A delay of more than three years in processing permanent residence applications has left more than 900 people, plus an unknown number of their dependents, in limbo. Among them is Peter, whose empty closets and bare shelves lend a transient atmosphere to his Grand Cayman apartment, despite his having lived in the territory for 11 years.

The contents of his 500-square-foot space could fit in a suitcase, leaving little evidence of an established life here. He has learned to hold on to very little, and to expect even less from the Cayman Islands government.

Like many of the islands’ 918 permanent residence applicants in waiting, he has developed a plan B for an alternative life off island.

After more than two years of waiting on approval of his $21,000 application, he has had time to prepare for the worst – rejection of his petition and an abrupt end to his time in Cayman.

While Peter considers himself a strong applicant for residency – bolstered by dual property ownership, volunteer work, knowledge of local history and culture and an in-demand professional title – he knows anything could happen.

“I could pack up a suitcase and go in a matter of two weeks because I know I might have to,” he said. “I’m not worried because I’m resigned to it now. I’d be an idiot to imagine that it is definitely going to go smoothly. So I’m ready for it. I’ve prepared my life. I’ve gotten rid of a whole load of possessions. I’ve sorted myself out.”

Peter, a property professional, spoke to the Cayman Compass only on the condition of anonymity, knowing that on a small island it is easy to upset the wrong people and damage business relations. He also fears reprisal from the government, whose immigration board holds power to deduct applicant points and potentially disqualify him from obtaining residency.

Holding pattern

For three years, Peter has been aware of immigration authorities putting applicants and their families on hold, as government fails to implement the points-based system introduced in October 2013.

“If they are not going to allow people to have basic human rights here, which is the situation we’re in, then they should not allow people to come in the first place,” he said.

Peter’s story echoes across the islands, as applicants and their families decide whether to wait patiently or choose to move on.

The Compass has been following issues surrounding the permanent residence process since long before the Progressives government created the current incarnation of the Immigration Law in 2013. Over the past month, we have conducted a deeper examination of the subject, questioning experts, interviewing observers and gathering stories from PR applicants who, when they would talk, would do so only anonymously, or refused to allow their comments to be published. The anticipated reward for going public is nonexistent. The threat of repercussions, on the other hand, is very real, they believe.

RELATED EDITORIAL: PR ‘point system’: Butchers, 11 points; Surgeons, 8 points 

RELATED STORY: Permanent residence legal challenge granted court hearing 

Legal implications

Delays in the PR process have created a litany of issues for employees and employers alike, not to mention the immeasurable economic impact of the situation.

HSM law firm attorney Nick Joseph said that when the new Immigration Law was announced in 2013, he hoped it would remove the vagueness and far-reaching discretion that plagued previous regulations, as well as quell the fears of nepotism they had produced.

“I certainly viewed [the 2013 law] as an improvement, subject to guidance notes. The expectation was that areas of concern would be clarified in some form of notes or other guidance as to what was intended and what expectations were in particular areas,” he said.

By looking at factors like profession, education, investment in the community, property ownership, age, cultural knowledge and wealth, the Cayman Islands government had hoped to implement a points system that would evaluate applicants on their potential community value. Under the policy, applicants strive to achieve a minimum of 110 points to earn residency. Cayman officials looked to similar systems in Bermuda, Australia, New Zealand and Canada for guidance. A major difference, however, is that those governments have used their guidelines to process foreign applicants. Cayman’s government, on the other hand, has been mired in indecision and interminable delays.

Of the 918 permanent residence applications filed under the October 2013 law, not one has been approved.

As a result, attorneys are unable to advise their clients on how approved applications are evaluated. Deliberations of the Caymanian Status and Permanent Residency Board have remained private.

Over a period of weeks, the Compass contacted the office of board chairman Waide DaCosta no less than eight times via email or telephone for comment on this story. However, he did not respond.

The Ritch Report, a consultancy review commissioned by government from law firm Ritch & Conolly, examined various aspects of Cayman’s permanent residence system. The $312,000 report has been deemed legally privileged information not subject to public release.

Uncertainty for employers, employees

Mr. Joseph described a dangerous economic environment in which uncertainty rules the day.

“We do face the reality that there are employers in the Cayman Islands that, despite having waited now for some years, have no clear belief or understanding as to whether they are going to be able to retain their existing staff,” he said. “On top of that, we do face a very awkward situation in relation to people who are looking to advance in their careers …. They are unable to avail them of those career prospects simply because, as the law is written now, no one who has passed their nine-year term limit can in any way change their occupation.”

HSM client Mark Edmunds, who applied for permanent residence in June 2014, was granted leave last week for a judicial review to be carried out into his case, an initial step in challenging excessive delays under the 2013 law. His case was filed on the heels of another case, in which the applicant, Bradley Carpenter, waited three years for his application to be heard under the old Immigration Law.

A judge has allowed Mr. Carpenter’s case to proceed to a full hearing, where there is the possibility for him to pursue monetary damages.

The Carpenter case was set for an administrative hearing Friday, Feb. 17.

As cases have entered the courts, Samson & McGrath associate Daniel Altneu said he has been approached with questions about what such litigation could mean for other applicants. Since the courts and the immigration department have been largely silent on answers, he says he has been stymied in offering proper guidance.

“We don’t know how these applications are being judged. There is internal documentation that is not being released,” Mr. Altneu said.

‘Priority occupations’ holdup

One major point of contention has been the priority occupations list. While the 2013 policy provided for the creation of such a list, in which individual occupations can gain up to a maximum 15 points, no list has been produced. The priority occupations category was created ostensibly to increase the number of potential points applicants in lower-income but professionally necessary jobs could earn.

The “priority occupations” list is separate from the “occupations list,” which also allocates up to 15 points for individual occupations.

Another HSM attorney, Alastair David, said that the lack of information flow has led attorneys to turn to political rumors rather than firm policy points.

“One of the problems we have when advising clients is whilst we will hear rumors and don’t normally pass those on to clients, because they are only rumors, the only information we get in regards to the system comes from politicians making certain pronouncements in the media,” Mr. David said.

Such announcements have kept applicants hopeful, but waiting nevertheless. Promises to release information in the fall have inevitably been extended to winter, then spring and so on, onto the next year, and the next.

Toll on employees and their families

Mr. David points to human rights concerns that come with such long delays. Applications are not just files waiting to be sorted, but represent the real aspirations of families who have created a life in the Cayman Islands.

Many applicants have spouses and children who have also been forced into the waiting game.

“No one seems to think of the dependents,” Mr. David said. “A lot of these kids consider Cayman their home. The longer they are here, the longer those bonds become stronger.”

The biggest challenge for many PR applicants can be planning for their families, despite their uncertain future, said RE/MAX real estate broker James Bovell.

“Parents are driven by the opportunity not only of what Cayman has to offer, but also their concern for their children and the lifestyle they are going to live,” Mr. Bovell said.

“As you can imagine, people are looking very far out. So when you hold up someone getting their PR for years at a time, they are unable to make any other decisions on their investments, on their movements. They have to stay still. They are basically caught in limbo.”

Families who are unable to wait indefinitely may have to make the difficult decision of uprooting their lives once again and leaving Cayman for good.

“It’s because they have no security. They say, ‘I can’t wait another six months because I’ve got to get my kids into the school system and it’s coming up on July now and I have to get them ready for September schooling,’ or ‘I’ve got a kid in high school with exams coming up and they’ve got to get ready for their exams because if I don’t position them correctly now, I’ll be moving them in an exam year,’” Mr. Bovell said.

He said he has seen a number of families sell their properties and leave Cayman as a result of such uncertainty.

One concerned mother wrote anonymously to the Compass to express the difficulties her family faces, following years of indecision on her residency application.

RELATED STORY: Chief justice: ‘Ritch Report’ must remain confidential 

RELATED STORY: No permanent residency approvals granted in 2015 

“My eldest is four and should be starting school next year and, as any parent knows, getting into school is not straightforward. Their name should be on a list years in advance of the start date, but when you do not know where you will be living or when you have to make that move, where do you put their names?” she wrote.

Rather than uproot her family’s life of 10 years, she still holds hope for a future in Cayman, but the sting of the insult remains.

“We have respectfully adhered to all of the immigration procedures and rules over 10 years, and are happy to continue to do so, but you promised us if we met X, Y and Z, we would be given permission to continue working and contributing and promoting this country. Yet you’ve reneged on your promise. It feels like a slap in the face!” she said.

CML Recruitment founder Steve McIntosh has witnessed similar frustrations among his clients, who have been left to feel like second-class citizens in a community where they have invested a great deal of time, energy and money.

“They are incredibly frustrated and rightly so, because for the most part, these are people who are very senior and very invested in the Cayman Islands,” Mr. McIntosh said.

“They almost invariably have a family and they don’t know if three months from now, six months from now, a year from now, if they are going to have any entitlement to reside here. That’s an incredibly stressful position to be in, and there are many ways in which PR applicants are treated much worse than regular work permit holders, which is bizarre.”

Property investment concerns

Frustrations are exacerbated by the system’s investment category. By purchasing property or investing in a locally licensed business, applicants can earn up to 30 additional points.

Mr. Bovell said many applicants bought property under the premise that it would improve their chances of being granted permanent residency.

“Otherwise they wouldn’t have gone down that process. To buy real estate in Cayman is not inexpensive, especially with up-front costs of stamp duty. People applying for PR don’t have the benefit of stamp duty [being waived]. They have all of those costs up front,” he said.

Even after such purchases are finalized, PR applicants in waiting face the anxiety of potential rejection. While the government may take years to respond, rejected applicants have just months to wrap up their lives and leave. Rejected applicants who do not have the means to rent out their property face quick decisions and quick sales.

“How can someone uproot themselves in 30, 60 days? Their PR has been denied,” Mr. Bovell said. “They’ve got to sell their real estate. They’ve got to pull their kids out of school. All of these different things are going to have to happen as a result of being denied.”

Employer burden

Businesses suffer as well from such delays, whether it’s from loss of talent or loss of revenue.

Permanent residence applicants and their employers are put in an awkward situation as they negotiate who will take on the often large application fees. Employers are not obligated to pay fees for permanent resident applications, and the costs can be quite high for individuals to take on alone. Following the changes made in 2013, these fees must all be paid up front to avoid a buildup in unpaid costs as seen in the past.

Mr. Altneu, the Samson & McGrath attorney, described a client who paid $45,000 up front due to her high earnings and three dependents on her application.

“You have your $1,000 non-refundable application fee, but on top of that you have to pay your annual work permit fee, your issue fee depending on your salary, and your dependents’ fees,” Mr. Altneu said. (The “issue fee” is 5 percent of the applicant’s annual salary.)

Six-month work permit extensions

People are allowed to live and work in Cayman for up to nine years on the basis of annual work permits. Following their eighth year in Cayman, they can apply for permanent residence; otherwise they must leave the territory at the end of their ninth year.

Once a permanent residence applicant has been on island nine years and his or her “final” work permit expires, that person can apply for a Permission to Continue Working permit once the PR application has been submitted. This is effectively a six-month temporary work permit. This means that every six months, the employers of applicants-in-waiting are required to pay the equivalent of half an annual permit fee.

The applicants are also required to get new blood tests and acquire police clearances every six months as part of that process. Applicants who applied for permanent residence three years ago would by now have submitted and been granted six Permission to Continue Working applications. If the PR application is ultimately turned down, the six-month permit discontinues immediately and applicants are required to leave the island within 90 days, unless they appeal.

If residency is eventually denied, the PR application fees paid to immigration (but not the cost of supporting documents) are returned to the applicant. Companies that assume those expenses take on the risk of paying substantial personnel costs with no promise of employee longevity.

“For a small business, this is a ridiculous sum of money. For mine personally, it would have been potentially $70,000, which is the same whether you are CEO of a three-man outfit or of a bank,” Mr. McIntosh said.

Job titles

Mr. McIntosh also described the arbitrary nature of job titles in the system. With no job descriptions in place, titles have no true substance. Applicants are required to maintain their job titles, preventing mobility within and among companies.

“We’ve had clients who haven’t been able to move from one job they are perfectly qualified to do to another job they are perfectly qualified to do because in one company their job title is vice president but in another company the exact same job would be associate director. And immigration says, ‘No, you can’t change,’” he said.

He used the example of his wife, who was granted permanent residency under the previous immigration law. She felt qualified to take on an administrative job at the YMCA, given her background in administration and fitness. Despite the relatively low pay, she was drawn to the opportunity to work in a community-oriented position.

“She could not because her permanent residency is under the title of fitness instructor. So she could not take an administrative role. So we had to apply to the permanent residency board and waited six months for that to be approved,” Mr. McIntosh said.

In the meantime, the job went to another applicant. He has witnessed similar barriers put before his clients, who are bound by meaningless titles.

“You get pigeonholed as a PR holder and it is very difficult to change. And the crazy thing about this is, if she were someone who had just walked up on the island, she could have got a work permit to get that job in 48 hours,” he said.

PR applicants who have lost their jobs while awaiting approval are in a particularly precarious situation. They must find a new job with the same title they once had, but cannot assure employers of their security of tenure. Employers willing to take them on run the risk of losing them if their PR application is rejected.

Likewise, those who maintain their jobs are often blocked from accepting a promotion while waiting on approval, creating stagnation not only in their career, but also for their company.

Lack of confidence in government

Effectively, the upshot has been a loss of faith in the government among many members of the community. Not only do employers and employees lack insight about their futures, but they also feel intimidated and hesitant to speak out, Mr. Altneu said.

“Because the immigration status is so precarious here, do you really want to be riling the government like that? Do you really want to be the person who is taking them on? If it were possible to do a class action or something like that, that’s different. It’s less personal. But to be the person that they hold up that this guy should have been granted PR … it’s not really going to endear yourself much to the government or to the locals,” he said.

Applicants who fear reprisal are forced into silence and the bureaucratic waiting game.

Even those with strong applications, steady employment and every reason to expect approval have backed away from public criticism. Applicants like Ryan, an accountant who lives in Cayman with his wife and children, speak only on the condition of anonymity.

“Everybody knows everybody here, really. Six degrees of separation in Cayman is one degree of separation,” he said.

He considers himself a shoo-in under the 2013 law, and he rushed to submit his application last year to avoid being blind-sided by another policy change. He said he has done extensive volunteer work in Cayman out of sincere interest in the community.

“I’ve done quite a bit of volunteer work. I never did any of that for PR. I did it because I wanted to do it and it’s my lifestyle. You help people out,” he said.

He believes he is the type of applicant the Cayman Islands should want to retain, even if he has lingering doubts about Cayman’s interest in retaining its expats.

“I’ve done stuff for the country because that’s what I wanted to do. That’s the type of people they want to have here. They set up the whole process, in my opinion, to keep out people who aren’t contributing to society. Well, that’s not my case, I don’t believe,” he said.

“I am not a detriment to society. I’m a help. I’m the kind of person Cayman should want.”

In his words: What Premier Alden McLaughlin has said about PR

June 2011 – parliamentary debate on the budget

Premier Alden McLaughlin said, “The rollover policy has succeeded in its objective at considerable social and economic cost. Eight years after it was introduced, there is still widespread dissatisfaction with its workings and its effect, both within the immigrant population who are subject to it, but also among Caymanian employers.

“It also causes employers to lose good, experienced employees at the stage when they are at optimum value to their employer. We believe that the time has come for the Cayman Islands to abandon the rollover policy in favor of a more business-friendly, socially-acceptable and equitable policy.”

“Not everyone who applies for permanent residence can expect to be granted it. But we should not set the bar for permanent residence so high that only professional and managerial persons can ever hope to achieve it. Nor should we set it so low that just about anyone will qualify.”

Sept.-Oct. 2013 – Progressives propose a 9-year ‘rollover’ and change to PR requirements

According to the major tenets of the plan, the current seven-year term limit on non-Caymanian workers’ residence in the islands, often referred to as the “rollover policy,” was scrapped and replaced. A nine-year term limit is put in its place. The new law was approved by legislators in late October 2013.

“It is certainly going to be more difficult to get permanent residency under the new regime, more difficult than it was than under the old regime,” Premier McLaughlin said.

Sept. 2015 – ‘further work’ needed on Immigration Law

In response to a decision by Chief Justice Anthony Smellie the month before, Premier McLaughlin announces a consultant’s review of the rules surrounding permanent residence application:

“[It] is not meant, or intended to be, a wholesale review of the legislation. The government is cognizant of the need to have all outstanding applications and appeals dealt with in a timely manner.”

June 2016 – Debating opposition members

In response to opposition independent members of the Legislative Assembly advocating that Cayman abolish its ‘path to citizenship’ for non-Caymanian workers without close family ties to Caymanians.

Premier McLaughlin said, “It will not help us to think we can put up walls and close our doors. This type of thinking is regressive and, if ever implemented, will do real harm to Cayman and Caymanians.”

Oct. 2016 – Chamber of Commerce speech

Premier McLaughlin explains why he had not released the immigration consultant’s report, done by the law firm Ritch & Conolly.

“There is no sinister reason for the advice remaining confidential at this stage,” Mr. McLaughlin said, adding that “relentless” attempts by the Cayman Compass to obtain the advice through an open records request had made it more difficult for him to even discuss the matter publicly. “All I can do is crave the patience of those awaiting their applications to be processed. The government takes this matter most seriously.”

Jan. 2017 – announcing upcoming changes to PR rules

“There is no easy fix for this. The root of the issue goes back to systems and processes that have been in place from the introduction of the points system in 2004. This has been a vexing issue, not just for those impacted, but for me and the government. However, we continue to be committed to finding a solution that is fair to all concerned and get the process moving again,” Premier McLaughlin said.

Editor’s note: Applicants’ names have been changed to protect their identity.

Compass journalist Brent Fuller contributed to this story.

0
0

4 COMMENTS

  1. The Compass must be resigned to having their phone calls/ e mails go unanswered – this is standard practice in the Civil Service which considers they answer to no-one. The message I left with Customs a week ago concerning the problem at Owen Roberts on Feb 9th has still not been returned.

    24

    0

LEAVE A REPLY