Policy on Cuban migrants 'taking longer than expected'

A new policy governing repatriation of Cuban migrants who land illegally in the Cayman Islands will not be completed until at least midyear, Deputy Governor Franz Manderson’s office indicated last week. 

Meanwhile, the Cayman Islands and other jurisdictions in and bordering the Caribbean Sea are seeing a marked increase in Cuban migrants in their territorial waters, partly due to fears a 20-year-old U.S. immigration policy regarding landed migrants will change during the final years of President Barack Obama’s administration. 

Since late January, more than 75 Cuban migrants have passed through or landed in Cayman Brac. Some have ended up in waters off Grand Cayman, often a stopover point on their journey to Central America and eventually to the U.S. 

Since early 2014, Deputy Governor Manderson and other Cayman Islands government officials have been involved in talks aimed at redrafting the memorandum of understanding regarding migrants that was agreed in 1999 between Cuba and Cayman.  

“The negotiations between the Republic of Cuba and the Cayman Islands have been progressing through diplomatic channels,” Mr. Manderson said. “While the negotiations have been taking longer than expected, we are hopeful to sign a new agreement in the next few months.” 

Little has changed with regard to the Cuban situation since a comprehensive 2007 review of the memorandum and associated local government policies was completed by the then-Human Rights Committee in Cayman. 

The memorandum of understanding states that repatriation of Cuban migrants is supposed to occur within 21 days. In practice, that almost never happens, and the process can be delayed for months due to bureaucratic red tape. More recently, some migrants’ applications for asylum – required to be heard under human rights laws – have delayed the process even further. Mr. Manderson has said Cayman is essentially at the mercy of the Cuban government’s bureaucracy on repatriation issues. 

The former rights committee warned that keeping Cuban migrants in detention too long could potentially lead to human rights violations. 

“It is … not permissible to simply blame any delay on the Cuban government, nor can the [memorandum of understanding] … operate as a justification for failing to comply with human rights obligations,” the 2007 report stated.  

Among the findings made in the former Human Rights Committee report was a recommendation that authorities be required to rescue and bring ashore all migrants found in distress or on non-seaworthy vessels on Cayman waters. 

The committee’s review suggested those migrants should be taken into custody even if they do not want assistance and force is required to bring them in. 

The current migrant detention facilities in Fairbanks, run by the Immigration Department, can house approximately 30 people without causing overcrowding and safety concerns. Often, a single boatload of Cuban migrants carries more than 30 travelers.  

That 2007 report, co-authored by current Human Rights Commission Chairman James Austin-Smith, still forms the basis of local law enforcement’s policy regarding Cuban migrants at sea. Essentially, if the migrants’ vessel is determined to be seaworthy, they are allowed to continue on their journey. If it is determined to be dangerous, or if it is unable to shove off from a local dock, then the craft and its passengers are detained and eventually sent back home – unless they are considered legitimate asylum-seekers.  

Residents often bring those travelers food, water and even parts to repair their boat engines to assist them in continuing on their journey.  

“It reflects so well on Cayman society, the desire of everyone to assist people when they’re coming through,” Mr. Austin-Smith said during an interview this month. “However, [the issue] is much more complex.” 

Mr. Austin-Smith said the knowledge that Cuban migrants can receive some form of assistance in Cayman has actually made the problem worse from a humanitarian standpoint.  

“You can’t encourage people to set off in these unseaworthy boats … knowing that you can come to Cayman and we’ll fuel you up and repair your boats and send you on your way again,” he said. “You may not get here in the first place, and that’s contrary to any of our obligations under international law.“ 

Whatever agreement about migrant repatriation is made between the Cuban government and Cayman is not likely to change the current situation, Mr. Austin-Smith believes.  

“The solution has got to come from either end [the U.S. or Cuba]. Cayman is, quite literally, caught in the middle,” he said.  

“I think the policy we’ve got on that at the moment is about as good as we can make out of a bad situation. It’s harsh, but on balance I think it’s probably the right policy.”  

Wet feet 

Whether the U.S. will eventually change its immigration rules with regard to landed migrants – currently known as the “wet foot/dry foot” policy – is a matter of some debate.  

In 1995, the U.S. Congress revised the 1966 Cuban Adjustment Act, basically allowing anyone who fled Cuba and who managed to enter the U.S. to pursue residency a year after entering. Former U.S. President Bill Clinton’s administration agreed with the Cuban government that it would stop admitting migrants found at sea.  

Since then, Cubans found in the waters between the two nations are repatriated or sent to another country if it is determined to be unsafe to send them back to Cuba. Anyone who makes it to shore gets an opportunity to remain in the U.S. and potentially qualify for expedited permanent resident status.  

President Barack Obama’s late 2014 announcement regarding his administration’s change in policy toward Cuba brought some concerns that the “wet foot/dry foot” policy would end and that, going forward, any illegal migrants would be expelled, whether found on land or at sea.  

U.S. Coast Guard officials said in January that “coyotes” – people who profit from assisting in the transport of illegal migrants – were perpetuating rumors that the wet foot/dry foot policy would end, seeking to encourage more illegal migration.  

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Cuban migrants frequently stop over in Cayman waters on their journey to South America and ultimately the United States. – PHOTO: NORMA CONNOLLY
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