Immigration lawyer warns of ‘ludicrous’ backlog for status and PR applications

At the rate status applications currently are being processed, a person applying now for the right to be Caymanian through naturalisation would not get through the system until 2032, according to immigration specialist lawyer Nick Joseph.

As of 29 Nov. last year, 549 applications for the grant of the right to be Caymanian (also known as ‘status’) on the basis of naturalisation were outstanding. There were another 239 applications for status on the basis of marriage awaiting processing.

Joseph, in the last of his regular updates on the immigration situation in Cayman to his clients at law firm HSM, noted that in the entirety of 2023, only 127 such applications were processed – 63 based on marriage and 64 based on naturalisation.

“At that rate, those applying today on the basis of marriage can expect their applications to be determined in around 2028. Those applying on the basis of naturalization will be looked at in around 2032. Of course, this is ludicrous,” said Joseph, who has resigned from HSM, effective 28 Jan.

‘Likely unlawful delays’

“We are already in a position (and have been for many months) that the delays in the processing of status applications are very likely unlawful. Some of you and your employers are suffering expense and other indignities, not in consequence of you not qualifying for the permissions sought, but rather because of likely unlawful delays in the consideration of your applications.”

He noted that the Caymanian Status and Permanent Residency Board, so far as HSM could tell, had not considered and determined a single status application since September last year.

The board effectively became defunct that month when the majority of its members’ terms expired. A new board was appointed in December, with restaurant owner Tony Powell taking over as chairman from attorney Steve McField, who now heads up the Immigration Appeals Tribunal.

Joseph pointed out that there is now a 22-month backlog in processing applications for status on the basis of naturalisation and marriage.

“Whatever happens next, we are expecting the backlog to cross the two-year mark,” he said.

Permanent residency

There is also a backlog in permanent residency applications – of around 14 months. Those points-based applications can be processed by Workforce Opportunities and Residency Cayman, but some do go through the Caymanian Status and Permanent Residency Board. Joseph noted that no points-based permanent residency applications had been processed by the board in the past two years.

“Director of WORC, Jeremy Scott, and his valiant team, have continued to do what they can in relation to applications for Points-Based PR,” Joseph said. “Processing times now stand at around 14 months. There have been recent significant advances. Several of our clients have had their applications granted within 12 months of applying. Notwithstanding the significant ongoing pace of fresh applications, Mr. Scott and his team appear to now be processing applications faster than new ones are being filed. Any such feat is commendable,” Joseph said.

Government has indicated that it intends to change the existing points system for permanent residency, but nothing has been announced in that regard.

Joseph stated, “The Department of WORC continues to be without clear, comprehensive, policies necessary for the proper interpretation and application of the points-based system used for PR. … The improvement in quality of deliberation and decision making by the Department over recent months has been clear and is continuing.

“Nevertheless, the fact that those making life (and jurisdiction) changing decisions have not been equipped with the tools (including policies to aid in consistent interpretation and legislation that meets constitutional expectations) that they need is (and will always have been) lamentable.”

HSM has won more than 150 immigration-related appeals in recent years, he said, describing the exercise as “usually unnecessary”, “tiresome” and “expensive” for all involved.

‘Ghost constituencies’

Years-long delays in processing status applications means that individuals who have lived in Cayman for more than 15 years are denied the right to vote in local elections and referenda, which they would be entitled to have upon the granting of Caymanian status.

The number of people with outstanding status applications – 788 as of 29 Nov. 2023, and it is likely larger by now – is higher than the number of voters in some of Cayman’s constituencies.

Joseph describes this phenomenon as “Ghost Constituencies”, involving “fundamentally qualified voters who may be excluded (ultimately unlawfully) from the electoral process”.

While insisting he is not advocating that everyone must have their status granted – “Some may quite properly be refused”, he said – but it is the “refusal to make determinations one way or another which is abhorrent, and now sadly exposes the government of the Cayman Islands to potentially significant liabilities as the numbers of victims of potentially unlawful treatment grow, day by day.”

He added, “One of the benefits of being Caymanian is the right to vote. Let there be no doubt. Your inconvenience (and that of your usually Caymanian employers having to pay what now amounts to millions of dollars of work permit fees that ought not be due), whilst significant, is a lesser problem than the prospect of a thousand persons being improperly prevented from registering to vote and participating in the electoral process.

“The numbers are material and has a very real potential to impact the results of any election. That is an affront to more than pocketbooks. That is an insult to our concept of democracy, and the principles which underpin it.”

Tools to deal with backlog

He is calling for the newly appointed Caymanian Status and Permanent Residency Board to be equipped with “the tools, resources, and mandate necessary to clear any backlog within the next 12 months. Thereafter, set a mandate that, save in exceptional circumstances, ALL immigration applications should be processed and determined within 6 months of application. The money exists. Well over CI$100 million in immigration revenue alone.”

Joseph described lawyers watching this situation play out “with bemusement and frustration”.

He advised clients, “Yes, you can sue. Yes, you will probably win (in a year). Will it be worth it personally, professionally, and economically? Maybe, but maybe not. Whilst the judicial/appeal processes do function with the highest levels of integrity, one cannot rule out circumstances where the fact of accusing a Board or individual of unlawfulness could have adverse consequences.

“There may be freedom of speech, but (no matter how inappropriate this caveat may be) there is no freedom from the consequences of the (however proper) exercise of that speech. Perhaps if there were suitable policies and clear guidance, things would be different.”

Growing field of permanent residents

Noting that there are around 6,000 permanent residents in Cayman, he said clearing the existing backlog of status applications “will not really make a dent” as “it is easy to anticipate the prospect of around 1,000 new applicants for the Right to be Caymanian every year going forward”.

He added, “The new Board and Secretariat need to be ready. It appears they could easily be facing 5 new applications for the Right to be Caymanian every weekday for the next decade, just based on the current numbers of persons who are becoming qualified following years of widespread exemptions from term limits and a lowering of key barriers to settlement here. We have long warned of the consequences. Ready or not, here they come…”