Legislative Assembly statements in late 2003 during a lengthy debate on what came to be known as the “rollover policy” incorrectly identified the United Kingdom’s – and Cayman’s – legal obligations to non-Caymanian residents who lived in the British Overseas Territory for 10 years or more, the Cayman Compass has learned.
The issue revolves around the application of the European Convention on Nationality, first approved by the European Union in 1997, to local immigration policies. Local attorney Sophia Harris said last week that despite statements made by lawmakers in support of the Immigration Bill that created the term limit policy for non-Caymanian residents in January 2004, that convention had, and currently has, no application to either the U.K. or the Cayman Islands.
According to Hansard records of a Legislative Assembly debate on the introduction of the “rollover policy,” then-Leader of Government Business McKeeva Bush noted the following: “Recent experiences have led us to accept that, in the future, the Cayman Islands will have to be more mindful of international views on human rights, particularly in relation to the rights of residency and citizenship for long-term residents, including work permit holders. Therefore … we have had careful regard to these internationally recognized standards in crafting our new immigration policy and legislation.
“This accords with the European Convention on Nationality, to which the United Kingdom became a party in 1997, and our own past immigration legislation, which provided for the possibility of applying for a grant of Caymanian status after ten years of residence.”
Mr. Bush’s remarks were made in the context of more than 6,000 non-Caymanian residents who, as of late 2003, had been in the jurisdiction for at least 10 years, some for more than 30 years, without receiving any security of tenure. Other Legislative Assembly members who contributed to the “rollover” debate on Dec. 15 and 16, 2003, in the assembly chambers referenced the 10-year period identified in the convention as part of the reasons to support such a policy. The European convention itself states, “each state party shall provide in its internal law for the possibly of naturalization of persons lawfully and habitually resident in its territory. In establishing the conditions for naturalization it shall not provide for a period of residence exceeding 10 years before the lodging of an application.”
Although the U.K. is an EU Council of Europe member state, it has never signed on to the Convention on Nationality and the convention does not apply to the Cayman Islands.
“Our position has always been that [the convention] has no direct application to the Cayman Islands,” Attorney General Sam Bulgin said Tuesday.
Asked why he did not immediately clarify the former leader’s statement in the assembly regarding the convention’s application, Mr. Bulgin replied: “It doesn’t work that way.”
Nine years later, in a separate evaluation of the territory’s Immigration Law, the Term Limit Review Committee, led by local attorney Sherri Bodden-Cowan, who also advised on the initial creation of the “rollover” policy, posed the question a different way.
“First question: Are there international treaties, United Kingdom or Cayman Islands statutes or other legal obligations that require the Cayman Islands government to grant to all work permit holders and other third country citizens residing in the Cayman Islands security of tenure in the islands after a certain number of years of continuous residence?”
The answer was given in the June 2012 Term Limit Review Committee report tabled in the Legislative Assembly: “Although the United Kingdom is a member of the Council of Europe, it is not a signatory nor has it ratified the European Convention on Nationality of 1997.
“If not binding authority, the importance of the convention should be regarded at least as being persuasive authority in any deliberations regarding obligations on a state in respect to the granting of citizenship for non-nationals.”
Mrs. Bodden-Cowan, who led the efforts to craft both reports on the term limit issue in 2003 and 2012, said the 10-year period has been considered by the Cayman Islands government as an “international norm” with regard to immigration policy and the granting of citizenship rights.
Mrs. Bodden-Cowan said it was adherence to international norms – following a 2001 court ruling that declared Cayman’s moratorium on grants of Caymanian status to be illegal – that led to the creation of the rollover policy.
Mr. Bush, now the territory’s opposition leader, said his proposal to shorten the “break in stay” period for rolled over non-Caymanian workers to one month from the current year would have satisfied internationally accepted norms, while not drastically affecting local business operations. That plan was never carried forward by the former United Democratic Party government between 2009 and 2012, and it was abandoned by the current Progressives-led administration.