The Divorce Dilemma: How it Affects Immigration in Cayman

Divorce For Expats/Work Permit Holders

Should an expat couple living in Cayman decide to divorce, the non-working (previously) dependent spouse may have no right to stay in Cayman. Residence, based purely on the presence of children, is not allowed by the Immigration (Transition) Act. Children in such circumstances can remain as approved dependents of the parent who is on a work permit or government contract and continue to attend full-time education until adulthood (as late as 24 if attending full-time university). However, the formerly dependent parent will likely only be able to remain if they obtain their own work permit (including through the Special Economic Zone regime) or government contract; or alternatively secure some form of residency as a person of independent means. They may be permitted to remain as a visitor, but remaining in such a capacity for more than 90 days can present difficulties, and no permission ought to be expected after a total of 182 days of physical presence in any 12-month period.

Former Spouse of a Caymanian

In the instance where the former spouse of a Caymanian is the mother/father of a Caymanian child, they will usually be allowed to remain (subject to various approvals) and be permitted to work until the children complete their education or their 24th birthday, whichever happens sooner. If their last child reaches the age of 24 and the non-Caymanian parent has not obtained an alternative immigration permission before this point, then the parent will (according to the provisions of the law as presently drafted) have to leave the Cayman Islands. However, such a parent will have an opportunity to apply for Permanent Residence pursuant to the points system, provided Cayman has been their home for more than eight years.

Spouses of Permanent Residents

The dependant spouse of a Permanent Resident can apply for their own Permanent Residency and Employment Rights Certificate (RERC) as the spouse of a PR holder as soon as their spouse is granted Permanent Residence. They do not have to wait the usual eight years of residency and do not have to take any test or be subject to the points system. They are, however, free to apply for Permanent Residence in their own right, (and go through the normal process) if they have been living in Cayman for eight years. If they hold Permanent Residence and have been naturalised, they should also apply for the Right to be Caymanian as soon as they have been living in the Cayman Islands for 15 years (or five years following the date of Naturalisation). Ideally, spouses who qualify should, in any event, consider applying for Permanent Residence in their own right once they have been legally and ordinarily resident for eight years. However, many people just carry on having their Residency and Employment Rights Certificate (RERC) 'tied to’ their spouses’ Permanent Residency since there is no time limit on the award. The problem arises when one of the spouses applies for and is granted the Right to be Caymanian. At this point, the RERC holder/spouse whose Residence is based on marriage to a PR holder must have their immigration status in the Islands ‘regularised’ within 45 days, i.e. they must have their RERC changed to that of the 'Spouse of a Caymanian'. They may even (if they have been married for more than seven years) apply directly for the Right to be Caymanian based on marriage to a Caymanian. If they forget or divorce, then as they are no longer married to a Permanent Resident, their certificate becomes void. There will, in effect, be nothing to extend. This has caused a lot of problems for couples/parents who then decide to separate. One of the requirements in the Immigration Act is that you can hand-on-heart tick the box saying you have a stable marriage. If you cannot, then there may be no rights remaining for you in the law: your immigration standing may be in limbo and you may not be allowed to stay in the Cayman Islands unless you can find an alternative permission to stay on the island.

Spouses of Caymanians

The spouse of a Caymanian has no entitlement to a work permit or even to reside in the Cayman Islands on the basis of their marriage. Unless they have a prior permission, which is yet to expire, they must first apply for (and hold) an RERC (Residency & Employment Rights Certificate) on the basis of marriage to a Caymanian. The law has now changed to make such RERC’s permanent in nature. After seven years of marriage, the non-Caymanian spouse can apply for the Right to be Caymanian on the basis of marriage. If a Caymanian also happens to be a BOTC (British Overseas Territory Citizen), the holder of an RERC (Residency & Employment Rights Certificate) as the spouse of a Caymanian they can apply for Naturalisation as a BOTC by virtue of a connection with the Cayman Islands as little as three years after becoming a resident here. Anyone resident five years after Naturalisation is eligible to apply for the Right to be Caymanian. The law also provides that the right of any RERC holder (as the spouse of a Caymanian) ceases to have the right to live and work in the Islands upon the breakdown of their marriage. In any event, WORC can revoke an RERC. If the RERC is revoked, then one of the only ways for your spouse to stay on the Island is by being granted a work permit under section 38 (7) of the Immigration (Transition) Act, and only for a period of three years (unless the marriage is first formally dissolved). At the end of the three years, if you have passed your term limit, then the non-Caymanian spouse must apply for Permanent Residence or may have to leave the Islands and be without a work permit for one year in order to reset their term-limit clock. Without an application to the Cabinet, there is little leeway in the law. The only avenue to fighting this could be on the grounds of human rights, and that process could be lengthy, costly and uncertain.

Things to Consider

• The length of time you and your spouse have lived in the Islands and what implication that has on your term limit and applications for Permanent Residency, or the Right to be Caymanian.

• If you qualify, you can seek Permanent Residence in your own right when you have been in Cayman for at least eight years. Further, if your spouse is (or has become) a Caymanian, you can apply to be Caymanian when you have been married to the person for seven years (whether or not the seven years have been spent in Cayman), although there are some requirements regarding cohabitation.

• Remember that under current legislation, it is an offence for an applicant for PR, whose application is pending, not to inform the authorities forthwith of any change in an applicant’s marital (or other material) status. There is also a requirement on persons holding Permanent Residence (other than on the basis of Marriage to a Caymanian) to file an annual declaration. It is also an offence punishable by a substantial fine and potential loss of immigration permissions for an RERC holder (other than on the basis of Marriage to a Caymanian) and their Dependant Spouse, not to inform the Director of Workforce, Opportunities and Residency Cayman (WORC) of a change in marital status within six months of any dissolution or breakdown.

Law Firms in the Cayman Islands that specialise in Family Law