Immigration: Pitfalls for the unwary in residency rights

Are you a permanent resident or do you have the right to remain permanently?

Both the same, right? In my mind, fundamentally, yes. Under the Immigration Law of the Cayman Islands, seemingly not. Unexpected twists and pitfalls await the unwary.

Through decades of tweaking, we now find ourselves in a position whereby there are (by our estimation) eight types of permanent residence in these islands (not including the Right to be Caymanian which carries with it many of the fundamental attributes of permanent residence, or the various persons granted permission to remain by the Cabinet).

First is that which has been headline-grabbing in recent years, permanent residence on the basis of the now (in)famous points system.

Then there is that available to the spouses of such persons (as a dependant).

Then there is that available to the spouses of permanent residents who have applied, on the basis of marriage, for their own Residency and Employment Rights Certificate on the basis of marriage.

Then there is that available to the children of permanent residents following their reaching the age of 18.

Then there is that available to wealthy investors.

Then there is that available to their spouses.

Then (since Aug. 13, 2018) there is that available to the spouses of Caymanians.

The above are all available in consequence of applications made to Workforce, Opportunities and Residence Cayman (WORC) under the Immigration (Transition) Law. Each has differing attributes and requirements. Some require annual fees and annual declarations, others do not. Some require investment in real estate (and for it to be maintained), others do not. Some restrict the right to work, others prohibit it, and others do not.

Notwithstanding complications and occasional confusion arising from the sheer variety available, the system fundamentally works. Those holding the various types of permanent residence outlined above do have one thing in common. They are all able to present their passports to the immigration authorities and to receive within it a stamp confirming that the holder of the passport is a permanent resident of the Cayman Islands (with or without the right to work).

Lastly, there is permanent residence available to persons who are registered as BOTCs by Registration by Entitlement under the British Nationality Act. Registration by Entitlement is in consequence an application made to the Deputy Governor’s Office that can be made by (or on behalf of) any child who was born in the Cayman Islands and remains a resident until their 10th birthday. These applications do not arise under Cayman Islands domestic legislation. There is no basis to deny such an application, if made by a qualified applicant. There is no need for either parent of the child to be Caymanian, a permanent resident, or a BOTC. Simple birth and residence here for the first 10 years of an applicant’s life (together with completing a form, supplying supporting documents, and paying relatively nominal fees) is all that is required.

Our Immigration (Transition) Law (like the Immigration Law before it) clearly confirms that these children have “the Right to remain Permanently in the Islands.” Nevertheless, any attempt by them to obtain a stamp in their passport confirming their right to remain has in our experience been refused. The authorities contend that the “Right to Remain” and the “Right to Reside” are different things. This has been the case for some years and no solution seems imminent. Meanwhile, the number of children eligible for confirmation of their “Right to Remain” immigration status in their passports continues to grow.

Those studying our laws governing residence and immigration will note that (appropriately, if they are to have its desired effect of allowing the people of the Cayman Islands to manage the growth of the permanent population of these islands) term limits are set at nine years. Nevertheless, due to numerous loopholes and delays, there is no shortage of children who were born here and are still here on their 10th birthday. Their right to permanent residence (however described) is appropriate and enshrined within our own law.

If only they could be given a stamp in their passport, then they could confirm their status in these islands and freely demonstrate it.