During October, debate in the Legislative Assembly has focused on the far reaching proposals in the Immigration (Amendment) (No. 2) Bill 2013. Rather than merely addressing the urgent issue of the Term Limit Exemption Permit holders, the Bill amounts to an impressive and comprehensive reform of the permanent residency application process and seeks to impose a number of additional requirements and grounds of revocation for new and existing holders of permanent residency.
The overarching objective of the anticipated reforms is to ensure applicants find it harder to meet the requirements to obtain and retain permanent residency. As a result of the proposals to extend the current 7 year term limit for non-Caymanian workers to 9 years and the abolition of Key Employee provisions, the Government acknowledges this could amount to a larger pool of potential applicants once they have attained the prerequisite 8 years of continuous legal and ordinary residence. The response has been to propose a more stringent application process and a tougher appeals system designed to lower the number of grants.
The number of points required will increase from 100 to 110 and the weighting of the factors upon which points are allocated will be reviewed and adjusted on a periodic basis to meet current needs. Cabinet members would not need to obtain a ratifying vote from the Legislative Assembly in order to adjust the criteria at least once per year. The number of points awarded will be assessed against the need for certain occupations or skills at any one time and against the number of previous grants in the same industry to ensure those granted permanent residence are drawn from a diverse cross-section of society. In light of the anticipated regular changes and amendments to the criteria in each category of assessment, it is recommended that applicants seek professional advice to correctly evaluate their individual circumstances against the current criteria.
If an application for permanent residency is refused, the proposed transformation to the existing appeals system and the insertion of more extensive provisions will ensure faster determination of appeals and a process that has more teeth. All submissions will now be made in written format over two stages thereby not only preventing delay due to non-attendance at hearings but more significantly ensuring that appellants no longer need to remain on-island while appeals are pending. Previously, the large backlog of appeals and the delay in issuing decisions would allow appellants to lodge frivolous appeals to prolong their stay by several years. In order to deter future meritless appeals, the proposals would empower the Immigration Appeals Tribunal to make costs orders against vexatious appellants.
Once granted, the ability to retain permanent residency will become harder due to the projected addition of several further grounds for revocation. Failure to comply with the existing and additional grounds will be deemed an offence which may result in the loss of permanent residency. These additional grounds for revocation include circumstances where the holder of a Residency and Employment Rights Certificate:
- Fails to pay any prescribed fees within 90 days of their due date;
- Is or has been employed in an occupation not specified in his Certificate; or
- Fails to submit an annual declaration.
The issue of delinquent fees addresses the Government's need to recoup the majority of the CI$2.8m of unpaid annual fees. Applicants who seek to apply for Caymanian status in due course will be ineligible until all outstanding fees are brought up to date. In order to ensure there is no repeat of this deficit and to act as a further deterrent to frivolous applications, the Bill proposes that any new applications will not be considered unless accompanied by the newly increased non-refundable application fee, the issue fee, any dependant fee(s) and the annual fee for the first year.
The prohibition on employment in different occupations will ensure an end to previous abuses where holders of permanent residency operated as independent contractors with multiple employers. Any changes to employment including a new employer, termination, promotion or demotion must be notified immediately to the Chief Immigration Officer. Moreover, failure to submit a newly proposed annual declaration encompassing employment, investments and a variety of other factors would provide further grounds for revocation.
Other notable amendments to the existing law include provisions relating to property and children. The new proposals contend that if you sell the property listed in an application for permanent residence, you must purchase another property within 180 days of completion and provide the Chief Immigration Officer with full details of the new property within 30 days of completion. The imposition of an annual declaration would allow regular monitoring of each applicant's property situation and ensure an end to previous abuses where properties would be sold following a grant of permanent residence. In addition, dependant children previously had the right to reside in the Cayman Islands until the age of 24 or when they completed full time tertiary education. The new proposals seek to enforce new timeframes whereby the right of a dependant child to reside in the Cayman Islands shall cease upon reaching the age of 18 unless his or her parent's Residency and Employment Rights Certificate has been varied to reflect the fact that the child is engaged in full time tertiary education. It is worth noting that it will be an offence and a further ground for revocation if a variation is sought and it transpires that the child is not pursuing full time tertiary education.
Genuine applicants for permanent residency need to comprehend that if they reach the 9 year term limit for residence with an appeal pending, they must leave the Cayman Islands and await the outcome overseas. An appellant who has had his appeal refused will no longer be able to apply for one final non-renewable permit and would have 90 days in which to leave. In light of the fact that the proposals will make it harder to obtain a grant of permanent residency and the fact that there is a current backlog of 2,000 pending appeals with no definitive timeframe for consideration, there is an even greater emphasis on ensuring that the initial application is correctly submitted, contains properly worded submissions and is supplemented by all requisite supporting evidence so as to ensure the best possible chance of a grant of permanent residence at first instance. For further information and assistance with applications, appeals and for any other immigration related matters, please contact Samson & McGrath, Attorneys-at-Law.
Please note that this document dated October 2013 discusses the proposed changes expected to come into effect later this year. It is not intended to be used as legal advice and cannot be relied upon.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.