Government holds $11 million in residence application fees

More than $11.2 million has been collected since October 2013 from permanent residence applicants in the Cayman Islands, according to records obtained by the Cayman Compass under the Freedom of Information Law.

Less than $111,000 has been refunded since that time to unsuccessful applicants, as about 900 people continue to await decisions on their cases.

The vast majority of the $11.2 million, approximately $10.3 million, is considered refundable under the Immigration Law if none of the current applicants is successful in obtaining residency status.

The additional $900,000 paid in $1,000 one-time application fees would not be refundable under the law.

The figures indicate that just less than $12,500 has been spent on average, per applicant, on the outstanding applications. The figures reported relate only to those residents who have applied for PR status after living for eight years in the Cayman Islands. They do not include non-Caymanians who are married to a Caymanian and who have applied for a residency and employment rights certificate.

According to information provided by the Immigration Department, none of that cash is being held “in escrow” – in other words, in a specified, ring-fenced fund – for withdrawal at a later date. The money paid has gone into the government’s general revenue.

“The fees are not paid into a fund account, but accounted for as unearned revenue until the applications can be dealt with,” an Immigration Department statement sent to the Cayman Compass on Wednesday read.

Unearned revenue means that while the application fees have been collected and placed in government general revenues, the same money is subtracted from the liabilities side of the ledger. Essentially, the government carries the money from the residence applications as an ongoing liability to be paid back out of the general revenues when required.

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The government has posted budget operating surpluses of more than $100 million in each of the past three years, and currently maintains more than 90 days’ worth of operating cash on hand.

Precisely when either the Immigration Department or the Caymanian Status and Permanent Residency Board will hear any of the outstanding applications is still not known, due to ongoing legal difficulties associated with the points system used to award such grants.

The Cayman Islands government has neither approved nor rejected any permanent residence applications under the current Immigration Law since at least January 2015. The government has blamed the state of uncertainty over the applications partly on an August 2015 ruling by Chief Justice Anthony Smellie on the permanent residence applications of two non-Caymanians.

The issues identified in the 2015 court judgment dealt with two major areas: First, the actions of the Immigration Appeals Tribunal in judging two cases in which the non-Caymanians, a Canadian and a Jamaican, had applied for permanent residence. The tribunal’s actions in the cases were determined to be a “miscarriage of justice.” Those applications were made under a former version of the Immigration Law. The two applicants were granted permanent residence following a re-hearing of their case before the tribunal.

The second matter involves the current permanent residence system and how points toward that status are awarded to applicants. Currently, applicants are required to secure 110 points out of 215 available in the application process. Questions have arisen regarding how 15 of those 215 points are to be awarded in the process.

Chief Justice Smellie concluded in the judgment that there were “immediate and obvious concerns” about the current two-tiered system for awarding permanent residence applicants a total of 15 points for their occupation and another 15 points if their job is considered a “priority occupation” according to regulations attached to the Immigration Law.

Premier Alden McLaughlin has said on a number of occasions that he would reveal government’s proposals to deal with the issues described by the chief justice, but to date he has not done so.

Since the chief justice’s decision was released 17 months ago, a number of legal challenges involving individual grants of permanent residence have been filed and two key cases are soon to go before the courts. One involves a funds manager who has alleged in a judicial review filing that government has placed an “unlawful moratorium” on permanent residence applications after it failed to hear his application from June 2014.

A second case involves an accountant who has received permanent residence, but who has pursued a case against the government for monetary damages after it took three years for his application to be heard.

In a speech at the Grand Court opening ceremony on Wednesday, Caymanian Bar Association President Abraham Thoppil advocated for a solution to “the plight of many hundreds of expatriates.”

“The implications for them, their families, our society and our wider community are potentially extremely negative,” Mr. Thoppil said. “It is hoped that the new year will find appropriate relief and that the due functioning of our immigration regime and the fulfillment of its difficult but very necessary task can recommence.”

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