A decade of immigration law built on a fiction

The Cayman Islands government’s key justification for immigration policy changes over the last decade was, in fact, dead wrong.

As highlighted by Immigration Appeals Tribunal chairman Sophia Harris, the European Convention on Nationality — which states that foreigners are entitled to citizenship in countries where they’ve lived for 10 years or more — did not extend to Cayman, despite government’s repeated assertions otherwise, starting from the crusade to roll out the “rollover policy” in 2003, and continuing until fairly recently when legal research set the matter straight.

Astonishingly, we are now learning that even the United Kingdom itself is not a signatory to the European Convention on Nationality. If that is indeed the case, how could local politicians ever concoct the scenario that Cayman was bound, by proxy, to the tenets of the Convention?

Which leads us to inquire:

How is it possible for the government of a country to have been so utterly incorrect about a legal issue so fundamental to the country’s economy and culture?

Attorney General Sam Bulgin says his chambers’ position “has always been” that the convention didn’t apply; then why not make that fact known at some point since 2003?

Why did our British administrators responsible for international agreements, including the Governor (at the time, Bruce Dinwiddy) and the U.K. Foreign and Commonwealth Office, allow Cayman politicians to promote such a consequential fiction?

Further, it is now clear the current government has known about this deception for well over a year — the evidence is buried in the fine print in a June 2012 committee report. Why did the government not publicly admit its error all the way through the 2013 political campaign and election, as well as last year’s complete overhaul of Cayman’s Immigration Law?

It is impossible to quantify how much Cayman has suffered as a result of government’s misinformation, which engendered the most divisive piece of legislation in the modern history of these islands, dividing Cayman into two distinct communities: locals and expatriates. The blunder also was the driving force behind the UDP government’s mass approval of status grants in 2004, and has contributed to continued economic uncertainty, instability and social animus in the country.

The passage of Cayman’s rollover legislation in 2003 was based on the premise that foreign workers must have their residency in Cayman “interrupted,” lest they reach the 10-year threshold and be entitled to permanent residence and citizenship.

This foundational assumption apparently was untrue, and consequently hundreds of companies have sent thousands of their best employees packing based on this misconception.

Local attorney Sherri Bodden-Cowan, who led efforts to craft reports on the term limit issue in 2003 and 2012, says government considers the 10-year period an “international norm” rather than a treaty obligation — or as the 2012 report stated, a “persuasive authority” rather than a “binding authority.” This swivel is most unsatisfying.

Someone in the government — possibly the attorney general, premier, governor or FCO representative — needs to provide clear answers to the following questions:

  • What international conventions do apply to Cayman?
  • According to international obligations, how many years must a person reside in Cayman before being entitled to citizenship (20, 30, 40)? If there is no number, please say so.
  • And finally, if the U.K. signs human rights agreements, economic agreements, or any other international agreements, do they, or do they not, extend to U.K. overseas territories, such as the Cayman Islands?

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  1. While the stated justification for the ‘rollover policy’ might have been incorrect, what was not in dispute in 2003 was the fact that we had a large number of people that had been living and working in the Cayman Islands for an extended period of time and that something needed to be done to get ahead of any potential claims of human rights violations as a result of sending people home after 20, 30 or even 40 years.

    What this editorial does not clearly state is that by 2003 many foreigners were already complaining about the fact that they had been working and living in the Cayman Islands for many years without the security of permanent residence or Caymanian Status. Something had to be done about this long standing issue and it is somewhat disingenuous to blame the ‘rollover policy’ for dividing Cayman into two distinct communities and this was the trend long before the ‘rollover policy’ was introduced.

    This editorial only attempts to look at immigration and the ‘rollover policy’ from the perspective and desires of the mostly foreign owned business community. However, Immigration policy should not simply be about money and the desires of the mostly foreign controlled business entities, but should also reflect what Caymanians want for the country from a social and cultural perspective.

  2. It’s really interesting how Caymanian people look at foreigners like they are the biggest threat to Cayman. I constantly hear things like they own all the businesses and the property have all the jobs and should not be allowed to stay long enough to have any rights and the laws seem to be created as work around to granting people basic human rights. If I ask you why it is that foreigners own so much of Cayman I’d think the only true answer would be that so many Caymanians sold their land for the almighty dollar and they are now complaining that the place is foreign owned. I wonder if these same people had that in mind when they were cashing those foreign checks. If the Cayman Government had decided decades ago to block the sale of property to foreigners like they do in Bermuda a lot of people would have complained about that decision because they wouldn’t have been able to cash in. I have been following this whole saga long enough to believe that the problems most Caymanains blame foreigners and expats for where actually created by their own actions are inaction’s.

  3. I trust most would agree that back in 2003 a tenure process needed to be formalized that so it was/is (relatively) clear to all. In hindsight it may not have been perfect a decade later but at the time a viable solution. Is a rethought a decade later in order? I think most would agree that we are at that point and we leave that to the elected officials to adjust the policy or law as they deem fitting for where we are now.

    I do respect Mr. Boland’s comments about social and culture considerations but disagree in that immigration IS and will remain largely about money. Money that it takes to run the country and give all Caymanians a better life than what once was 10, 20, 30 years ago.

    The current situation comes down to math and math that will not work going forward. Within the 2013-14 Budget projections Cayman hoped to raise 645m of which 40% comes from financial and legal services, 12% directly from immigration fees, 5% from real estate for a total of 57% that is very much depended on immigration related (money) matters.

    Although it is deemed that we have an operating surplus of 100m, once we factor in transfer payments to challenged statutory authorities, debt repayments, and a barebones of capital expenditures there is NO surplus, and this assumes that we are going to collect an additional 83m from financial services (47% increase) from fee increases that were not on the books just a few years ago.

    Today the Budget is clearly strained but wait additionally the civil service pension plan is near 200m in monies owed and it is apparently going to take another 20 years to pay it off, and in 2004 the health care liabilities for the civil service were actuarially deemed to be 665m (1.1b at a minimum in today’s terms not including expanded civil service since 2004) all due over what the next 40 years???

    Bottom line here is we need a great deal of funding and LOTS more of it. Immigration is mostly about money and how to fund the country. I think one of the fundamental questions that we are facing is: where is all that money going to come from exactly and what (more) are we going to have to compromise in order to makes ends meet?

    A rethink is indeed in order. Who, how, when and in what portion is what we need to focus on.