Category Archives: HSM LAW

HSM’s award-winning immigration team has been recognised with a gold medal by the Best of Cayman Islands 2023.

The team handles everything from work permit applications to the right to be Caymanian to permanent residency and everything in between, including relocation assistance, registration as a British Overseas Territory Citizen and passport applications.

Should a matter become contentious, HSM’s Senior Associate Alastair David can assist. Alastair’s work has made headlines over the past year including an immigration issue where his client, a domestic violence victim won the right to fight to stay in Cayman and another case where the Court of Appeal declared that the Immigration Act is incompatible with section 9 of the Bill of Rights, which deals with family and private life.

As a full-service law firm, HSM can also assist with ancillary services such as employment, property guidance, litigation and can provide corporate support under HSM Corporate Services Ltd. Clients appreciate that they can handle their legal needs in one place.

The Best of Cayman Islands 2023 is a vote-based contest and nominations are provided by the community.

HSM is thrilled to be featured and thanks the public as well as clients for their votes. This recognition is a testament to HSM’s high-quality immigration support in the Cayman Islands.

Immigration Law Best of Cayman 2023

A longstanding issue is the simple question of “who is a Caymanian?” With many different options and processes for achieving (and maintaining) Caymanian status, widespread confusion has caused whole aspects of the Immigration (Transition) Act (and other laws in the Cayman Islands) to be almost incapable of proper application. This is not a new issue and was not created by the present Government, or the present Department of Workforce Opportunities & Residency Cayman (WORC). The solution however lies in their hands.

The sad reality is that the performance of any Department of Government that needs to act or make determinations based on whether or not someone is in fact a Caymanian can be made impossible by the simple fact that when it comes to a number of persons in our community, the Cayman Islands Government and wider society does not appear to exercise a clear and consistent policy as to who is Caymanian. There are plenty of people who look to the public and authorities like they are a Caymanian (they may even have a Cayman Islands Passport, and/or been born here) but nevertheless, they are clearly and emphatically, as a matter of Law, not Caymanian.

These “non-Caymanian Caymanians” seem (in our longstanding experience) to fall into a number of categories – and are now widely referred to as “Ghosts.”

Many “Ghosts” are created (sometimes by accident) through a failure by a person who became Caymanian “by entitlement” to apply for “continuation” of their status on turning 18. A new category of “Ghost” appears to have been inadvertently created where a young person applies for (but does not receive confirmation of) the continuation of their status until after their 18th birthday. These “Ghosts” are perhaps best known as Schrödinger’s Caymanians.

You may have heard of “Schrödinger’s Cat” – which has made it into aspects of mainstream culture. In 1935 Austrian Physicist Erwin Schrödinger postulated that according to quantum mechanics, a cat locked in a sealed box and subjected to a 50% chance of a radioactive isotope causing a release of deadly poison, could be simultaneously alive and dead. The actual state of the cat cannot be determined until the box is opened and the cat actually observed. At that point quantum supposition is replaced by reality, and the cat is observed to be either dead or alive.

Until the opening of the box, the paradox confirms the cat is BOTH dead and alive.

Almost a century later we appear to have been able to re-create Schrödinger’s thought experiment, although this time it has been taken beyond theory and can be seen in active operation. Rather than using imaginary cats, The Immigration (Transition) Act uses real people. The box is replaced with an envelope, and there is no need for radiation or poison.

Feline Friends need not be concerned.

Section 26(10) of the Immigration (Transition) Act (2022 Revision) provides an opportunity for anyone who will automatically cease to be Caymanian on their 18th birthday (i.e. everyone who has become Caymanian “by entitlement”) to apply for continuation of their status. They cannot make application before they are 17 years old. To succeed in any application and to accordingly continue to be Caymanian after turning 18, they have to demonstrate that they have been legally and ordinarily resident for at least 5 of the 7 years immediately preceding the date of their application and, that they are of good character.

If an applicant applies while they are 17, and is later confirmed to in fact continue to be Caymanian, they will be deemed (although after the fact) to have been Caymanian since their 18th birthday. If however they have turned 18 before they apply for “continuation”, then the Act confirms that they will only be Caymanian (again) from the date of the grant of “continuation”.

Since in either case the prospective Caymanian will have automatically ceased to be Caymanian on their 18th birthday, an interesting result occurs where someone applies for “continuation” before they are 18 but their application is not granted by their birthday. Applying Schrödinger’s thinking, this circumstance seemingly creates quantum superposition for long enough to be observed and recorded. In the period from the applicant’s 18th birthday until the envelope (or email) from the Department of WORC confirming an applicant’s status is opened the applicant is not (and has not been) Caymanian, unless the letter from the Department of WORC confirms that the applicant is (and has been) Caymanian. Only opening the envelope and looking inside will confirm the applicant’s status. Until then it would seem a qualified applicant must be assumed to be both Caymanian AND not Caymanian, at the same time.

That is as far as quantum mechanics can take us. Neither it nor the Act inform us or applicants whether they can or cannot be employed, travel to or remain within the Cayman Islands while they are awaiting confirmation. Can they work without a work permit (or is it with AND without a work permit, and is it with AND without their employer paying a fee)?

And how about their scholarship application, or ability to register to vote?

This has been brought to the attention of the relevant authorities for a decade. Unfortunately no meaningful steps appear to have been taken to resolve these issues. The implications of potentially large numbers of expatriates being treated as Caymanian when they are not, risks creating ripples well beyond the Department of WORC.

It can only be hoped that those responsible can work together and fix it. Until they do, employers and regulators may need to be particularly cautious to ensure that those they are employing or regulating, are, and remain, what they were, and are, perceived to be.

The HSM Group is delighted to once again offer their summer internship programme and has welcomed seven students from the Cayman Islands Further Education Centre (CIFEC).

Nathaniel Scott, Jenae Whittaker, Janely Reeves, Phyllis Brown, Jamila Andrade, Kayleigh Bush and Courtney Reid have joined the HSM team for the summer. As a full-service law firm in the Cayman Islands, HSM provides interns with a variety of experiences including Corporate Services, Debt Collection, Compliance, Intellectual Property and more.

HSM’s 2023 summer internship programme takes place July through August and falls shortly after an 8-month long work experience stint with the CIFEC internship programme.

“We feel privileged to be a part of their career journey,” shares HSM Managing Partner, Huw Moses OBE. “HSM’s summer internship programme challenges the students to harness what they have learned over the past several months and make meaningful contributions to the firm. They are treated like coworkers, not interns”.

HSM is an avid supporter of the CIFEC programme and will be participating at CIFEC’s annual career fair in September. HSM has supported the CIFEC programme since they opened their doors in 2012 and employs four CIFEC graduates full-time.

Huw Moses (HSM Managing Partner) seated in front of HSM interns. (L-R): Nathaniel Scott, Phyllis Brown, Kayleigh Bush, Jenae Whittaker, Jamila Andrade, Janely Reeves and Courtney Reid

The HSM Group is thrilled to welcome Kathy Macdonald to their full-service law firm in the Cayman Islands. Kathy is an associate specialising in corporate and commercial law.

In her role at HSM, Kathy will guide clients as to the best corporate vehicle for their needs including exempted companies, limited liability companies, segregated portfolio companies, trusts, partnerships and more.

Kathy has over nine years of legal experience and prior to joining HSM, she worked for another Cayman Islands law firm. Kathy has also worked as Legal Counsel for two reputable financial institutions and provided transaction and regulatory advice as well as support to the businesses for core custody, depositary and administration services.

She is well-versed in preparing documents such as board resolutions, de-registration and/or voluntary liquidation of regulated entities with the Cayman Islands Monetary Authority and Registrar of Companies. Regulatory matters are her specialty with an emphasis on Anti-Money Laundering (AML), The Foreign Account Tax Compliance Act (FATCA) and the Common Reporting Standard (CRS) and/or beneficial ownership.

Kathy studied at the Law Society of Ireland. She is also an accredited mediator and received this accolade in June 2014 from the Mediator Institute of Ireland.

“With the addition of Kathy, HSM continues its position as a go-to legal partner for those seeking comprehensive corporate support,” shares HSM Managing Partner, Huw Moses OBE. “We are excited to welcome her to our team and for our clients to benefit from her impressive legal counsel.”

Kathy in front of HSM’s building on 68 Fort Street, George Town

The Department of Lands and Survey is temporarily waiving the $50 application fee to update and rectify land register information until the end of July 2023. It is important to update your contact details on the Cayman Land Register to ensure you are notified with regard to planning applications.

This waiver was approved by cabinet in light of the 50th anniversary of the Department of Lands and Survey.

If you would like more information or assistance, please reach out to Linda DaCosta (HSM Property Partner).

HSM Chambers are delighted to see that the requirement for various expatriates to have and provide proof to the Department of WORC of undertaking a vaccine course to prevent / suppress COVID-19 (SARS-CoV-2), before being granted an Immigration permission has been withdrawn effective as of 7 June 2023.

On 22 May 2023, HSM Chambers put the Department of WORC on notice that unless HSM Chambers were provided with confirmation, within 14 days, that the mandate would be withdrawn, we were instructed by a client to challenge that mandate and the legality of it. The challenge to the mandate would be predicated on the basis that it breached our client’s Section 9 Rights as protected by the Bill of Rights.

HSM Chambers were clear in our client’s position that as of 1 May 2023 when the World Health Organisation declared the global emergency over, the requirement to be vaccinated to obtain an Immigration permission could no longer be justified (if it ever could) due to the fact that:

  • Tourists could and had been staying in the Cayman Islands unvaccinated.
  • The terms of the mandate were unequal in that it did not apply to all expatriate workers nor Caymanians.

On 6 June 2023, HSM Chambers were notified that:

  1. The requirement to be vaccinated against SARS-CoV-2 would be lifted.
  2. That it was not accepted that the mandate amounted to a breach of the Bill of Rights.
  3. That consideration was being given to the lifting of the vaccine requirement prior to the receipt of our letter.

Hopefully, such drastic measures will not have to be reintroduced again. However, in the event that they are, it is hoped that any mandate is reasonable, proportionate and applies equally to all residents and persons seeking to enter the Cayman Islands.

For many years persons seeking to obtain Permanent Residence in the Cayman Islands have taken a History and Culture Test. It started as a mechanism to attempt to measure a person’s assimilation into the Caymanian community. Being able to hum a verse of “Munzie Boat” and understanding that “Soldiers” wear shells not uniforms could get you part of the way there. No one had to study anything. Aspiring permanent members of our community simply lived it, and it was good.

Of course, the winds of change wreaked havoc on the boat in the Sound. All in the name (or in consequence) of progress, we crushed the Soldiers under our cars (to the extent we did not smash them for bait) and collected their homes as trinkets off the beach. At the same time, the Barcadere became the Cove, Dolphin became Mahi Mahi, Weeping Willows became Casuarinas and the Sea became the Ocean. Cocoplum went from being a fruit, to an address. Even our spelling is now changing, as has (seemingly) our ability to freely access and enjoy the coastline. It has all fundamentally happened in as little as 30 years. The pace of change (some call it progress) is accelerating.

The lyrics came true. At least in Grand Cayman it appears that “all the Soldiers are dead boys, all the Soldiers are dead”.

It used to be that Caymanian culture was learned enjoying a good rundown with friends, all the better if washed down with swanky. In that setting, on a moonlit porch, expatriates could learn of Christmas Breezes, Men of Iron in Wooden Ships, Smoke Pots and National Bulk Carriers. In moments of silence they could ponder the similarities between Wompas and Flip Flops, and the differences between types of Breadkind, as well as distinguish between Squabs and Prop Props.

Those days have passed.

Many people yearn for those simpler times, and the relative cohesiveness of the community. The legislation we operate under (first drafted in 1971) has always enshrined focus (whether agreed upon by those administering it or not) on “cushioning” the Caymanian way of life against the impact of inevitable change. Indeed, the Permanent Residence Points System, prescribed by the Cabinet, emphatically states that “an applicant’s integration into the Caymanian society will be measured by reference to his (sic) knowledge of local history, tradition, customs and current events.”

Despite the inherent legal (and political) expectations, the Permanent Residence history and culture test has (in reality) little to do with actual integration into the Caymanian society. It is a test of knowledge (or at least recollection). Reading books is good, and will help, but ultimately, and several years ago, the government decided to provide a course. The course has been spectacularly successful. Attendees seem to do extremely well on the test, sometimes scoring 100%. Unfortunately, often due to work or family commitments, not everyone can attend the course or spend the CI$200 required to participate.

Never mind, there has been even more progress. It appears that most of the questions (and answers) are freely available on an App, and otherwise in wide circulation. Some now accordingly suggest there is now no need for any prospective Permanent Resident to spend any time on a porch, read any history books, or attend a course.

Still, we accept, however they may be learned, it is better the facts be known, than not.

Incredibly (although not the fault of the initial authors of the test), some of the facts on which people are assessed, have not been consistently factual. The issue has been known (and attempts made to have it addressed have been ongoing) for a decade. Asking a PR applicant who the Minister of Tourism is, but failing to provide that Minister’s name amongst the options for the multiple choice response (thus making the question impossible to correctly answer) is not a good look – especially if such a thing were to happen multiple times (and seemingly for years) even following concerns being raised.

Some facts are important for people to understand who we are and where we come from. The Treaty of Madrid, Captain Pack and Long Celia are all highly relevant, and important (hey, Bodden Town, shouldn’t we get her a statue?). On the other hand, and although I am a fan of them all, it appears to me that Steel Pans, Jerk Chicken, and Batabano ought not be a focus on integrating expatriates (although recognition that these things are traditionally no more Caymanian than the internet or rum and coke, probably should be).

Let there be no doubt. Choosing who can and should gain and maintain the privilege of being a settled resident of these Islands should be firmly in the hands of the Caymanian people applying appropriate and transparent standards. That prospective permanent residents be asked to evidence their particular contribution, participation, and commitment is not offensive. The interests of these Islands and their people must be paramount.

However, the system (and every material aspect of it) must be fair and rational. The Constitution requires it, and our forefathers would expect no less.

The reality is, if we fail to treat people fairly, the Constitution will ultimately deprive the Caymanian people (through the actions of their elected representatives) of the right to determine who can stay, and (quite properly) hand that determination to the Courts.

The easy answer, of course, if we wish to avoid that, is to ensure our systems (however strict we wish them to be) treat everyone fairly.

Perhaps someone might (in furtherance of maintaining their prescriptive right albeit in polite disregard of any inappropriately located no trespassing sign), peaceably sit in the shade of a grape tree, stare at the sea, and contemplate that possibility. It is not too late.

On 30 March 2023, The Court of Appeal declared that Section 37 (3) Immigration (Transition) Act (2022 Revision) is incompatible with the constitution namely Section 9 of the Bill of Rights, which provides rights to family life and/or private life to residents in the Cayman Islands.

The relevant subsection of the Act, which the Court of Appeal has held is incompatible with Section 9 of the Bill of Rights is:

“(3) In considering an application for permanent residence under subsection (1), the Board or the Director of WORC upon applying the criteria set out in the points system shall only grant permanent residence to all applicants attaining one hundred and ten points or more.”

In the case of D’Souza & Buray, the appellants failed to obtain the required 110 points under the Points System to be granted permanent residency (PR). They appealed on the basis that this infringed their rights to a private life based on their individual circumstances.

This declaration of incompatibility will present immediate difficulty in the processing of PR applications, at least those where applicants are assessed to have less than 110 points. Up until now those individuals who did not achieve 110 points under the Points System and had no other way of remaining in the Cayman Islands were required to leave the Islands for at least 1 year.

The Cayman Islands Government will now need to act to amend the aforementioned Section 37 in order to make it compatible with the Bill of Rights and at the same time provide a revised legal framework for the consideration of pending and future PR applications so that an applicant’s Constitutional Rights can be considered.

It is difficult to know how the Government will react, but it is earnestly hoped that applicants who have achieved 110 points will have their applications progressed to a grant in any event. This is a particular concern when applications in some cases have been pending for more than a year. At the current time, applications for PR pursuant to the Points System are taking up 15 months to be concluded and it appears that the Caymanian Status and Permanent Residency Board are still not considering them.

Currently, it is understood that a Committee chaired by Mr. Steve McField, a well-known and experienced attorney, is looking at the Points System and no doubt this decision will be at the forefront of their minds when they make recommendations to Cabinet. This however is not the first similar committee in recent times and none of the previous committees/reports have led to the aforementioned sections or similar ones being amended so as to make them compatible with the Bill of Rights.

Alastair David appeared on behalf of the appellants and is a Senior Associate from HSM Chambers. Commenting on the Judgment, he shares “While it is gratifying to see that the Court of Appeal agree with our submissions that the current law is incompatible with the Bill of Rights, this has been something which HSM Chambers has been raising concerns with for over six years.”

In regards to the overall effect of the Judgment, Mr. David said “This Judgment should not be viewed as meaning that all expatriates will be able to obtain Permanent Residence in the Cayman Islands. Subject to any legislation change, I envisage it will mean that there will be an increase in numbers of expatriates who can stay past their notional roll over date on the basis of their strong family life or private life connections which they have established in the Cayman Islands.”

The HSM Group is delighted to announce the promotion of two lawyers, Hilary Brooks and Alastair David, to the position of Senior Associate within its Cayman Islands law firm.

Hilary specialises in employment and private client law. Hilary has exclusively practiced in the Cayman Islands since 2012 and has been a Notary Public since 2008. She is the go-to guru for all matters relating to employment law, including employment contracts and policy manuals as well as advice on workplace disputes. She also has experience in preparing wills, codicils and estate administration. In addition, Hilary teaches several legal courses each year with the Cayman Islands Chamber of Commerce and Cayman Islands Society of Human Resource Professionals.

Alastair has specialised in immigration and employment law in the Cayman Islands since his arrival here in 2016. Alastair advises on all aspects of those laws with a specific focus on contentious matters. Alastair has represented clients before the Labour Tribunal and Labour Appeals Tribunal in respects to employment issues and has represented clients before the Summary Court, Grand Court and Court of Appeal in regards to immigration matters in the Cayman Islands. Prior to joining HSM, Alastair practiced as a Barrister in the UK for 10 years.

Both are outstanding lawyers and have been with HSM for more than five years.

“These promotions reflect their dedication and proven track record of delivering results to our clients,” shares HSM Managing Partner, Huw Moses OBE. “I look forward to their continued success as valuable members of the HSM team.”

As at 16 January 2023, 34,067 foreign nationals are recorded by the Department of WORC as having a work permit (or Government contract) in the Cayman Islands. HSM’s Immigration team have reviewed these statistics and the team notes that this number is not only the highest we have seen (for those watching, up from 32,913 on 17 October 2022) but has some striking implications – beyond the fact that we have been adding (on average) an additional dozen foreign workers a day, every day, for the last 3 months.

There are now 135 different nationalities recorded amongst us. That is a number we can and should be proud of. Jamaicans continue to be the most numerous, followed by Filipinos, Brits and Indians.

If these figures are relied on by the authorities in their consideration of PR applications, the increase in the Indian population means that persons of that demographic may now face a loss of 5 points on the basis that their number appears to today constitute more than 5% of the population on work permits.

The detail of the top 12 nationalities on “work permits” is:

Jamaica 14,586 42.8%
Philippines 5,284 15.5%
UK 1,983 5.8%
India 1,899 5.5%
Honduras 1,234 3.6%
Canada 1,218 3.6%
USA 930 2.7%
Nicaragua 706 2.1%
Nepal 627 1.8%
South Africa 626 1.8%
Ireland 402 1.2%
Guyana 310 0.9%

The maths (or math for those with a North American lilt) is not as easy as it may seem. Policies relating to treatment and interpretation long requested of the authorities (on this and a great multitude of other issues), have never been provided. There are many consequences of this and the resulting uncertainties and potential arbitrariness.

The Permanent Residence Points System is supposed to reward “rare” nationalities by awarding more points – and inherently penalize those that appear “overrepresented” in our community. The noble (and lawful) intention is that no foreign culture be permitted to overwhelm (or otherwise dominate) the Caymanian people and these Islands, and that an “appropriate demographic balance” be maintained (both in society and in each private sector workplace – although the Civil Service appears exempt from such considerations (up to the point of an individual Civil Servant applying for PR) given the fact that the Department of WORC plays no role in Civil Service hiring decisions).

The Points System makes it clear that 10 points are awarded to those applicants for Permanent Residence who are representative of a demographic of origin which is less than 5% of work permits in the Cayman Islands, whereas 5 points are available to those who are represented by more than 5% but less than 10% of the population on work permits, and no points are available (in the category of demographics) to those who are of a demographic of origin which is represented by more than 10% of the population on work permits.

Of the many details we have sought for most of a decade is the question of whether it is the population on date of application, the date of the 8th anniversary of applicant’s arrival as a resident, or date of consideration of their application, that is the basis of the treatment of applicants under the demographics section of the Points System. We have never received clear guidance. Nor is there any indication of what happens when an application is delayed in its consideration by so long, through no fault of an applicant, that the statistics materially change in a manner adverse to an applicant. Denying an Indian national PR because of a delay in the processing of their application (now averaging 17 months) is not a good look. It also would appear unlawful, and unlikely to survive legal challenge.

There is another issue to contemplate. What do the authorities contend is a work permit for the purposes of their calculations? Those on Government Contracts (1,130) or with Permission to Continue Working (668), or Working by Operation of Law (33), are very arguably not work permit holders – yet they are reported in the statistics as if they are. Persons with Employment Rights Certificates (there are thousands) are not work permit holders and are NOT recorded in the referenced statistics at all. Adjusting the percentages to account for them is difficult, and ever changing.

An analysis that counts only those persons with work permits (as that term is defined by reference to the Immigration (Transition) Act) changes the percentages further. In fact, despite the above figures, the number of Indians on work permits exceeds the number of Brits on work permits given (for example) that 170 Brits are reported to be here on Government Contracts compared to only 48 Indian nationals.

The margins around the numbers of Brits given the rate at which their number (as a percentage of those on work permits) is diminishing, and risks becoming too vague to and uncertain for the authorities to be able to consistently paint within the lines. The system ought to be capable of working well, but delays, a historic failure and even refusal to provide needed clarity, deprive it of so much potential. Statistics are no longer reported quarterly. We do not know which ones the authorities use. It does however appear that Brits are on a trajectory to gain an extra 5 points on their PR applications.

There is no uncertainty in relation to the demographic points available to Jamaicans and Filipinos. Their number so greatly exceeds the 10% threshold that we have no expectation of persons from those countries achieving anything more than their current 0 points for demographics.

Any imminent uncertainty is not the fault of the government of today. The hand they now hold was dealt to them some time ago.

The committee appointed by the Hon. Deputy Premier to look into the Points System will doubtless have this issue in its sights.

Whatever happens next, the figures appear to help reveal many other things.

One, is Caymanians are in a minority. As at census day, 2021, there were reported to be 6,378 holders of Permanent Residence in the Islands. The overwhelming majority of them are still here, and with status applications now languishing for up to 12 months, many of those who have qualified to apply to become Caymanian, will still be Permanent Residence holders. Adding them to the work permit numbers makes the number of expatriates living in Cayman 40,445. Allowing for expatriate spouses, children, and other dependents, there are today somewhere around 50,000 foreign nationals living here.

With a tourism room capacity of 20,527 – at 75% occupancy there would be another 15,000 sleeping here. Add 10,000 cruise ship passengers and crew (there were more than 13,000 on one day in January 2023), snowbirds in their condos, and family and friends visiting from overseas, and a few hundred Cuban refugees, there are quite probably 75,000 non-Caymanians here on a high season busy cruise ship day.

According to the census there were 38,047 Caymanians. We are aware that a number of them are “ghosts” – persons perceived to be Caymanians but who in fact (and in law) are not. The number of Caymanians will now be around 40,000, but it is unlikely to be much more than that.

It seems there are now likely around 90,000 persons “living” here in the Cayman Islands.

We contend that we have a population of 80,000 (78,554 was the revised official estimate last summer). We appear erroneous in that conclusion. Whatever the number, right now, our infrastructure needs to cope with 110,000+ people who are actually here.

The rapid growth is at least creating a Demographic Dividend providing much government revenue and private sector economic activity. Let’s hope we invest these potential windfalls wisely. We need to find a mechanism to generate income that is not as reliant on unbridled population growth. It is unsustainable. We cannot grow, at this rate, forever. Nor will we.


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