Cayman’s permanent residency points system is riddled with so many loopholes that it is not working effectively, according to one of the islands’ top immigration lawyers.
The points system fails to differentiate between applicants according to any meaningful policy framework, said Nick Joseph, founder of Reside Cayman. For example, he said a brain surgeon and a bus driver can get equal points for their education and employment under the current system.
The points system was meant to help provide a filter to decide which long-term residents would be able to stay on island permanently, putting them on a pathway to Caymanian status.
From its inception, the intention was to prioritise those who performed vital jobs in the economy, had the funds to ensure they were not a burden to government in the long term and had integrated into society.
However, it is largely failing to perform that function or to differentiate between applicants according to any meaningful policy plan, Joseph believes.
Two-thirds of applicants are successful
Around two-thirds of permanent residency applicants in Cayman are successful at first attempt under the points-based application system, according to data from a freedom of information request.
That compares with a 95% success rate for applicants who are spouses of Caymanians, the other main residency category.
The Workforce Opportunities and Residency Cayman statistics show that almost 1,564 people applied for PR across a range of categories, of which 1,313 were successful. The vast majority of those who get PR, go on to be granted Caymanian status, as indicated by separate FOI data.
The statistics, obtained by immigration lawyers, help illustrate some of the issues with the current system, particularly the process for those applying for permanent residence on the basis of long-time residency in the Cayman Islands.
Amid a growing debate about immigration reform following the publication of a government white paper, Joseph, an immigration lawyer and consultant, suggested a positive first step would be tweaks to the current system.
He said, “The points system does not operate, and never has operated, as intended. It is failing in its primary purpose – to choose between applicants.”
Alastair David, a partner specialising in immigration with HSM Chambers, agrees that the points system is not working effectively.
But he said the fact that 195 applications were refused last year suggests it is operating as a filter of some kind.
Where the system falls down, David said, is that it lacks a coherent underpinning policy document that properly sets out its aims and how it will achieve those aims in a consistent and non-arbitrary manner.
“It is hard to say if it is achieving what it sets out to do because that has never been properly articulated and there are inconsistencies in how the system operates and the decisions that are made,” David said.
Points for all?
Joseph argues that many of those who don’t get enough points at the first instance go on to gain PR following an appeal.
He believes minor flaws in design have led to the abandonment of many of the principles of the points system.
Points awarded for employment, education and savings, for example, contain so many loopholes that almost every applicant has the potential to achieve maximum points in many of the categories.
The law requires applicants to gain at least 110 points across nine different categories ranging from community involvement to occupation.
How those points are assessed and awarded can be counterintuitive.
On employment, for example, everyone gets 15 points because Cabinet never established a workable system for differentiating the value of different jobs.
“It makes no difference whether you are a special needs teacher or a dive master, a janitor or a brain surgeon, you get the same points,” Joseph said.
The points system includes two distinct categories for ‘occupation’ and ‘priority occupation’, each worth 15 points. The first was designed to be a sliding scale that awarded higher points based on the need for certain positions or the niche skill set requirements of some roles. The second was intended to allow government to incentivise certain jobs of high value to the economy or to society.
However, a landmark court decision in 2015 indicated the way in which government was allocating points at that time was “opaque and arbitrary”.
Since then, everyone who is employed has been awarded 15 points in the first category and everyone gets zero in the second category.
Education and savings
Other categories are seemingly not selective enough, Joseph added.
On education, for example, a ‘local licence’ brings in the same points as a postgraduate degree.
“Again the brain surgeon gets the same points for their education as a security guard or a bus driver for theirs,” he said.
The savings category, designed to ensure permanent residents have the finances to support themselves, is also not acting as intended because points are awarded based on a percentage of earnings over the past year.
“An unemployed person with a single dollar in their bank account gets the same maximum points for their savings as a successful executive with $1 million in theirs,” Joseph said.
The system also has no mechanism for sufficiently requiring that applicants have funds for healthcare, education, accommodation and maintenance.
While he supports the simplification and reform of Cayman’s immigration laws, Joseph claims many of the issues confronting Cayman would be lessened with a proper application of existing legislation.
He added, “If government is seeking to control the numbers of people applying to become Caymanian, it can do so by properly implementing the intended filter of a fair, transparent and robust points system, ensuring that it is written and applied in a manner which serves the legitimate needs and interests of these islands.”
He believes the PR process and the ‘rollover’ requirement are particularly important if Cayman wants to control or be selective about who gets to live here long term.
A number of international human rights and nationality rights start to kick in after 10 years of lawful residency – sooner on some interpretations – that make it more difficult for government to deny applications to access permanent residency rights after that threshold.
He added, “That is why I believe we have term limits and must maintain them. They are one way of ensuring that the Caymanian people, operating through their legislators and within the constitutional guardrails established, can be in control of not only who comes, but perhaps more importantly, who stays and on what basis.
“Term limits only work with a robust and fairly applied PR system, so that it is the Caymanian people that decide who is qualified to stay forever, and on what basis.”
The right to be Caymanian
David takes a slightly different view to Joseph. He accepts the current PR system has problems, but believes they can be fixed with appropriate amendments and policies.
Where he believes attention should be focused is on the numbers who are becoming Caymanian.
He points to data that shows 763 people out of 800 applicants were granted Caymanian status in the past year, a success rate of 95%.
He believes this process could be more selective and restrictive without interfering with people’s residency rights.
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Basically anyone who has the financial means are successful with gaining PR in particular the wealthy persons which has skewed the economy i.e. an island 76 square mile don’t only need executives, attorneys and brain surgeons. We need Security guards, Nannie’s, Gardeners, etc…What has happened now is that property values have exceeded the reach of the average caymanians, food, gas, etc, all expensive.