CBA Immigration Proposals

Background

Following the publication of the Select Committee's Discussion Paper (the "Discussion Paper") on the Law, the CBA constituted an Immigration Law Review Committee (the "Committee") for the purposes of considering the Discussion Paper and the matters arising therefrom and preparing a submission (the "Submission") in respect thereof. The CBA is of the view that its members, being comprised exclusively of Caymanian Attorneys, are ideally placed to comment and provide guidance on the issues in question, in particular as these necessarily require an understanding of the Law in its current form.

The Committee met regularly throughout November and December, 1998 and the Submission, as set forth herein, was unanimously approved by those members of the CBA in attendance at an Extraordinary General Meeting held on 12th January, 1999.

Whilst the CBA is fully satisfied that the proposals outlined in the Submission are in the best long term interests of the Cayman Islands (the "Islands") and both Caymanians and residents, it is felt that the time allotted by the Select Committee for consideration of the Discussion Paper has been unrealistically curtailed, given the significance of the subject matter. The CBA would caution against implementing any change to the immigration policies of the Islands without further public discussion and a comprehensive review.

The Submission is, necessarily, limited in scope by the Discussion Paper and therefore deals with immigration issues exclusively. However, the CBA is fully aware that immigration is only one of many concerns facing the Islands at this time and considers that a comprehensive Development Plan is now required, if the future social stability and economic development of the Islands are to be assured.

It is the CBA's earnest hope that there exists, in both the public and private sectors, the will and commitment needed to address these issues, including immigration, and implement workable solutions before it is too late.

The key features of the Submission are as follows:

(a) The abolition of the grant of Caymanian Status ("Status") based on residency alone.

(b) The provision of security of tenure for deserving long term residents.

(c) The implementation of a work permit policy for newcomers which ensures that only those expatriates who can demonstrate a sustained commitment to:

(i) the betterment of Caymanian society,
(ii) the occupational advancement of Caymanians or
(iii) the enhancement of the Caymanian economy are allowed to remain in the Islands for more than 12 years.

(d) The provision of Permanent Residence for persons who have spent most of their pre-adult life in the Islands.

(e) The institution of an Immigration Appeals Tribunal.

The CBA commends the Submission to the Select Committee as the product of research, thoughtful debate and reflection and stands ready, willing and able to meet with the Select Committee to discuss its contents.

Introduction

Our current situation dictates that:

(a) a solution be arrived at to deal with persons who have been resident in the Islands for a long period of time but who do not possess Status or permanent residence with the right to work; and

(b) going forward a framework is provided that:

(i) promotes the well being of the Islands and its people whilst limiting those persons who are able to obtain permanent rights in the Islands to long term residents who have demonstrated a real commitment to the Islands;

(ii) ensures that every Caymanian who is able, willing and qualified, obtains gainful employment, proper training and the opportunity to be promoted to the highest level possible according to his/her qualifications, ability, performance and experience; and

(iii) ensures that there is no uncertainty for expatriate workers as to their permanent rights in the Islands.

Part 1 - Work Permits

1. Preliminary

1.1 Requirement for a permit

There is currently some confusion as to when a permit is needed. The Law should be amended to specifically define the instances when a permit is not required. In particular:

(a) a person sent from the head or regional office of his employer periodically to review the performance of any branch or subsidiary in the Islands whose stay does not exceed two weeks should not require a work permit; and

(b) a person entering the Islands to attend meetings with respect to any aspect of the offshore financial industry whose stay does not exceed two weeks should not require a work permit.

1.2 Classification of work permits available

(a) Temporary

Temporary work permits ought to be available for 30, 60 or 90 days. Any temporary work permit should be renewable only once.

(b) Work Permits

The Immigration Board (the "Board") should grant only two-year permits except in the following circumstances:

(i) in relation to the provisions set out in paragraph 2 of this Part of the submission, if the Board is satisfied that a person satisfies the criteria set out in paragraph 2.2 below then the Board should grant such person a five-year permit; and

(ii) in relation to the provisions set out in paragraph 3 of this Part of the submission, if on the expiration of a person's permit there are less than two years between the time of the expiration of his permit and the time at which the Board is required to consider whether the person should be given permanent residence under the provisions of paragraph 3 and the Board deems it appropriate (applying the provisions of section 30 of the Law) to grant a further permit to such person then the duration of the further permit should be however much time is left between the expiration of his last permit and the time at which the Board is required to consider whether the person should be granted permanent residence under the provisions of paragraph 3.

2. Policy for those who obtain work permits after the date on which the amendment law comes into force (the "Effective Date"):

2.1 The Board should continue to take into account the provisions of section 30 of the Law when granting permits. However, after a person has been a permit holder for ten years continuously the Board should consider whether the person should be granted a five-year permit in accordance with paragraph 2.2 below.

2.2 The Board should grant a five-year permit only if it is satisfied that the relevant individual is of good character and during his tenure has demonstrated a sustained commitment to (a) the betterment of Caymanian society, (b) the occupational advancement of Caymanians or (c) the enhancement of the Caymanian economy. It is intended that this criteria be rigidly applied and be satisfied by exceptional individuals only.

2.3 If the Board does not grant a five-year permit under paragraph 2.2 above then the relevant person should be granted a final two-year permit. The rationale for such permit is that it will allow the person's employers to find a replacement and will allow the person to settle his affairs in the Islands.

2.4 During the period of three months just prior to the expiration of a five-year permit granted under paragraph 2.2 above the relevant person should be entitled to apply to the Board for permanent residence with an unrestricted right to work ("Permanent Residence") and, if he makes such application, the Board should grant Permanent Residence to the person only if it is satisfied that the person meets the criteria set out in paragraph 2.2. There should be an advertising requirement as part of the application process similar to the advertising requirement that currently has to be satisfied by persons applying for Status on the basis of residence. If the relevant person does not apply for Permanent Residence in accordance with the preceding or applies for, but is not granted, Permanent Residence then he should be granted a final two-year permit.

3. Policy for those who have work permits at the Effective Date

3.1 Different rules would apply depending on how long a person has continuously been a permit holder at the Effective Date.

3.2 If a person has continuously been a permit holder for less than 5 years then the policy described above for persons who obtain work permits after the Effective Date should be applied to such person.

3.3 If a person has continuously been a permit holder for at least 5 years but less than 12 years then such person should be granted or refused work permits, applying section 30 of the Law in the usual manner. If such person is able to obtain work permits for a continuous period of 15 years then, during the period of three months just prior to the expiration of his final work permit, the person should be entitled to apply to the Board for Permanent Residence and, if he makes such application, the Board should grant Permanent Residence to the person only if it is satisfied that the person meets the criteria set out in paragraph 2.2 of this Part. There should be an advertising requirement as part of the application process. If a person does not apply for Permanent Residence in accordance with the preceding or applies for, but is not granted, Permanent Residence then he should be granted a final two-year permit.

3.4 If a person has continuously been a permit holder for at least 12 years but less than 20 years then such person should be granted or refused work permits, applying section 30 of the Law in the usual manner. If such person is able to obtain work permits for a continuous period of 3 years after the Effective Date then, during the period of three months just prior to the expiration of his final work permit the person should be entitled to apply to the Board for Permanent Residence and, if he makes such application, the Board should grant Permanent Residence to the person only if it is satisfied that the person meets the criteria set out in paragraph 2.2 of this Part. There should be an advertising requirement as part of the application process. If a person does not apply for Permanent Residence in accordance with the preceding or applies for, but is not granted, Permanent Residence then he should be granted a final two-year permit.

3.5 If a person has continuously been a permit holder for at least 20 years then, during the period of three months immediately following the Effective Date, such person should be entitled to apply to the Board for Permanent Residence and, if he makes such application, should be granted Permanent Residence subject to the Board being satisfied that he is of good character. There should be an advertising requirement as part of the application process. If a person does not apply for Permanent Residence in accordance with the preceding or applies for, but is not granted, Permanent Residence then he should be granted a final two-year permit.

The above provisions are summarised by the following table which shows the manner in which a person who is on a work permit at the Effective Date would be dealt with under the provisions of the Law (as amended):

 

Number of years that the person has continuously been a permit holder at the Effective Date	Manner in which the person would be dealt with under the Law (as amended)
Less than 5 years	Subject to the same policy that applies to persons who arrive after the Effective Date.
At least 5 years but less than 12	May be granted 2 year work permits until the person has been a permit holder for 15 years at which time the person will be entitled to apply for Permanent Residence. If the person does apply for Permanent Residence the Board should grant Permanent Residence to the person only if it is satisfied that the person meets the criteria set out in paragraph 2.2 of this Part. If a person does not apply for Permanent Residence in accordance with the preceding or applies for, but is not granted, Permanent Residence then he should be granted a final two-year permit.
At least 12 but less than 20	May be granted work permits until the person has been in the Islands for 3 years after the Effective Date at which time the person will be entitled to apply for Permanent Residence. If the person does apply for Permanent Residence the Board should grant Permanent Residence to the person only if it is satisfied that the person meets the criteria set out in paragraph 2.2 of this Part. If a person does not apply for Permanent Residence in accordance with the preceding or applies for, but is not granted, Permanent Residence then he should be granted a final two-year permit.
At least 20 years	The person will be entitled to apply for Permanent Residence and, if he does make such application, will be granted Permanent Residence subject to the Board being satisfied that the person is of good character. The person will be granted a final 2-year permit if he does not apply for or is not granted Permanent Residence.

4. General Issues

4.1 Training

Each Caymanian employee should be assigned to a senior person in the organisation of which he is an employee which senior person would be responsible for his training. Once a year each organisation should submit reports to the Board and the Director of Labour on the progress of the training of its Caymanian employees and its plans for those employees which reports should be signed by both the organisation and its employees. If any Caymanian employee thinks that he is not receiving adequate training or is unfairly being passed over for promotion, it would be open for him, after trying to resolve the problem internally, to ask for a review by the Board. There will need to be flexibility in this policy to provide for the difficulty that small organisations face in finding the resources to provide training, particularly where this involves attendance outside the office. "Training" in this context means the provision by an employer to an employee of the practical experience and instruction necessary to bring an employee to a standard of proficiency that may generally be expected of an employee employed in the relevant occupation for the relevant number of years.

The training issue is a complex one in its own right for which practicable solutions can only be arrived at after extensive analysis and debate. It should be noted that in preparing this submission the members of the CBA had insufficient time to give the same comprehensive consideration to this issue that they gave to the immigration issue in general and the members of the CBA appreciate that further consideration should be given to this very important issue.

4.2 Spouses of Caymanians

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.

4.3 Persons whose final two-year permits have expired

If a person has been granted a final two-year permit under the provisions of paragraph 2 or 3 of this Part and such permit has expired then such person should not be entitled to apply for a work permit until after he has been resident outside of the Islands for at least two years.

4.4 Persons who have been physically resident within the Islands for at least 10 but less than 15 of their first 18 years of life

If a person can show that he was physically resident within the Islands for at least 10 but less than 15 of his first 18 years of life then in considering any work permit application for him the Board should give to him preferential treatment as compared to any other person having similar qualifications to him but not satisfying the said criteria. "Physically resident" in this context should have the same meaning that it has in paragraph 5 of Part 2.

Part 2 - Permanent Residence

1. If a person has continuously been a permit holder for at least 20 years then, during the period of three months immediately following the Effective Date, such person should be entitled to apply to the Board for Permanent Residence and, if he makes such application, should be granted Permanent Residence subject to the Board being satisfied that he is of good character.

2. Permanent Residence may also be granted as described in paragraphs 2.4, 3.3 and 3.4 of Part 1 above.

3. Any person granted Permanent Residence under the provisions of paragraphs 1 and 2 of this Part should not be restricted to working in any particular job or profession.

4. The spouse of any person who has Permanent Residence should be entitled to apply for Permanent Residence subject to the same principles that currently apply to a non-Caymanian spouse of a Caymanian obtaining Status (see Section 16(5) of the Law).

5. If a person can show that for at least 15 of his first 18 years of life he had been physically resident within the Islands then he should, as of right, be granted Permanent Residence. Any time during which a child is attending boarding school abroad would not be considered time that the child is physically resident in the Islands. However, any time during which a child is attending university abroad would be considered time that the child is physically resident in the Islands. The rationale behind the latter definition of "physical residence" is that it would ensure that only those children who have actually grown up in the Islands and are likely to be fully integrated are allowed to obtain Permanent Residence. Please note that any person who has been physically resident within the Islands for the majority of his first 18 years of life but who does not satisfy the aforementioned requirements for Permanent Residence may nevertheless be able to obtain preferential treatment with regard to work permits under the provisions described in paragraph 4.4 of Part 1 above.

Part 3 - Caymanian Status

1. Subject to the one exception described below, Status should only be granted to the children of those possessing Status, those persons with close Caymanian connections or those persons who are married to Caymanians (subject to the provisions of the current law). The statutory provisions for Status to be granted on the basis of residence should be repealed. With regard to those persons who prior to the Effective Date have submitted to the Board applications for Status on the basis of residence whose applications have not been dealt with by the Board, their application fees should be returned to them and they should be notified that they will not be granted Status but may be entitled to apply for Permanent Residence under the Law (as amended). The rationale for the aforementioned policy is that it is an attempt to ensure that, even if the existing Caymanians and their descendants are outnumbered in the future by those holding work permits or Permanent Residence, the existing Caymanians and their descendants will still be able to retain control of the political process.

2. If on his 18th birthday a person is able to satisfy the criteria in paragraph 5 of Part 2 above and is also able to show that one of his parents and one of his grandparents has Permanent Residence or Status then the person should be granted Status as of right.

3. Sub-section 16(3) of the Law should be deleted.

4. Sub-section 16(8) of the Law should be amended to read as follows:

"Any person who has attained the age of eighteen years and who has been ordinarily resident in the Islands for the period of three years immediately preceding his application may apply to the Board for a grant of Status if, at the time of his application, at least one of his parents and one of his grandparents has Status."

Part 4 - Appeals

Under the Law, the Governor in Council ("Governor") has the power to give directions to the Board as to the matters to be considered when granting work permits and permanent residence. As such, when an appeal of a Board decision is made to the Governor it is possible that the Governor will have to consider how to apply a direction that it has laid down. This is contrary to the well established doctrine of the separation of powers. In order to ensure (i) that the body that makes immigration directions is not called upon to apply them and (ii) consistency with the appeals processes for the other statutory boards, a separate appeals tribunal similar to the planning appeals tribunal should be established to deal with all appeals from the Board and its sub-committees. The decisions of the appeals tribunal should not be subject to further appeal but may be subject to judicial review.

Part 5 - British Dependent Territories Citizenship

The British Nationality Act 1981 should have no place in the decision making process on whether or not a person is to be granted Permanent Residence or Status, otherwise we would be allowing the laws of England to govern our local immigration policies. There is no need to tailor our legislation so that a BDT citizen is given Status or the right of abode with a right to work. Given our unique situation the present anomalies must exist because to bring us in line with UK legislation would be seriously detrimental to the social and political equilibrium of the Islands. The task of classifying every individual in possession of a Cayman passport with no right of abode and no Status should be embarked upon.