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15/02/2024 | hsmoffice

Chambers and Partners Features HSM Group in Global Legal Guide 2024

The HSM Group is pleased to be featured by Chambers & Partners in their 2024 Global Legal Guide. Our Intellectual property practice, HSM IP, has once again been ranked as a top tier law firm in their Global (Caribbean-Wide) Intellectual Read more +

19/01/2024 | hsmoffice

Legal Challenges and Potential Conflicts in Serving Both Insurance Companies and Insured Parties

In the myriad varieties of insurance claims, attorneys can find themselves walking a tightrope when representing both insurance companies and insured parties concurrently. While this dual representation often provides a practical and cost-effective solution, it introduces challenges that require meticulous Read more +

17/01/2024 | hsmoffice

HSM Enhances Immigration Team with Associate Gavin Dixon

The HSM Group has welcomed Gavin Dixon as an Associate for their immigration practice. Gavin is a seasoned legal professional with a distinguished career in public service. Gavin has held several positions with the Cayman Islands Government including 10 years Read more +

02/01/2024 | hsmoffice

New Year, New Articled Clerk at HSM

The HSM Group has announced Merary Eden as the recipient of their 2024-25 Article Clerkship Programme. Over the next 18 months, Merary will gain a variety of legal experiences across corporate, immigration, employment, private client, real estate, intellectual property and Read more +

Solid Foundations - A Sequel Article to Schrödinger’s Caymanians

A recent article extolling the real problems faced by many in demonstrating that they are in fact (and remain) Caymanian – and emphasizing that the law as written created some truly mind-bending scenarios – seems to have elicited significant comment and discussion. HSM Partner and Immigration Lawyer, Nick Joseph, continues the conversation and provides a solution.

Some of the commentary acknowledged what was said – and then raised the challenge: How do we fix it?

Fair enough. For fix it we must.

But solutions require us to understand the problem.

Speaking truth to power does not always work. At least not to begin with. Whether confronting an excessive fondness for rum, an abusive spouse, a dishonest preacher, or sea level rise, denial is usually the first solution that humanity reaches for. It is too often a necessary stage of the process on the road to redemption.

No matter what else we did, granting status in 2003 to thousands of largely unvetted (although frequently deserving) persons was always going to create cracks. Consistently pouring hundreds of new people into those cracks with a failing and (in many respects arbitrary and unlawfully operated) Permanent Residence scheme, effectively disregarding any question of assimilation, economic stability, or Caymanian Protection, and doing it year after year, was always going, like a freeze/thaw cycle familiar to those from colder climes, fracture the very foundation on which we all stand.

Fractured enough, the heartiest of bedrock will turn to gravel, then to sand – and thence ultimately, to dust.

The foundations – built by Mr. Benson, Captain Charles, Dr. Roy, Miss Sybil, significant numbers of Seafarers, the resilient women they left behind, (and topped off by an Arch or two (later accompanied by a Godfrey), and many others, were solid. They were a Rock. He hath founded it upon the seas and upon that Rock was modern Cayman built.

Like every society we are entitled to our own creation story. The persons named above (and hundreds of others, Caymanian and expatriate), constitute a critical part of ours.

“Caymanian” is the equivalent of a nationality. Strictly it is an immigration status and is not on any analysis, a citizenship. As described most eloquently by the late Mr. Benson Ebanks in presenting the Caymanian Protection Law to the (then) Legislative Assembly on 27 September, 1971 (in reference to the term “Caymanian”) …“… we are not really conferring a nationality on ourselves, this is impossible, we’re all citizens of the British Commonwealth that is the United Kingdom and Colonies and this is merely a label which will enable us to control certain activities within our own shores”.

Indeed – the legislation prescribed that to become Caymanian (i.e. to be granted Caymanian Status), you had to first be a British Subject. In Mr. Benson’s words “first and foremost a British Subject”. It made sense. We could hardly have had Caymanians singing God Save the Queen as our National Anthem – and not have them entitled to some passport or other issued by or on behalf of Her Majesty Queen Elizabeth. “British Subject” appeared capable of being interpreted widely – and incorporating any citizenship that owed allegiance to Her Majesty Queen Elizabeth. That was fine for Commonwealth Citizens, but of course meant that Americans could not become Caymanians – and since that was somewhat problematic for citizens of our largest trading partner (and source of tourists and cash to buy real-estate (and perhaps, pay real estate commissions)) we amended our Caymanian Protection Law in 1984 to allow Americans (and citizens of Ireland, any British Dependent Territory, Australia, The Bahamas, Barbados, Belize, Canada, Jamaica, New Zealand, and Trinidad and Tobago) to apply to become Caymanian.

This coincided (or at least followed shortly after) the UK tightening the rules around British Subjects – with the creation of the concept of British Citizenship occurring with the coming into force of the British Nationality Act on 1 January 1983. That Act confirmed six types of British Nationality – with British Citizenship being the only one granting an automatic right of abode in the United Kingdom.

For some years following, standard language in letters from the Department of Immigration confirming persons to be Caymanian, provided:

“If you hold or acquire a passport giving you nationality as a British Subject Citizen of the United Kingdom and Colonies or British Citizen of the British Dependent Territories you may have an endorsement placed therein indicating that you are also a person of Caymanian Status. The endorsement can be obtained by presenting your passport at this office together with this letter.

I regret to advise you that such an endorsement cannot be placed in the passports of other countries and if you wish to travel on a non-British passport it is suggested that for your convenience you carry this letter together with your passport to facilitate travel to and from the Cayman Islands.”

British Dependent Territories Citizenship was renamed British Overseas Territories Citizenship in 2002. Persons who were already British Dependent Territories Citizens on 21 May, 2002, automatically became BOTH British Overseas Territories Citizens AND British Citizens, on that date.

By the time of the 2003 (in)famous Cabinet status grants (to many clearly deserving and some clearly not) we lost track of the whole suggestion that you had to be any one of the six types of British Nationality (or what was formally described as an “eligible person”) to become Caymanian. No regard was had to the citizenship of the 2,850 direct recipients (nor does it seem, was appropriate regard given to a great many of their dependents).

The result was that thousands of persons became Caymanian, almost overnight, without anyone asking: are they (at some level) British? Many were not. The immediate consequence was that for the first time, many people who were not entitled to British Overseas Territory (Cayman) (or British) Passports, and in any event, owed no allegiance to the Queen, became Caymanian.

Sorry Mr. Benson.

History is history and it is often not good. Hindsight would prefer that we had approached the response to a period of mistreatment and failure to fairly consider applicants, differently. The Cabinet Status grants were mis-described as a necessary solution following years of an unlawful moratorium on the processing of status applications. They were NOT necessary. Alternatives existed, and in fact were used. The Gazette naming the Cabinet status recipients also reveals that the Caymanian Status and Permanent Residency Board granted status to some 102 other persons in the same period. It appears that one group were fully vetted whilst the other, frankly, were not. (Yes, I know hundreds lined up at the RCIP for their police records, but by then the deed had been done. The status’ had already been granted with no regard to what the RCIP knew (or said) about an individual).

The fact that so many became Caymanian without having some level of British Citizenship did not matter until election time – when it was realized that many hundreds of persons who had recently been made Caymanian could not register to vote. This is because the then Elections Law (by then) required almost all voters not born in Cayman to have BOT Citizenship (whether by connection to the Cayman Islands, or to anywhere else) to register.

Some of the newly minted Caymanians seeking to apply for Naturalisation to become BOTC’s by virtue of their “connection” with the Cayman Islands were being stymied in their attempts to be naturalised on the basis that they had not yet lived in Cayman for the prescribed 5 years, not been settled for at least 1 year, or (in some cases) had criminal records pre-dating their grant of status. I was the recipient of a number of frustrated calls. There was nothing I could do to help the callers (and did not hesitate to tell them so).

Some may ask, what was the point in granting status to someone, if they could not thank you at the polls?

The solution was elegant. Change the Constitution in a manner that defined who could vote – without any separate need to debate and amend the Elections Law. In doing so any Caymanian (over the age of 18) could vote even if they did not have British Overseas Territory Citizenship and were thus ineligible to hold a Cayman Passport.

Then the next big issue arose: What about the children?

Hundreds of persons who did not qualify to be dependents on work permit holders were nevertheless allowed into Cayman as one of their parents had become Caymanian. Many were permitted to attend a quickly overburdened government school system (itself already recovering from Hurricane Ivan) – and after a year in Cayman were often acknowledged to be Caymanian by Entitlement (on the basis they were under the age of 18, the child of a Caymanian, and had been legally and ordinarily resident in the Islands for at least a year). You read that correctly. One year of residence is all it took.

Of course, all these children (as with all persons who are Caymanian by Entitlement) would have to leave Cayman or apply for continuation of their status on turning 18. Some made the required application – and were (quite properly) refused on the basis that they had not (by then) lived (legally and ordinarily) in Cayman for 5 of the 7 years preceding their 18th birthday. They were sometimes required to leave.

Others stayed, but did not apply for continuation. Many of those (former Caymanians “by Entitlement”) appear to have simply been able to continue living and working here and have become among our “Ghost Caymanians.”

Notwithstanding that this issue has been well known for many years, “Ghost Caymanians” are still a problem – although we are seeing increased efforts to require Caymanians to demonstrate/evidence that they are Caymanian. Of course, the National ID scheme will provide an inflection point for those whose “undocumented” presence has been tolerated (potentially even assisted) for so long. There will undoubtedly have to be yet more (in effect) freely distributed permissions. This time (I would beg) start off with Permanent Residence rather than heading straight to the most sacred of permissions, the Right to be Caymanian. Let’s hope we don’t find too many Ghosts registered to vote (or owning more than 40% of local businesses, or holding a scholarship, or working without a work permit, or being the “Caymanian” Spouse of an RERC holder).

If we are in a hole. Rule number 1: STOP DIGGING! Enforce the law – AND the principles underpinning it. The society we inherit and construct must fit the foundation laid for it. If it does not, it will surely fall out of balance, and ultimately topple. It is only by not consistently following our own laws (again, and again) that we seem to find ourselves in many of our quagmires.

First, we need an accurate list of all the people living here who are already Caymanian. Incredibly, we do not. If we did, it wouldn’t be taking weeks for many Caymanians to seek and obtain formal acknowledgement of that fact, sometimes decades after they are born in or moved to Cayman – and we would not have the Department of WORC deferring a number of applications for “further evidence” that referees are Caymanian.

Second, we need to ensure that every agency and department of both the public and private sectors stop being allowed to exercise their own discretion/preference as to who is Caymanian relative to who is not. Aside from those caught in the Schrodinger Paradox, you are either Caymanian or not. The distinctions are clear.

Third, we need to clarify and rationalize the path to becoming Caymanian, and make accommodation for those that have fallen into any cracks.

Fourth, we need to seal the cracks!

For persons who are not born Caymanian and who do not become Caymanian as children, we now have two distinct routes to become Caymanian (not including Cabinet Status grants or claims to be Caymanian based on descent).

They require Marriage to a Caymanian for 7 years (but amazingly none of those years need be in Cayman), OR 5 years of Residence (including at least one year as a Permanent Resident) followed by Naturalisation or Registration as a BOTC, and THEN a further 5 years of residence post Naturalisation or Registration. The reality is that for most the Naturalisation option requires at least 15 years in Cayman, given that application for PR cannot be made in most cases unless the applicant has been legally and ordinarily resident in the Islands for 8 years.

The British Nationality Act (under which persons are vetted to become a BOTC) is thorough – and (for example) will generally not permit persons of bad character or for whom the Cayman Islands are not a person’s genuine home, to advance to BOT Citizenship. It can be a very useful filter.

We do not have to reinvent the wheel. Permanent Residence is in effect available to all who marry Caymanians, all who marry Permanent Residents, all who pass through the 8 year Points-System, all who are the dependent children of a Permanent Resident (and who are in Cayman as approved dependents for at least 7 years before turning 18) and all who invest more than CI$2 million in developed real estate and pay CI$100,000 to the Government.

If we simply required all applicants for the Right to be Caymanian to first be Naturalised or Registered as BOTC’s, we would free ourselves from the problem of having thousands of Caymanians unable to hold a Cayman Passport, have additional vetting and security as to who we are making Caymanian, and significantly simplify our immigration (and border control) systems. Imagine how easy it could be to simply have a stamp in everyone’s passport denoting their immigration status?

The idea of being a BOTC on the path to becoming Caymanian is not a new idea or even my own. It was expressed (and invoked) by Mr. Benson Ebanks more than 50 years ago. It was sound advice then – and we should not be hesitating to follow it now.

Were we to do so we would again have a solid foundation to take whatever next steps the Caymanian people deem appropriate.

Mr. Benson Cayman