Response to the Select Committee's
Third Interim Report on
The Immigration Law (1997 Revision) ("Law")

We refer to the Select Committee's Third Interim Report ("Report") on the Law. This response to the Report is being submitted to you in accordance with paragraph 10 of the Report wherein the public is invited to give feedback on the Report.

In January 1999 the Caymanian Bar Association ("CBA") made a submission ("Submission") to the Select Committee in relation to the Select Committee's Discussion Paper on the Immigration Law. Enclosed for your ease of reference is a copy of the Submission. The Submission contains the CBA's positions on all of the issues raised in the Report and the CBA hereby re-affirms such positions.

Whilst the CBA believes that its proposed changes to the Immigration Law will be in the best interests of Caymanians and the Cayman Islands ("Islands") as a whole, it is the CBA's view that changes to the Immigration Law will not by themselves solve the various immigration issues. The CBA believes that in order for such issues to be solved it will also be necessary for Government to devise and implement (i) a comprehensive Development Plan that ensures that the growth of the expatriate population does not continue to outpace the growth of the Caymanian population and (ii) a training scheme that will ensure that all able and willing Caymanians receive the education and on-the-job training that they require in order to maximise their potential.

In the remainder of this document we will give our responses to the proposed changes to the Law set out in paragraph 9 of the Report and we will deal with each of the issues raised in the Report in the order that they are raised therein.

One general comment about paragraph 9 of the Report is that no objective or rationale is given for any of the changes proposed in such paragraph. Accordingly, a reader of the Report is left to guess what the Select Committee's objective was in proposing each of such changes. It is our view that the Select Committee should give its objective for each of the changes proposed in the Report so that the public can (i) assess whether the objective is worthwhile and, if so, whether it will be achieved by the proposed change and (ii) suggest possible alternatives to meet the objective.

In this Response, the term "Caymanian" will be defined to mean any person who has Status.

1. Caymanian Status

(a) Acquisition of Status by grant

It is not clear to us whether the grant of Status under this head will be done on a one-off or on an on-going basis. If the grant of Status is to be on an on-going basis then we feel that this policy will result in too many persons being granted Status in a relatively short period of time and we would not support this policy. If one assumes that under the five year "roll-over" policy described in paragraph 9(d) that a person who is on a work permit at the time that the amendment law comes into force ("Effective Date") will not be "rolled over" until 5 years after the Effective Date, then this assumption combined with the Permanent Residence policy described in paragraph 9(b) could possibly mean that most of the persons who have been in the Cayman Islands ("Islands") for more than 10 years at the Effective Date will be granted Status within 15 years of the Effective Date. There are a significant number of persons who have been on a work permit for more than 10 years. It is our opinion that to grant Status to that many persons over the course of the next 15 years would be socially disruptive.

If the grant of Status is to be on a one-off basis then we feel that the amended Law should include provisions, such as those set out in paragraph 2 of Part 3 of our Submission, that would allow the descendents of Permanent Residents to eventually acquire Status. If the amended Law does not include such provisions then in the future it may be possible for a person whose family has been in the Islands for multiple generations not to have Status, which we believe would be patently unfair.

We reiterate that we believe that the grant of Status to persons on the basis of length of residence alone should be abolished for the reasons set out in paragraph 1 of Part 3 of our Submission.

(b) Loss of Status by grant

We agree that it is not necessary to make any changes to the current Law in regard to the loss of Caymanian status by grant.

We agree that the Governor-in-Council should have no part in granting Status.

With regard to the repeal of the power under the current Law that gives the Governor-in-Council the power to make directions, it is not clear to us whether this proposed change relates only to directions pertaining to Status or to all directions. Furthermore, if the Law is amended in accordance with paragraph 9(e) of the Report so that appeals are no longer heard by the Governor-in-Council then we would see no need for the aforementioned power to be repealed since the issues of separation of power would no longer arise.

The following suggestions that we made in our Submission with respect to Status were not incorporated in the Report and we wish to re-affirm such suggestions:

• Any person who is married to a Caymanian should, so long as he remains married to a Caymanian, have a right of residence in the Islands with an unrestricted right to work. After five years any such person should be eligible to apply for Status in the usual manner (paragraph 4.2 of Part 1). Under the current Law a person married to a Caymanian who does not have a work permit does not have an automatic right to reside here and is treated no differently from a tourist. This, in our opinion, is a glaring shortcoming in the current Law.
  
  
• Sub-section 16(3) of the Law should be deleted (paragraph 3 of Part 3). Our rationale for this suggested change is that under such sub-section it would be possible for someone with only a tenuous connection to the Islands to obtain Status.
  
  
• Sub-section 16(8) should be amended in the manner described in paragraph 4 of Part 3. We believe that such change would not have any practical effect on the operation of such sub-section but that it would make such sub-section easier to understand by the layman.

2. Permanent Residence

(a) Retirees

The Report does not define the term "independent means". Does that term have the same definition as the one given in The Immigration Directions (1996 Revision)?

The Report indicates that a person eligible for this type of Permanent Residence must own a minimum of CI$250,000.00 in assets. It does not make clear whether such a person should own any assets in the Islands and, if he must, the minimum value of such assets. We would suggest that such a person must own at least CI$500,000.00 in assets located in the Islands and must retain those assets in the Islands.

(b) Existing residents with Caymanian connections

The Report does not define the terms "residents with Caymanian connections" and "self-supporting". Does the term "resident with Caymanian connections" have the same definition as the one given for the term "person with close family connection with the Islands" given in The Immigration Directions (1996 Revision)?

(c) Existing residents without Caymanian connections

The Report does not make clear whether Permanent Residence will be granted automatically to a person who has been resident in the Islands for 15 years and has no criminal convictions or whether the person will be required to satisfy any additional criteria.

(d) Loss of Permanent Residence

We agree that no changes are necessary to the current Law in relation to this matter.

Please refer to Part 2 of our Submission for our views on Permanent Residence.

3. British Dependent Territories Citizenship

We agree with the proposed changes.

4. Work Permits

(a) Proposed across-the-board 5 year "roll-over" policy

We do not agree with the proposed five-year, inflexible "roll-over" policy on the grounds that its negative effect on local businesses would be too severe. We do however support a maximum permit period and the form of such policy that we support is described in Part 1 of our Submission.

The description given in the Report for the proposed five-year, inflexible roll-over policy is inadequate in that it does not indicate how such policy will be applied to those persons who will be on work permits at the time of the Effective Date. We believe that different rules will have to be applied to those persons who will be on work permits at the time of the Effective Date, and the maximum permit period described in Part 1 of our Submission has been structured accordingly.

The Report also does not indicate whether a person who has lost his work permit as a result of his having worked in the Islands for five years can ever obtain another work permit and, if he can, the minimum period of time that must elapse before he can apply for another work permit. We believe that a person who has lost his permit as a result of the application of the maximum permit period should be able to apply for another work permit after he has been resident outside of the Islands for at least two years.

We believe that if a maximum permit period policy is not implemented the result will be a rapid breakdown in the social climate which in turn will lead to a breakdown in our economy (as has happened in certain countries in this region). Our reasons for having this belief are as follows:

(i) We feel that if an expatriate is allowed to reside in the Islands for more than 20 years then, subject to such person being of good character, he should be given Permanent Residence.

(ii) The number of expatriates in the Islands currently exceeds the number of Caymanians.

(iii) If a maximum permit period policy is not implemented then, considering the above and assuming that most expatriates will stay here for the length of their careers, or at least for more than 20 years (which we believe is a fair assumption considering the Islands' history) and will be given Permanent Residence after they have been here for 20 years, in fifteen years a significant number of expatriates will be entitled to Permanent Residence.. That would mean that in 15 years there is a distinct possibility that the number of expatriates acquiring Permanent Residence within that time would be approximately equal to or greater than the number of Caymanians.

(iv) The primary reason why our forefathers attempted to develop our various industries and the primary reasons why the Islands would like to sustain and grow such industries and develop new ones is to benefit Caymanians.

(v) If an expatriate who is in a senior position obtains Permanent Residence he will likely hold that position until he retires. Thus, even if there is an able and willing Caymanian below him who has the requisite experience and ability to hold that expatriate's position, the expatriate will likely hold such position until he retires which could be 40 years in the future.

(vi) On average, the children of persons who have recently obtained Permanent Residence have better opportunities than the children of Caymanians whose families have been in the Islands for several generations. The reasons for this is that the persons who have recently obtained Permanent Residence typically are wealthier and have better business connections than Caymanians whose families have been in the Islands for several generations.

(vii) It follows from the preceding that if a maximum permit period policy of some sort is not implemented a substantial number of the expatriates who are currently on the Island and those who will arrive in the future will obtain Permanent Residence are likely to benefit more, on average, from the growth in our various industries than Caymanians.

(viii) If a maximum permit period policy is not implemented and the existing Caymanians perceive that they are not the primary beneficiaries of the growth in our various industries there is a substantial possibility that they may become resentful of the status quo and social unrest could result.

Whilst we believe that a maximum permit period policy is required, we also appreciate that any such policy must not have such a negative impact on local businesses that the Islands' economy is substantially damaged or destroyed. That would clearly not be in the best interests of Caymanians and their descendants. The reasons why a maximum permit period policy might possibly damage or destroy our economy are as follows:

(i) The Islands two primary industries are the tourism and financial industries.

(ii) The Islands face substantial competition from other jurisdictions in relation to such industries.

(iii) The jurisdictions that compete with the Islands in relation to the financial industry have similar, if not identical, laws to the Islands and it would appear that the Islands primary advantage over such other jurisdictions is the quality of the Islands' workforce and the services provided.

(iv) There are simply not enough Caymanians to fill all of the positions in the tourism and financial industries, and there will not be for the foreseeable future. For example, there are approximately 260 total attorneys of which only 65 are Caymanian and there are approximately 340 accountants of which only 70 are Caymanian.

(v) It is becoming increasingly more difficult to recruit professional labour from the traditional labour sources because the economies in such jurisdictions are currently booming.

(vi) It is costly to recruit labour.

(vii) It is likely that if a maximum permit policy is too restrictive that the Islands may not be able to recruit high quality expatriate labour.

(viii) If the Islands are not able to recruit high quality expatriate labour the quality of services provided may diminish and the Islands may lose a substantial portion of their current business.

Thus, when creating a maximum permit period policy a balance has to be struck between (i) ensuring that Caymanians are the primary beneficiaries of the growth of our industries and (ii) ensuring that such industries are not substantially damaged or destroyed.

We believe that the maximum permit period policy described in Part 1 of our Submission is a workable compromise that will achieve both of the aforementioned objectives.

(b) Administrative handling of "non-controversial" work permit applications

The Report does not make clear what will constitute a controversial work permit renewal application and who will be the arbiter as to whether or not a work permit renewal application is controversial.

Neither does the Report make clear the reasons why it was felt that the aforementioned change is required. Presumably such reasons would include the following:

(i) The Immigration Board ("Board") now meets for over one and a half days per week.

(ii) A substantial portion of the Board's business involves renewal work permit applications.

(iii) The members of the Board are appointed to the Board by Executive Council and are usually members of the private sector who are paid only a nominal fee per meeting in consideration of their serving on the Board.

(iv) It is unreasonable to expect any person from the private sector to give up one and a half days of his work-week to serve on the Board.

(v) If most work permit renewal applications were dealt with administratively such applications could be handled more efficiently.

(vi) If most work permit renewal applications were dealt with administratively then the Board would operate more efficiently with respect to its other business and the Board should then be able to meet for less than one day per week.

(vii) It is felt that most work permit renewal applications are "non-controversial" and could be effectively handled by civil servants without prejudicing the interests of Caymanians.

We would be prepared to accept the proposed change provided that the following conditions are met:

• The term "non-controversial work permit renewal applications" is defined to mean an application for the renewal of a work permit in respect of which there are no letters of objection and in relation to a person who has no criminal convictions; and
  
  
• The Department of Human Resources, which we believe should have an expanded role as described below, should sign off on each such non-controversial work permit renewal application.

In order for the above change to have any impact on the speed and efficiency with which work permit renewal and other immigration applications are handled we feel that the Immigration Department will have to improve its efficiency above the level at which it currently operates. This may entail better training of the Immigration Department staff, implementing a system of management that will ensure better monitoring of and increased accountability for staff performance and possibly increasing the amount of staff.

5. Appeals Procedure

We agree with the proposal that appeals in respect of decisions made by the Board should be heard by an appeals tribunal of the type described in paragraph 9(e) and we feel that appeals in respect of all types of decisions made by the Board should be heard by the appeals tribunal.

We do not agree with the proposal that appeals in respect of decisions relating to Status and Permanent Residence should be dealt with by a magistrate.

6. Training

The Report does not comment on the issue of proper training of Caymanians but we believe that this issue should be an integral part of the Islands' immigration policy. We refer the Select Committee to our comments on training contained in paragraph 4.1 of our Submission.

In addition to having the additional responsibilities described in paragraph 4.1 of our Submission, we believe that the Department of Human Resources should have the following additional responsibilities:

(a) The responsibility to monitor the Islands' various industries in order to identify gaps in the skills of Caymanians and then to communicate such information to the Dept of Education so that they can alter the programs offered at the High Schools and Community College accordingly.

(b) Provide employers with advice on the ways in which they can provide their employees with the training that they require.

We believe that consideration should also be given to the establishment of a national training fund having the following characteristics:

• The fund could be used by employers to help defray the costs of providing employees with the training that they require.
  
  
• It could be funded by contributions from employers. The amount of contributions from each employer could be based on the type of business conducted by the employer and the number of employees that the employer has.
  
  
• The fund could be administered by the Department of Human Resources.