Nick Joseph, HSM
Following the passage of the Immigration (Amendment) Law, 2018 (“the Amendment Law”), new opportunities present themselves for persons who are married to a Caymanian and hold (or are seeking) Residency and Employment Rights Certificates as the spouse of a Caymanian. According to documentation recently received from the Department of Immigration, there are approximately 350 expatriates holding Residency and Employment Rights Certificates (RERCs) as the spouse of a Caymanian. We expect this number will increase.
Unlike the RERCs awarded to permanent residents, the RERCs awarded to the spouse of a Caymanian were not previously permanent in nature. They only lasted for seven years and the holder either had to seek the Right to be Caymanian (on the basis of seven years’ marriage to a Caymanian) or seek to renew their RERC before its expiry.
Until the spouse of a Caymanian became Caymanian, they could not be said to be free from any immigration restriction on the period they are permitted to remain in the islands, given the seven-year period of validity of their RERC. This meant that they were unable to be naturalized or obtain a Cayman Islands passport during that seven-year period. Cayman Islands passports are only available to persons who hold British Overseas Territories Citizenship (BOTC) by virtue of a connection with the Cayman Islands. The process for being, or becoming, a BOTC of the Cayman Islands is set out in and governed by the British Nationality Act. That act has at all relevant times required applicants for naturalization to have been resident in the territory for a minimum of 12 months “free from Immigration Restriction for the period for which they may remain” prior to becoming eligible to apply for naturalisation.
In contrast, the spouse of a permanent resident was able to seek naturalization a year after marrying a PR-holding expatriate, and thereafter obtain a Cayman passport. The result was that a spouse of a Caymanian was, until very recently with the passing of the Amendment Law, treated far less favorably. They would have to be married to a Caymanian for seven years, apply for Caymanian status on the grounds of seven years’ marriage, obtain that status and hold it for 12 months before being eligible to apply for naturalization and, thereafter, a Cayman passport.
The government has acted to ensure that a spouse of a Caymanian is subject to the same rules when seeking naturalization and a Cayman passport as the expatriate spouse of an expatriate PR-holder. This change is welcomed and the authorities should be congratulated for making it.
The relevant amendment, which came into effect on Aug. 13, has removed the seven-year expiry date on every RERC issued to a spouse of a Caymanian, in effect making their RERC certificate indefinite in nature.
With no expiry date to their certificate, a spouse of a Caymanian holding an RERC may now, provided they have held an RERC for no less than 12 months and have been legally and ordinarily resident in Cayman for no less than five years, apply for naturalization on the grounds of residence. If they are married to a Caymanian, who is also a BOTC by virtue of a connection to the Cayman Islands and have been married and resident for three years, an application for naturalization on the grounds of marriage to a BOTC can now be made.
This will greatly expedite the ability of a spouse of a Caymanian to seek and obtain Cayman Islands passports and to thereafter seek registration as full British citizens which, if granted, would enable them to hold full British citizenship in addition to being British Overseas Territories Citizens.
Once the spouse of a Caymanian has been naturalized as a BOTC, they will be eligible to seek to become Caymanian on the basis of residence some five years later or 15 years after first becoming resident in the Cayman Islands, whichever is less. This is the mechanism by which most long-term residents may become Caymanian and is entirely consistent with the original intention of what started as the Caymanian Protection Law, that in order to be eligible to become Caymanian, applicants must first be British subjects.
The ability of a spouse of a Caymanian to seek to become Caymanian relying on seven years of marriage to a Caymanian (rather than on the basis of naturalization/residence set out above) continues; although not least, given issues that may arise following any breakdown of the marriage, prospective applicants for Caymanian Status may prefer (all other considerations being equal) to follow the naturalization/residence route to becoming Caymanian rather than seeking status based on marriage.
Holders of RERCs as a spouse of a Caymanian continue to enjoy unfettered access to the labor market and to be free to engage in any category of gainful occupation without having to pay annual fees.
The government has elected to not require a spouse of a Caymanian to undertake any annual reporting requirements but given perceptions as to marriages of convenience and the potential for such spouses to be living apart, such provisions may need to be introduced in the future.
Nick Joseph is a partner at law firm HSM.