Legally Speaking: Confusion at the intersection of BOT citizenship and being Caymanian

Nick Joseph

Passports seem to have originated as a document authorizing persons to pass through “the gate” of a medieval city. Times have moved on and (at least according to Wikipedia) passports today are a “travel document usually issued by a country’s government that certifies the identity and nationality of its holder primarily for the purpose of international travel.”

Great in principle, but not accurate in the Cayman context.

Cayman Islands passports are neither issued by the Cayman Islands government, nor do they (usually) confirm the nationality of the holder. They are travel documents certifying the identity of the holder and are used for international travel. Everyone lawfully issued a “Cayman Islands Passport” is a British Overseas Territories Citizen by virtue of a connection with the Cayman Islands. They may or may not however be Caymanian, and unless the immigration authorities place a stamp in it confirming the bearer to be a Caymanian, the passport itself is not determinative of whether or not the holder is Caymanian. Even persons who hold Cayman Islands passports and were born and have always lived in the Cayman Islands may not be Caymanian.

Even more confusingly, many British Overseas Territories citizens by virtue of a connection with the Cayman Islands have no inherent right to live and work in (or even enter) the Cayman Islands, even if they have been British Overseas Territories citizens (automatically) from birth. These will include children born in the Cayman Islands today to parents who hold permanent residence (whether or not they are also themselves British Overseas Territories citizens).

According to the Cayman Islands Immigration Law, the only time a British Overseas Territories citizen has any inherent right to live in the Cayman Islands by virtue only of their passport is if they became a British Overseas Territories citizen by registration by entitlement under the British Nationality Act. Such persons are persons who were born without British Overseas Territories citizenship in the islands and, having lived here for the first 10 years of their life, then apply for such registration or, if born in the islands, have a parent who subsequently becomes settled. Even then, if they work without a work permit, or move away for five years, their right to reside is lost.

Non-Caymanians who are born British Overseas Territories citizens (i.e. can hold Cayman Islands passports without having to apply for Registration by Entitlement under the British Nationality Act) have no inherent right to reside or work in the Cayman Islands.

All of this creates an enormous conundrum for all manner of departments of the Cayman Islands Government. There does not appear to be any uniform or consistently applied mechanism for distinguishing Caymanians from non-Caymanians and (particularly since having a Cayman Islands passport and being born in the Cayman Islands are often irrelevant considerations to the question of whether or not someone is qualified to, for example, register to vote or obtain a stamp duty waiver as a first-time buyer), the risk of arbitrary (and incorrect) determinations is significant.

The Immigration Regulations provide that the holders of Cayman Islands passports need not fill in landing cards. It is ironic that Caymanians not traveling on a Cayman Islands passport (many Caymanians do not have one, and some may not even be entitled to obtain one) have to complete landing cards while hundreds (or even thousands) of non-Caymanians with Cayman Islands passports are exempt. A Gordian Blade is available to the authorities to resolve this long-standing issue through minor changes to the immigration regime. All that seems required is the will to wield it.

Nick Joseph is a partner at law firm HSM.