if they become aware) could terminate the employment of that individual, and the individual themselves and/or their employer may be liable to the Department of Immigration for significant unpaid work permit fees. If the persons have been erroneously allowed to register to vote during a period while they were not Caymanian, consequences would seem inevitably to have to follow vis-a-vis the Elections Office, and should the persons hold Trade and Business Licences (particularly with no Caymanian participation) the Department of Commerce and Industry would seem compelled to take note.

It is unclear what mechanisms the Government and Department of Immigration have or propose to implement to deal with these potential “fall out” issues and unfortunately they were not addressed in the Amendment Law. It is hoped that a pragmatic approach will be taken and all consequential issues arising from a successful application are addressed (without any adverse effects) at the same time Caymanian Status is granted to the applicant. That being said, the relevant authorities do not appear to have been given the required statutory authority they need to take such an approach. If they act without power there is a risk that the steps taken are illegal and void or voidable, despite their intent to act fairly and reasonably when tackling the “fall out” issues.

It is also unclear as to what the Government proposes to do should persons not make the available application and accordingly “choose” to continue as “Ghosts.” Requiring persons to regularise themselves or face serious consequence (“Ghostbusting”) does not seem to be an imminent prospect and therefore the current situation could conceivably continue.

  1. Persons who were Caymanian by Entitlement as children but who have failed to apply for continuation following its automatic loss on their 18th birthday prior to reaching the age of 24;

Persons who are Caymanian by Entitlement, contrary to popular misconception, are not “born Caymanians”. Rather persons who are Caymanian by Entitlement fall into a distinct category in that they are persons who, in the Determination of the Chief Immigration Officer, are the (non-Caymanian) child of a Caymanian, are under the age of 18, and who have been legally and ordinarily resident in the Islands for a minimum period of 12 months’. There are fees payable and prescribed forms for the making of such applications.

Generally speaking, persons who are “born Caymanian” will be born (whether in or outside of Cayman presently makes no difference) on a date when a parent is Caymanian and settled in the Islands. The Immigration Law defines them as persons who are Caymanian as of Right and no application need be made in order for them to become Caymanian (although acknowledgement applications are strongly recommended so that such persons can for all purposes freely demonstrate that they are Caymanian).

Caymanians by Entitlement will therefore (generally, although not exclusively) be children whose parents became Caymanian after they were born. The right to be Caymanian held by such children can be revoked

at any time prior to their reaching the age of 18 if they cease to be legally and ordinarily resident in the Islands at any time after reaching the age of 11. In any event, all persons who are Caymanian by Entitlement lose that status (and cease to be Caymanian) automatically on their 18th birthday.

Section 22(9) of the Immigration Law however has always provided a mechanism for them to continue to be Caymanian. That section always provided that anyone who is Caymanian by Entitlement can, after their 17th birthday, apply for “continuation.” They must simply demonstrate that they are (or if over 18, were) Caymanian by Entitlement, and to have been legally and ordinarily resident for at least five of the seven years’ immediately preceding the date of application.

The section goes on to provide that absent compelling reasons the Board shall grant any application made by a qualified applicant and that the grant would take effect on the applicant’s 18th birthday (if they applied when they were 17+) or upon the date of grant if the application was made after the age of 18 (and therefore on a day when the person was already not Caymanian).

In any event, before 13 August 2018, any application had to be made prior to the applicant turning 24. The Amendment Law simply removed that restriction. The applications can now be made at any time after a person who is (or was having lost it at 18) Caymanian by Entitlement and over the age of 17.

An application form exists for the purpose of making applications of this nature. The application fee is CI$250; with an additional CI$1,000 due on grant.

Many persons appear to have failed to apply for any continuation of their status. They were no longer Caymanian but did not necessarily know or understand this to be the case. Accordingly they formed a new category of Ghost Caymanian, and appear to exist in substantial number. This change in the Immigration Law allows this category of Ghost Caymanians to seek to once again become Caymanian.

They have most often been treated as being Caymanian with their true immigration status only identified by scrupulous HR Departments, the Department of Immigration processing applications for their children or spouses to be Caymanian on the basis of their relationship to them, or (for example) a relevant Government Department processing a request by them to be excused stamp duty as a first time Caymanian buyer of qualifying real estate.

When the issue was first brought to the attention of such persons, they were not able to rectify their position if they were already 24. The removal of that restriction in principle removes the barrier to application but without any additional amendments to the legislation, the writer doubts that many, if any, will be eligible to become Caymanian again on this basis, without them first obtaining and holding (for an extended period) lawful permission to be in the Cayman Islands.

The fundamental issue is that these Ghost Caymanians must be able to demonstrate that they have been legally and ordinarily resident in the Cayman Islands for five out of the seven years’ prior to making the application.  Unlike the other amendment described above, mere residence is not enough. For the Residence to have been “Legal and Ordinary” as required, any individual seeking to take advantage of this section will need to have held a formal immigration permission for at least 5 years’ of the 7 years’ before their application.

If they are over 24 (and have remained resident since childhood) then in most instances their residence will have been unlawful since they ceased to be Caymanian at 18.   It may not be possible to qualify in the near term, and the persons who this change purports to seek to assist may have to seek and hold alternative immigration permissions (work permits (notwithstanding apparent term limit barriers), student visas, or Governor/Cabinet permissions under sections 40 or 63 of the Immigration Law), for at least 5 years’.

These issues exist as barriers quite aside from the effects of the breaches of the Immigration Law (and potentially other Laws) that necessarily arise when a Ghost Caymanian raises their head above any proverbial parapet, in making an application.

Even then there will continue to be issues for other categories of Ghost Caymanian including most numerously those who seem never to have been the subject of formal applications to become Caymanian by Entitlement (impossible after reaching the age of 18) and yet have lived here since early childhood, have Caymanian parents, and know no other home.

Conclusion

Unless and until the authorities provide clarity on these issues (and potentially necessary but straightforward further legislative amendment is forthcoming) caution may need to be exercised by persons seeking to take advantage of these changes. A clear statement of amnesty for past and present transgressions by persons qualified to make these applications would be particularly welcomed, as would a direction from Cabinet (exercising its power under s. 63 of the Immigration Law) that any person who has resided in the Cayman Islands since any automatic loss of their status on their 18th birthday be deemed to have been Legally and Ordinarily resident in the intervening period prior to making an application for continuation under s. 22(9). Further legislative intervention in any event appears necessary to provide solutions for other categories of “Ghost”.