Immigration Pitfalls to Avoid

It is often the case that one immigration permission depends on another. Failure to seek and obtain approvals in a timely manner can, and frequently does, cause serious problems. Immigration applications not only take a long time to prepare but also a long time to process. Delays, in and of themselves, can sometimes cause difficulties.

Families often get caught out as a result of failing to meet physical presence requirements. It is important to be mindful of unexpected and protracted overseas visits which may affect any future applications. Here are just a few of the immigration pitfalls that applicants fall into time and time again, and how you can minimise the prospect of them affecting you and your family members.

Do Not Delay

If you have the right to seek a specific immigration-related permission, and qualify for it, apply for it! Failing to apply for a permission that you are entitled to can seriously disadvantage your employment opportunities, and your spouse and children may lose the right to any benefits they may otherwise have accrued. For example, unless a parent becomes a Caymanian before their child turns 18, the child will have forever lost the ability to become a Caymanian by entitlement. Instead, they will have to take steps to become a British Overseas Territories Citizen (BOTC) before becoming Caymanian, potentially losing out on benefits reserved for Caymanians such as priority in and freedom of employment, and even scholarship opportunities.

Furthermore, while not official government policy, a dependent child applying for discretionary registration as a BOTC after their 15th birthday, is unlikely to succeed in that application—denying them a BOTC (Cayman) passport. Parents are accordingly urged to make any appropriate registration applications as soon as their child becomes eligible.

Aside from Registration and Naturalisation applications, which are ultimately governed by the UK, the new Cayman Islands Government will be looking to make changes to the immigration system in the coming months and years—opportunities not taken now may well be lost forever. Keep reading to find out more about when you may become eligible for certain permissions, depending on your circumstances.

Important Timings for Adults

When to Apply for Permanent Residence

You can apply for permanent residence after eight years of continuous legal and ordinary residence but you must apply before any existing immigration permission (a work permit, a Residency and Employment Rights Certificate (RERC), or dependency) expires, is lost by operation of law or is revoked.

As the spouse of a Caymanian, you should apply for permanent residence as soon as you marry or, if you are already married, as soon as your spouse is granted the right to be Caymanian. If you are about to marry a Caymanian (and intend to apply for an RERC) make sure that you have a work permit before you are married, and apply for the RERC before your work permit expires. Otherwise you may lose the right to work, enter and even remain in Cayman while your application is being considered. Similarly, you should apply for permanent residence as the spouse of a permanent resident as soon as you get married, or if you are already married, as soon as your spouse is granted permanent residence. This will ensure that you can avail yourself of all the employment advantages and advance towards eligibility to apply for naturalisation as a BOTC.

When to Apply for Caymanian Status and BOTC Naturalisation

You are eligible to apply for the right to be Caymanian on the grounds of marriage/civil partnership following seven years of marriage/civil partnership with a Caymanian.

You can apply for naturalisation as a BOTC on the grounds of residence once you have held permanent residence for one year (provided that you have been legally and ordinarily resident in the Islands for at least five years). This will speed up your eligibility to hold a BOTC passport and, if desired, to seek registration as a British citizen. If you are applying for naturalisation as a BOTC on the grounds of marriage/civil partnership, you can do this following three years of marriage/civil partnership, provided that you are 'settled' and have been resident in Cayman for at least three years.

You can apply for the right to be Caymanian on the grounds of naturalisation on the fifth anniversary of being issued your Certificate of Naturalisation (or Registration) as a BOTC by virtue of a connection with the Cayman Islands. You can do this on the 15th anniversary of you becoming legally and ordinarily resident in the Islands (provided you are naturalised or registered as a BOTC), whichever date is first.

In the Event of Death/Marital Breakdown

If you are the surviving spouse of a Caymanian, it is essential that you apply for a continuation of an RERC as soon as you can; ideally within three months of the death to ensure that your employment and lawful residence in Cayman is not interrupted. If you are the parent of a Caymanian child, you should apply for continuation of an RERC within three months of the death of your Caymanian spouse or as soon as practicable following the breakdown of your marriage to a Caymanian.

Important Timings for Children

Families can sometimes encounter problems in relation to their children’s status if they do not stay on top of the rules. Here are some timelines (and deadlines) to consider if you have children:

If your child is continuing in full-time education beyond their 18th birthday, you will need to apply for a variation of dependency to ensure that your child remains your dependant after they turn 18. This needs to be done as soon as practicable following your child’s 17th birthday. Failure to do so may result in your child losing all rights to live in Cayman when they turn 18.

An eligible young person should apply for permanent residence in their own right as soon as practicable following their 18th birthday in order to continue to have the right to live in Cayman. However, to do so, they must have been legally and ordinarily resident for at least seven years prior to their application. Being away at school or university does not affect their ability to apply, as long as Cayman has remained their home throughout. If PR is not achieved, the person would likely lose all rights to live in the Cayman Islands and be ineligible for most alternative permissions.

As soon as a parent is granted the right to be Caymanian, you should apply for an acknowledgement of the right to be Caymanian by entitlement for your child, provided the child is under the age of 18 and has been legally and ordinarily resident in Cayman for at least 12 months. Without this, the child will not be able to become a Caymanian without going through a significantly more onerous process—and for which they may not qualify.

Following the birth of a child or when they become eligible, you should apply for an acknowledgement of the right to be Caymanian on whatever grounds as soon as practicable. If your child is Caymanian by entitlement, you will need to apply for a continuation of the right to be Caymanian as soon as possible following your child’s 17th birthday.

Finally, those eligible to become a BOTC by entitlement should apply as soon as practicable following the child’s 10th birthday, so long as the child was born in Cayman and has not been absent for more than 90 days in any one of the first 10 years of their life. This will provide your child with a right to remain (but not work) in Cayman forever.

Mind the Gap!

Families often get caught out as a result of failing to meet residency requirements due to protracted visits overseas. For example, any continuous absence of six months or more may be considered a break in residence and may disqualify you from applying for PR, or any other permission that requires a number of years of continuous legal and ordinary residence. Any absence of 12 months or more will almost certainly affect future applications based on legal and ordinary residence.

Expectations are even more strict in connection with any person seeking to become a BOTC. If you are applying for naturalisation as a BOTC based on residence, you ought not have been absent for more than 90 days in the 12 months prior to your application, and you should not have been absent from the Islands for more than 450 days (in total) in the 60 months (five years) prior to your application.

If you are applying for naturalisation based on marriage to a BOTC, you should not have been absent for more than 90 days in the 12 months prior to your application and should not have been absent from the Islands for more than 270 days (in total) in the 36 months (three years) prior to your application.

If you are applying for Registration as a BOTC by entitlement, not only must you have been born in Cayman but you are expected to have spent the first 10 years of your life here and not have been absent for more than 90 days in any one of the first 10 years of your life.

If a child is applying for registration as a BOTC and an exercise of discretion is requested, it is essential that the application be made before the child turns 15 years old. This is because if a child (who is not entitled to be a BOTC) is not Registered as a BOTC before they turn 18, their next opportunity would (in most instances) be to apply for naturalisation—perhaps one year after they have obtained PR in their own right. Such a person will usually be 19 or 20 years old and will often have been away at university, an absence that may disqualify them from being naturalised. Without naturalisation, they may find themselves deprived of any ability to apply to become Caymanian, with all the corresponding barriers to employment, despite the fact that many such persons will know no home other than the Cayman Islands.

Never assume anything

If you believe you or your child are Caymanian, but do not have the documentary evidence, you should seek and obtain formal acknowledgement of that status. The process is easy, fast and free for Caymanians. Put the issue of your or your child’s status beyond any doubt. It costs only CI$50 for those who are not Caymanian by birth or by grant, seeking acknowledgement that they are Caymanian by entitlement (without which acknowledgement they are not Caymanian).

Always maintain a valid stamp in your passports, including your 'Cayman' passport. A BOTC (Cayman) passport does not by itself evidence nationality or even a right to be in or remain in Cayman, and stamps can be critical when navigating everything from airline expectations, to satisfying local regulators, schools, and employers as to your permissions.

Becoming a BOTC does not automatically make you a British citizen. Any person who became a BOTC in recent years must apply for Registration as a British citizen, a discretionary process that takes several months.

Always make sure your dependants maintain their permissions by checking every passport renewal to ensure they have not inadvertently been removed. Be aware that any changes to your own status can impact your dependents and, in the worst case, could result in them losing their right to be in Cayman.

In certain circumstances dependent children can automatically lose all rights simply upon turning 18. Dependent spouses should be aware that you may lose all rights upon the breakdown of a relationship (even without a divorce).

Be sure to understand your own rights and responsibilities. You must maintain the conditions of any permission granted to you or else your permission is at risk. This may include (where applicable):

• You or your child being or remaining in education
• Co-habiting with another in a 'stable' relationship
• Being employed by a particular employer and in a particular role
• Having/maintaining local health insurance
• Contributing to a pension
• Maintaining investments
• Paying annual fees (including with respect to dependants)
• Filing an annual declaration.

It is important never to approach immigration applications assuming that you are entitled to a positive outcome. Most applications require the exercise of discretion and numerous factors are taken into account, including the circumstances of not only the applicant, but the community as a whole. All appropriate evidence to assist in the desired determination of an application should be presented to assist the applicant in standing out as deserving of the privilege sought.

The immigration system is complex and negotiating the system successfully will require you to pay attention to the small print, and always stay on top of timelines and conditions. It is advisable to contact an immigration professional for clear advice on your circumstances and to ensure that you don’t fall into any of the traps discussed above, and that the desired path for you and your family to navigate is planned and understood, well in advance.