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20/03/2019 | hsmoffice

HSM’s Adam Crane to Speak at ABI 2019 Spring Meeting

Our Senior Associate, Adam Crane, will be attending and speaking at the American Bankruptcy Institute (ABI) Annual Spring Meeting on April 11-14, 2019 at the Marriott Marquis in Washington, D.C. Adam will be speaking in a panel discussion on April Read more +

11/03/2019 | hsmoffice

Greater Willpower – The Cayman Islands Enhances Its Wills Regime For Foreign Testators

In order for a Cayman Islands Will to be valid it must be both ‘essentially’ valid and ‘formally’ valid. HSM’s Head of  Private Client and Trusts, Robert Mack, explores this structure and what’s new for 2019. Essential Validity For a Read more +

07/03/2019 | hsmoffice

Are you a Permanent Resident or do you have the Right to Remain Permanently in the Cayman Islands?

Both the same, right? According to HSM Partner and Immigration expert Nick Joseph, the answer is fundamentally yes. Under the Immigration Law of the Cayman Islands, seemingly not. Unexpected twists and pitfalls await the unwary. Through decades of tweaking we Read more +

18/02/2019 | hsmoffice

HSM Partner William Helfrecht Ranks in Chambers Global Guide 2019

The HSM Group congratulates Partner William (Bill) Helfrecht for his recognition by Chambers and Partners. For the second consecutive year, William is featured in the Band 3 ranking in the 2019 Chambers Global Guide for dispute resolution: trusts in the Cayman Islands. William’s practice primarily Read more +

New Immigration Opportunities for the Spouse of a Caymanian

Partner and Immigration Expert, Nick Joseph explores The Immigration (Amendment) Law, 2018  (“the Amendment Law”) that came into effect on 13 August 2018, and following this passage, new opportunities present themselves for persons who are married to a Caymanian and hold (or are seeking) Residency and Employment Rights Certificates as the spouse of a Caymanian.

According to documentation recently received from the Department of Immigration there are approximately 350 expatriates holding Residency and Employment Rights Certificates (RERC’s) as the spouse of a Caymanian. We expect this number will increase.

Unlike the RERC’s awarded to Permanent Residents, the RERC’s awarded to the spouse of a Caymanian were not previously permanent in nature. They only lasted for 7 years and the holder either had to seek the Right to be Caymanian (on the basis of 7 years’ marriage to a Caymanian) or seek to renew their RERC prior to its expiry.

Until the spouse of a Caymanian became Caymanian, they could not be said to be free from any immigration restriction on the period they are permitted to remain in the Islands given the 7 year period of validity of their RERC. This meant that they were unable to be naturalised or obtain a Cayman Islands passport during that 7 year period.

Cayman Islands Passports are only available to persons who hold British Overseas Territories Citizenship (“BOTC”) by virtue of a connection with the Cayman Islands. The process for being, or becoming, a BOTC of the Cayman Islands is set out in and governed by the British Nationality Act. That Act has at all relevant times required applicants for Naturalisation to have been resident in the Territory for a minimum of twelve months’ “free from Immigration Restriction for the period for which they may remain” prior to becoming eligible to apply for Naturalisation.

In contrast, the spouse of a Permanent Resident was able to seek Naturalisation a year after marrying a PR holding expatriate, and thereafter obtain a Cayman Passport. The result was that a spouse of a Caymanian was until very recently with the passing of the Amendment Law treated far less favourably. They would have to be married to a Caymanian for 7 years’, apply for Caymanian status on the grounds of 7 years’ marriage, obtain that status, and hold it for 12 months’ before being eligible to apply for naturalisation and thereafter, a Cayman Passport.

The Government has acted to ensure that a spouse of a Caymanian is subject to the same rules when seeking naturalisation and a Cayman Passport as the expatriate spouse of an expatriate PR holder. This change is welcomed and the authorities should be congratulated for making it.

The relevant amendment which came into effect on 13 August, has removed the 7 year expiry date on every RERC issued to a spouse of a Caymanian, in effect making their RERC Certificate indefinite in nature.

With no expiry date to their Certificate, a  spouse of a Caymanian holding an RERC may now, provided they have held an RERC for no less than 12 months’ and have been legally and ordinarily resident in Cayman for no less than 5 years’, apply for Naturalisation on the Grounds of Residence. If they are married to a Caymanian, who is also a BOTC by virtue of a connection to the Cayman Islands and have been married and resident for 3 years’, an application for Naturalisation on the Grounds of Marriage to a BOTC can now be made.

This will greatly expedite the ability of a spouse of a Caymanian to seek and obtain Cayman Islands Passports and further, for them to thereafter seek registration as full British Citizens which, if granted, would enable them to hold full British Citizenship in addition to being British Overseas Territories Citizens.

Once the spouse of a Caymanian has been naturalised as a BOTC, they will be eligible to seek to become Caymanian on the basis of Residence some 5 years’ later or 15 years’ after first becoming Resident in the Cayman Islands, whichever is less. This is the mechanism by which most long term residents may become

Caymanian and is entirely consistent with the original intention of what started as the Caymanian Protection Law, that in order to be eligible to become Caymanian, applicants must first be British Subjects.

The ability of a spouse of a Caymanian to seek to become Caymanian relying on 7 years’ of marriage to a Caymanian (rather than on the basis of Naturalisation/Residence set out above) continues; although not least given issues that may arise following any breakdown of the marriage, prospective applicants for Caymanian Status may prefer (all other considerations being equal) to follow the Naturalisation/Residence route to becoming Caymanian rather than seeking status based on marriage.

Holders of RERC’s as a spouse of a Caymanian continue to enjoy unfettered access to the labour market and to be free to engage in any category of gainful occupation without having to pay annual fees.

The Government has elected to not require a spouse of a Caymanian to undertake any annual reporting requirements but given perceptions as to marriages of convenience and the potential for such spouses to be living apart, such provisions may need to be introduced in the future.

This article can also be seen in The Journal – November 2018 issue.