Cuban refugees petition for marriage rights in Cayman

Customs law fails to consider spouses in asylum provisions

As the Cayman Islands debates the meaning of marriage and partnership, Cuban refugee families have been fighting for their own right to family life.

At least three Cuban adults who successfully petitioned for asylum in Cayman have been denied the ability to add a spouse as a dependent to their immigration status, due to the wording of the Customs and Border Control Law (2018). The denials have resulted in an indefinite legal headache for families and fears of separation from loved ones.

The issue arises from section 111(3) of the law, which establishes that successful asylum applicants may add to their status a dependent child under the age of 18 who is already present on island. The section does not include mention of a spouse, a legal issue that Customs has been aware of for more than a year. Customs and Border Control did not respond to requests from the Cayman Compass for comment.

In April 2019, one affected asylum grantee, D. Martinez, formally contacted the Ministry of Human Resources and Immigration, and later the Human Rights Commission, to explain his situation.

“To date, [Immigration] have not been able to determine with a legal argument the way my wife and son can stay on the island,” Martinez wrote the commission.

“Immigration asked me to request a work permit [for] my wife to solve the problem, explaining that they are not clear about the solution. … They recognise that certainly by human rights law my family must be by my side but [they] do not have a law that supports [that].”

While the Human Rights Commission has advised that asylum grantees are required to be treated equally to nationals, refugees remain in a separate category, which includes distinct identification documents, that sets them apart from Caymanians, permanent residents and work-permit holders.

“The Commission considers there to be a prima facie conflict between [section 111(3) of] the law and s. 9 of the Constitution – Right to Private and Family Life, as well as the United Nations Convention relating to the Status of Refugees, of which Cayman is a signatory,” wrote former HRC chairman James Austin-Smith to Wesley Howell, assistant director of Customs and Border Control, in May 2019.

“As it stands, the Commission considers that should the Law be challenged in court on the basis that it is unconstitutional, such a challenge would be successful.”

In an email to the Compass on Thursday, the commission confirmed that amending the law to comply with the constitutional right to family life remains a legislative concern.

“The HRC has repeatedly been assured by the Ministry of Employment and Border Control that a relevant proposed amendment to the Law and related policy are on the Ministry’s legislative agenda,” the email said.

Premier Alden McLaughlin, the minister who oversees the matter, did not respond to a request for comment. The Governor’s Office indicated it was consulting with Attorney General Samuel Bulgin on the issue, but a response had not been provided by press time on Thursday.

A Cayman asylum grant stamp, which establishes the right to reside and work in Cayman.

‘We don’t want handouts’

In the meantime, spouses of asylum grantees remain stuck on repeatedly extended visitor visas that do not permit them to work or seek benefits.

Another affected refugee, A. Serrano, explained that he has been with his wife for seven years, more than two of which have been spent fighting in Cayman to reunite their family, including a daughter in Cuba.

Serrano, who was granted asylum in Cayman in March 2018, brought his wife to join him on the island in December of that year. Since then, she has remained on a visitor visa, with no route provided by government to become legally established as a resident alongside her husband.

The denial of her residency has forced the couple – and other affected Cuban families – to rely on a single income, complicating their efforts toward establishing financial independence in their new country.

“We don’t want handouts,” Serrano explained. “We want them to respect our rights.”

His wife’s inability to work legally has been just one financial stressor for Serrano, who lost his job at Margaritaville, currently under investigation for non-payment of pensions, earlier this year. Like other Cuban asylees, he has discovered that holding refugee status can complicate or delay qualification for social-welfare programmes, such as relief payments offered to Caymanian tourism workers or support provided through the Needs Assessment Unit. Cuban refugees do not qualify for rental support in Cayman, for example, as they are not considered Caymanians.

Refugees described further issues with public offices not recognising the identification documents provided to them by the Cayman Islands government. Others said their Cayman Islands IDs had been turned away by local banks, the airport and other entities, unfamiliar with the handwritten government documentation provided to them.

The barriers to find work and carry out basic tasks have made assimilating to life in Cayman all the more difficult for refugees.

“Who am I here?” asked one man. “You’re not Cuban. You’re not Caymanian. You’re not anything.”

Note: The Compass is not using the refugees’ full names out of consideration for their families in Cuba.

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