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The Gap Confronting Most Persons who are Caymanian by Entitlement

Local News 03 Aug, 2023 1 Comments Follow News

Nick Joseph

By: Nick Joseph (HSM Partner)

A longstanding issue is the simple question of “who is a Caymanian?” With many different options and processes for achieving (and maintaining) Caymanian status, widespread confusion has caused whole aspects of the Immigration (Transition) Act (and other laws in the Cayman Islands) to be almost incapable of proper application. This is not a new issue and was not created by the present Government, or the present Department of Workforce Opportunities & Residency Cayman (WORC). The solution however lies in their hands.

The sad reality is that the performance of any Department of Government that needs to act or make determinations based on whether or not someone is in fact a Caymanian can be made impossible by the simple fact that when it comes to a number of persons in our community, the Cayman Islands Government and wider society does not appear to exercise a clear and consistent policy as to who is Caymanian. There are plenty of people who look to the public and authorities like they are a Caymanian (they may even have a Cayman Islands Passport, and/or been born here) but nevertheless, they are clearly and emphatically, as a matter of Law, not Caymanian.

These “non-Caymanian Caymanians” seem (in our longstanding experience) to fall into a number of categories – and are now widely referred to as “Ghosts.”

Many “Ghosts” are created (sometimes by accident) through a failure by a person who became Caymanian “by entitlement” to apply for “continuation” of their status on turning 18. A new category of “Ghost” appears to have been inadvertently created where a young person applies for (but does not receive confirmation of) the continuation of their status until after their 18th birthday. These “Ghosts” are perhaps best known as Schrödinger’s Caymanians.

You may have heard of “Schrödinger’s Cat” – which has made it into aspects of mainstream culture. In 1935 Austrian Physicist Erwin Schrödinger postulated that according to quantum mechanics, a cat locked in a sealed box and subjected to a 50% chance of a radioactive isotope causing a release of deadly poison, could be simultaneously alive and dead. The actual state of the cat cannot be determined until the box is opened and the cat actually observed. At that point quantum supposition is replaced by reality, and the cat is observed to be either dead or alive.

Until the opening of the box, the paradox confirms the cat is BOTH dead and alive.

Almost a century later we appear to have been able to re-create Schrödinger’s thought experiment, although this time it has been taken beyond theory and can be seen in active operation. Rather than using imaginary cats, The Immigration (Transition) Act uses real people. The box is replaced with an envelope, and there is no need for radiation or poison. 

Feline Friends need not be concerned.

Section 26(10) of the Immigration (Transition) Act (2022 Revision) provides an opportunity for anyone who will automatically cease to be Caymanian on their 18th birthday (i.e. everyone who has become Caymanian “by entitlement”) to apply for continuation of their status. They cannot make application before they are 17 years old. To succeed in any application and to accordingly continue to be Caymanian after turning 18, they have to demonstrate that they have been legally and ordinarily resident for at least 5 of the 7 years immediately preceding the date of their application and, that they are of good character.

If an applicant applies while they are 17, and is later confirmed to in fact continue to be Caymanian, they will be deemed (although after the fact) to have been Caymanian since their 18th birthday. If however they have turned 18 before they apply for “continuation”, then the Act confirms that they will only be Caymanian (again) from the date of the grant of “continuation”.

Since in either case the prospective Caymanian will have automatically ceased to be Caymanian on their 18th birthday, an interesting result occurs where someone applies for “continuation” before they are 18 but their application is not granted by their birthday. Applying Schrödinger’s thinking, this circumstance seemingly creates quantum superposition for long enough to be observed and recorded. In the period from the applicant’s 18th birthday until the envelope (or email) from the Department of WORC confirming an applicant’s status is opened the applicant is not (and has not been) Caymanian, unless the letter from the Department of WORC confirms that the applicant is (and has been) Caymanian. Only opening the envelope and looking inside will confirm the applicant’s status. Until then it would seem a qualified applicant must be assumed to be both Caymanian AND not Caymanian, at the same time.

That is as far as quantum mechanics can take us. Neither it nor the Act inform us or applicants whether they can or cannot be employed, travel to or remain within the Cayman Islands while they are awaiting confirmation. Can they work without a work permit (or is it with AND without a work permit, and is it with AND without their employer paying a fee)?  

And how about their scholarship application, or ability to register to vote?

This has been brought to the attention of the relevant authorities for a decade. Unfortunately no meaningful steps appear to have been taken to resolve these issues. The implications of potentially large numbers of expatriates being treated as Caymanian when they are not, risks creating ripples well beyond the Department of WORC.

It can only be hoped that those responsible can work together and fix it. Until they do, employers and regulators may need to be particularly cautious to ensure that those they are employing or regulating, are, and remain, what they were, and are, perceived to be.


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Lomart

03 Aug, 2023

And this is the Cayman conundrum!!