The Divorce Dilemma: How it Affects Immigration in Cayman

Divorce or Dissolution For Expats/Work Permit Holders

In the event of a breakup between expat couples residing in the Cayman Islands, a spouse or civil partner previously dependent (whether directly or indirectly) on their partner's immigration permission, will face challenges in maintaining their residency. According to the Immigration (Transition) Act, residency based solely on the presence of children is not permissible. However, children can continue to reside in the Cayman Islands as approved dependants of the parent holding a valid immigration permission and can (with express permission from the authorities) remain as a dependant past the age of 18 if engaging in full-time tertiary education. A child can therefore (with permission) remain a dependant during their university studies, up to a maximum age of 24 in most instances.

For the former dependant spouse or partner, the options for remaining in the Cayman Islands will depend on them being able to secure permissions in their own right. If they have not yet reached their 9-year term limit they may need to obtain their own work permit, potentially through the Special Economic Zone regime, or secure residency independently as a person of means. If they have already been legally and ordinarily resident in the Islands for more than 8 years, and remain a resident, they may be able to apply for Permanent Residence under the Points System.

Simply seeking to remain as a visitor is likely to be unworkable in many instances. Staying beyond 90 days can pose challenges, and permission to extend their stay beyond 182 days (in total) in any 12-month period is likely to be denied. Therefore, securing a right to reside independently of a spouse can be very important for those facing a marriage (or civil partnership) breakdown.

Former Spouse or Civil Partner of a Caymanian

Where the former spouse or civil partner of a Caymanian is the parent of a Caymanian child, they may be allowed to remain (subject to various approvals) and be permitted to work until the children turn 18 years of age. Where a child is continuing in education it is possible to make an application for permission to remain until a dependant child completes their tertiary education or their 24th birthday, whichever happens first.

If their last child graduates from university or reaches the age of 24 and the non-Caymanian parent has not obtained appropriate alternative immigration permissions before then, then the parent will be expected to leave the Cayman Islands (according to the provisions of the law as presently drafted). However, such a parent will usually have an opportunity to apply for Permanent Residence pursuant to the points system, provided Cayman has been their home for more than eight years. In that regard it should be noted that under the present system, 40 points are available for anyone who is the parent of a Caymanian child.

Spouses or Civil Partners of Permanent Residents

The dependant spouse or civil partner of a Permanent Resident can apply for their own Permanent Residency and Employment Rights Certificate (RERC) as the spouse/civil partner of a PR holder as soon as their spouse/civil partner is granted Permanent Residence. They do not have to wait the usual eight years of residency, nor take any tests or otherwise 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.

Ideally, spouses and civil partners who qualify should 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’ or civil partner’s Permanent Residency since there is no expiry date on most such permissions.

A problem can arise when one of the spouses or civil partners is granted the Right to be Caymanian. At this point, the RERC holder/spouse/civil partner whose residence is based on marriage or civil partnership to a PR holder must have their immigration status in the Islands ‘regularised’ within 45 days, i.e. they must immediately make application to seek an RERC as the spouse/civil partner of a Caymanian.

They may also (if they have been married or in a civil partnership for more than seven years) apply directly for the Right to be Caymanian based on marriage or civil partnership to a Caymanian.

If they fail to apply in time or dissolve the relationship, then as they are no longer married to or in a civil partnership with 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 truthfully declaring in an affidavit that 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 are granted permission to stay on the Island under other immigration law provisions.

Seeking early guidance as to your immigration standing can accordingly be critical in the event of any breakdown.

Spouses or Civil Partners of Caymanians

The spouse or civil partner of a Caymanian is not automatically entitled to a work permit or even to reside in the Cayman Islands without applying for and gaining permission to do so. Unless they have been granted permission prior to the marriage or civil partnership, which has not yet expired, they must apply for and be granted a RERC (Residency & Employment Rights Certificate) based on marriage or civil partnership to a Caymanian. The law has now changed to make such RERCs permanent in nature as long as the relationship remains stable.

After seven years of marriage, the non-Caymanian spouse or civil partner can apply for the Right to be Caymanian. If a Caymanian also happens to be a BOTC (British Overseas Territory Citizen), their spouse or civil partner who holds a RERC can apply for Naturalisation as a BOTC by virtue of a connection with the Cayman Islands in as little as three years of residing here. Anyone resident five years after Naturalisation is eligible to apply for the Right to be Caymanian based on Residence.

The law also provides that the right of any RERC holder (as the spouse or civil partner of a Caymanian) forfeits the right to live and work in the Islands if the couple are legally separated or the Board considers the relationship has otherwise broken down. In such a case, WORC can revoke a RERC, which may in any event be of questionable validity even if not revoked. If revoked, then one of the ways the spouse or civil partner holding a RERC can 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 up to three years (unless the marriage or civil partnership is first formally dissolved). If a marriage becomes unstable or breaks down, the proper course is for the spouse, whose immigration permission is at risk, to apply for their own work permit. This is one of the ways that they can be assured of any right to continue residing in Cayman and stay employed.

At the end of the three-year period, or if the non-Caymanian spouse or civil partner has exceeded their term limit of nine years, their primary options would be either apply for Permanent Residence (while they still have a valid immigration permission) or leave the Islands for one year to reset their term-limit clock, and thereafter to seek readmission to reside on a work permit.

Failure to comply with the requirements leaves little room for flexibility under the law. A potential recourse is available through an application to the Cabinet, typically based on human rights grounds, but this process can be protracted, expensive, and uncertain in its outcome. Generally speaking, everyone will have been expected to have availed themselves of alternative options set out in the applicable legislation.

Things to Consider

1. The length of time you and your spouse or civil partner 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.
2. 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 or civil partner is (or has become) a Caymanian, you can apply to be Caymanian when you have been married to, or in a civil partnership with, the person for seven years (whether or not the seven years have been spent in Cayman), subject to cohabitation requirements.
3. It is an offence for a PR applicant, whose application is pending, not to inform the authorities immediately of any change in an applicant’s marital or civil partnership status. Persons holding Permanent Residence (other than on the basis of Marriage or Civil Partnership to a Caymanian) are also required 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/Civil Partnership to a Caymanian) and their Dependant Spouse or Civil Partner, not to inform the Director of Workforce, Opportunities and Residency Cayman (WORC) of a change in marital/civil partnership status within six months of any dissolution or breakdown.

Law Firms in the Cayman Islands that Specialise in Family Law