An “invisible hand” appears to be blocking attempts to address years-long delays involving hundreds of applicants for permanent residence in the Cayman Islands, as the processing of the applications has again “stagnated,” according to attorneys from a local law firm. HSM Chambers lawyers had hoped the award of permanent residence grants to two applicants the firm represented last month would “get things going” in the hearing process for between 900 and 1,000 non-Caymanians who have sought – since October 2013 – to remain in the islands for the rest of their lives.
However, last Thursday marked 28 days since those applications were granted and about three months since government updated the permanent residence “points” system – ostensibly to allow the backlogged applications to be processed.
“Despite our best hopes and aspirations, the position has again stagnated,” HSM Partner Nicolas Joseph wrote in a letter to firm clients Friday.
“Three months have passed since the updated regulations confirmed the availability of 15 points for each and every occupation, and public pronouncement made that all barriers to the consideration of applications … had been removed,” Mr. Joseph said. “We do not know what such barriers ever were to the great many applicants clearly always scoring well in excess of 110 points.”
The Legislative Assembly changed the permanent residence grant process in October 2013 to make it more difficult for non-Caymanians who were not married to a Caymanian or who did not have close family connections to remain in the islands. Under that new system, all applicants who had been continuously resident in Cayman for at least eight years were to be judged on a number of areas, including employment, salary, age, community involvement, investment in Cayman, nationality and education, among others.
A few applications were heard early in the process, but none was approved and legal uncertainty over how points for employment categories should be awarded have held up all residency applications since at least January 2015.
Two people who applied for permanent residence under the current system, financial services professional Mark Edmunds (applied in June 2014) and accountant Derek Larner (applied in December 2013), were awarded that status under threat of significant damages claims against the government over delays in hearing their applications.
Those men and a third claimant, accountant Bradley Carpenter, who sought residence under the pre-October 2013 residency application system, are still pursuing damages claims because of the lengthy delays in considering their applications.
There were other permanent residence applicants who filed for that status before Mr. Larner and Mr. Edmunds, but it appears the government took those two men “out of turn” as a result of the litigation they had filed.
Mr. Joseph suggested in his Friday letter that a number of other permanent residence applicants might have to take the same path in order for their matters to be heard.
“Although clear utterances have been made that applications are being progressed, and even that requests for updates are being sent out, we have seen no actual evidence of this,” he said. “For reasons that we do not know, it appears clear that no actual progress is being made in relation to anyone’s applications.
“There seems to be an ‘invisible hand’ preventing progress,” the letter stated. “Whose it is, and where they sit, is yet to be understood or determined.”
The letter outlined the steps HSM clients might take to engage in a class action lawsuit against the government, first by having the firm write a letter to the relevant authorities on their behalf, then filing for judicial review before the Grand Court if the letter is not answered within a certain time.
Once the matters are all filed, the attorneys would seek to have them “joined” together – which could serve to reduce the costs of making such an application. Damages claims would likely have to be heard on a case-by-case basis, since all applicants are in a different personal situation, Mr. Joseph said. “Each time that someone has had their PR application considered, it has regrettably been on the eve of a court hearing,” he continued in the letter to clients. “Litigation is not to be taken lightly. Nevertheless, we are aware that many of you are anxious to have your applications considered.
“[The applicants] … are suffering the impact of the ongoing delays to varying degrees. Some have children crossing important threshold ages, while others cannot progress in your careers. Others of you are managing or are employed in businesses who now sadly are placing personnel in other jurisdictions in direct response to the circumstances, and expansion opportunities in Cayman are being lost.
“Even without such considerations comes nagging uncertainty, and the seemingly irrational, unreasonable, disproportionate, and therefore of questionable lawfulness, six-month blood checks and police record requirements, with associated expense and disruption.”
The HSM letter of Friday put an emphatic point on the enormity of the problem Premier Alden McLaughlin faces in trying to revamp the immigration/employment process during what he has said would be his final four-year term in office.
Mr. McLaughlin will head a new Ministry of Human Resources, which will combine the government departments of Immigration, Labour and Pensions.
“There are significant problems there on a whole range of [immigration/employment] issues,” Mr. McLaughlin said last week. “From leadership, personnel issues, obviously issues with permanent residence, issues with the speed and efficiency with which work permits are dealt with. We’ve got to sort out immigration generally.”
Mr. McLaughlin did not give any indication of when his government might delve into the issue of permanent residence awards, but he made clear during pre-election debate appearances that this would have to be done.
“We do have to make significant changes to the points system and the way points are awarded and determined,” Mr. McLaughlin said during a late April Red Bay candidate forum at Mary Miller Hall. “It is a critical issue. It is very important to Cayman long-term. The work is already under way by my administration to resolve the issue.”