Immigration (Transition) (Amendment) (No.2) Law, 2020 (law 39 of 2020)

IMMIGRATION (TRANSITION) (AMENDMENT) (NO.2) LAW, 2020 PUBLISHING DETAILS IMMIGRATION (TRANSITION) (AMENDMENT) (NO.2) LAW, 2020 Amendment of section 13 - functions of Boards; Head of Work Permits, Cayman Status Amendment of section 37 - persons legally and ordinarily resident in the Islands for at Amendment of section 38 - Residency and Employment Rights Certificate for spouse of a Amendment of section 42 – Certificate of Permanent Residence for persons of Amendment of section 43 - spouse and dependants of the holder of a Residency Certificate for Persons of Independent Means or a Certificate of Permanent Residence IMMIGRATION (TRANSITION) (AMENDMENT) (NO.2) LAW, 2020 A LAW TO AMEND THE IMMIGRATION (TRANSITION) LAW, 2018 AS A CONSEQUENCE OF THE ENACTMENT OF THE CIVIL PARTNERSHIP LAW, 2020; AND FOR INCIDENTAL AND CONNECTED PURPOSES ENACTED by the Governor in accordance with section 81 of the Constitution, after consultation with the Premier, with the prior approval of the Secretary of State, and pursuant to instructions issued in accordance with section 31 of the Constitution. Short title and commencement (1) This Law may be cited as the Immigration (Transition) (Amendment) (No.2) Law, 2020. (2) This Law comes into force immediately after the commencement of the Civil Partnership Law, 2020. Amendment of section 2 of the Immigration Law (2020 Revision) – interpretation The Immigration (Transition) Law, 2018, in this Law referred to as the “principal Law”, is amended in section 2 as follows — (a) in the definition of the word “dependant” by inserting after the word “spouse” the words “or civil partner”; I Assent, Martyn Roper Governor Date: 4th day of September, 2020 (b) in the definition of the word “step-child” by inserting after the word “marriage” the words “or a civil partnership”; in the definition of the word “student” by inserting after the word “spouse” the words “or civil partner”; and (d) by inserting, in the appropriate alphabetical sequence, the following definitions — “ “Civil Registrar” means a Civil Registrar for civil partnerships appointed under section 29 of the Civil Partnership Law, 2020; “civil partner” has the meaning assigned by section 2 of the Civil Partnership Law, 2020; “civil partnership” has the meaning assigned by section 2 of the Civil Partnership Law, 2020; “civil partnership of convenience” means a civil partnership entered into with the primary intention of avoiding, or benefiting from, any of the provisions of this Law; “civil partnership officer” means a person appointed under section 26 of the Civil Partnership Law, 2020 or licensed under section 33 or 34 of that Law; and “Registrar” means the Registrar of Civil Partnerships who shall be the Registrar-General;”. Amendment of section 13 - functions of Boards; Head of Work Permits, Cayman Status and Permanent Residence The principal Law is amended in section 13(3)(b)(iii) by inserting after the word “spouse” the words “or civil partner”. Amendment of section 28 - acquisition of the right to be Caymanian by grant of the Board The principal Law is amended in section 28 as follows — (a) by repealing subsection (5) and substituting the following subsection — “(5) A person — (a) who has been married to, or been in a civil partnership with, a Caymanian — (i) for at least five years immediately preceding the application, where the marriage took place prior to the 1st January, 2004; (ii) for at least seven years immediately preceding the application, where the marriage took place on or after the 1st January, 2004; or (iii) in the case of a civil partnership, for at least seven years immediately preceding the application; (b) whose marriage is not a marriage of convenience; whose civil partnership is not a civil partnership of convenience; (d) who is not living apart from his or her spouse or civil partner under a decree of a competent court or under a deed of separation; (e) who has not lived apart from his or her spouse or civil partner for an aggregate period of three months — (i) out of the five years immediately preceding the application where the marriage took place prior to the 1st January, 2004; (ii) out of the seven years immediately preceding the application where the marriage took place on or after the 1st January, 2004; or (iii) in the case of a civil partnership, out of the seven years immediately preceding the application; (f) who is legally and ordinarily resident in the Islands immediately preceding his or her application; and (g) who has not in any country been convicted of an offence for which a sentence of imprisonment not exceeding twelve months has been passed other than for non-payment of a fine unless — (i) the conviction has been quashed on appeal or has been the subject of a free pardon; (ii) the act or omission giving rise to such conviction would not be an offence if done or omitted in the Islands in similar circumstances; or (iii) the conviction is one which, in the interest of justice, the Board directs to be ignored for the purposes of this may apply to the Board for the grant of the right to be Caymanian.”; (b) in subsection (6) as follows — (i) (ii) by inserting after the word “spouses” the words “or civil partners”; in subsection (7) — (i) by repealing the following — “(7) The surviving spouse of a Caymanian who — (a) was married to the deceased for at least seven years;”; and (ii) by substituting therefor the following — “(7) The surviving spouse or civil partner of a Caymanian who — (a) was married to, or in a civil partnership with, the deceased for at least seven years;”; and (d) by repealing subsection (8) and substituting the following subsection — “(8) Where the marriage or civil partnership referred to in subsection (7)(a) has not subsisted for a period of seven years or the grant of the right to be Caymanian has been refused by the Board, the surviving spouse or civil partner may apply to the Director of WORC for the right to permanently reside in the Islands and the Director of WORC shall take into account — (a) the length of the marriage or civil partnership; (b) whether there are any children of the marriage or civil whether immediately prior to the death the marriage or civil partnership was no longer subsisting as evidenced by a decree of a competent court, a deed of separation or what appears to be the breakdown of the marriage or civil partnership; (d) the applicant’s ability to support himself or herself and any dependants; and (e) the applicant’s health and character.”. Amendment of section 33 - revocation of right to be Caymanian The principal Law is amended in section 33(1) as follows — (a) by deleting the word “or” at the end of paragraph (c); (b) by inserting after paragraph (c) the following paragraph — “(ca) where the civil partnership of the holder, being the civil partner of a Caymanian, is deemed by the Board to have been a civil partnership of convenience; or”; and in paragraph (d) as follows — (i) (ii) by inserting after the word “marriage” the words “or civil Amendment of section 36 - categories of permanent residence The principal Law is amended in section 36 by repealing subsections (1) and (2) and substituting the following subsections — “(1) The Caymanian Status and Permanent Residency Board and the Director of WORC may grant the right to reside permanently in the Islands to the following non-Caymanian applicants — (a) persons, including their spouses and civil partners, who have been legally and ordinarily resident in the Islands for a minimum period of eight years; (b) the spouse or civil partner of a Caymanian; and a dependant of a Residency and Employment Rights Certificate who meets the requirements set out in section 39. (2) The Director of WORC may grant the right to reside permanently to — (a) the surviving spouse or civil partner of a Caymanian under section 28(7); and (b) persons of independent means, including their spouses or civil partners, under section 42.”. Amendment of section 37 - persons legally and ordinarily resident in the Islands for at least eight years The principal Law is amended in section 37 as follows — (a) in subsection (1), by inserting after the word “spouse” the words “or civil (b) in subsection (8), by inserting after the word “spouse” the words “or civil in subsection (10), by repealing paragraph (e) and substituting the following paragraph — “(e) any change in the status of the applicant’s marriage or civil partnership or in respect of the applicant’s dependants,”; (d) in subsection (16), by inserting after the word “spouse” the words “or civil (e) in subsection (18) — (i) (ii) by inserting after the word “spouse” wherever it appears the words (f) in subsection (19) — (i) by inserting after the word “marriage” wherever it appears the words “or civil partnership”; and (ii) by inserting after the word “spouse” wherever it appears the words Amendment of section 38 - Residency and Employment Rights Certificate for spouse of a Caymanian The principal Law is amended in section 38 as follows — (a) in the section heading, by inserting after the word “spouse” the words “or (b) in subsection (1), by inserting after the word “spouse” the words “or civil in subsection (2) as follows — (i) (ii) by inserting after the word “spouse” the words “or civil partnership”; (d) in subsection (3) — (i) in paragraph (a), by inserting after the word “spouse” the words “or (ii) by inserting after paragraph (b) the following paragraph — “(ba) the civil partnership is not a civil partnership of convenience;”; (iii) in paragraph (e), by inserting after the word “marriage” the words “or civil partnership”; and (iv) in paragraph (f), by inserting after the word “spouse” the words “or (e) in subsection (4), by inserting after the word “marriage” the words “or civil (f) by repealing subsection (6) and substituting the following subsection — “(6) The spouse or civil partner of a Caymanian shall have no right to reside or be gainfully employed in the Islands unless the spouse or the civil partner is the holder of a Residency and Employment Rights Certificate granted under this section; and the spouse or civil partner shall not be entitled to apply for, or to be granted, a work permit or the renewal of a work permit, but where a work permit is in effect on the date of the marriage or civil partnership, the spouse or civil partner may continue to work under the terms and conditions of the work permit until its expiration.”; (g) in subsection (7) — (i) (ii) by inserting after the word “marriage” the words “or civil (h) in subsections (8) and (9), by inserting after the word “spouse” the words Amendment of section 40 - loss of Residency and Employment Rights Certificate The principal Law is amended by repealing section 40 and substituting the following — “Loss of Residency and Employment Rights Certificate

(1) Subject to subsection (2), the holder of a Residency and Employment Rights Certificate who is the spouse or civil partner of a Caymanian or has obtained a Residency and Employment Rights Certificate as a result of his or her marriage to or civil partnership with, the holder of a Residency and Employment Rights Certificate under section 37(16) or any other earlier analogous provision, shall forfeit his or her rights under that Certificate if — (a) the holder falls within any of the provisions of section 51; (b) the holder’s spouse or civil partner ceases to be a Caymanian or to be a Residency and Employment Rights Certificate holder; within ten years of the marriage or the civil partnership, the marriage or civil partnership is dissolved or annulled; (d) the holder ceases to be legally and ordinarily resident in the Islands; or (e) the holder and his or her spouse or civil partner are living apart — (i) under a decree of a competent court; (ii) under a deed of separation; or (iii) in circumstances where, in the opinion of the Board or the Director of WORC, the marriage or civil partnership has irretrievably broken down. (2) A person who has forfeited his or her rights under subsection (1) and — (a) is or was the spouse or civil partner of a Caymanian; and (b) is the parent of a Caymanian child, may apply to the Board or the Director of WORC for a continuation of the Residency and Employment Rights Certificate — (i) until the child reaches the age of eighteen years; or (ii) where the child is enrolled in tertiary education, until the child completes his or her education or has reached the age of twenty-four years, whichever happens earlier. (3) Notwithstanding section 38(1), where the holder of a Residency and Employment Rights Certificate is the surviving spouse or civil partner of a Caymanian, that surviving spouse or civil partner shall be required, in order to continue to hold that Certificate, to apply to the Board or the Director of WORC for the right to continue to hold the Certificate and — (a) the Board or the Director of WORC shall, in considering the application take into account — (i) the length of the marriage or the civil partnership; (ii) whether there are any children; (iii) whether immediately prior to the death, the marriage or civil partnership was no longer subsisting as evidenced by a decree of a competent court, a deed of separation or what appears to be the breakdown of the marriage or civil (iv) the applicant’s ability to support himself or herself and any dependants; and (v) the applicant’s health and character; and (b) thereafter, the Board or the Director of WORC shall either revoke the Certificate or allow the continuation of the Certificate.”. Amendment of section 42 – Certificate of Permanent Residence for persons of Independent Means

The principal Law is amended in section 42 as follows — (a) in subsection (2)(b) and (c), by inserting after the word “spouse” the words (b) in subsection (3) by inserting after the word “spouse” the words “or civil Amendment of section 43 - spouse and dependants of the holder of a Residency Certificate for Persons of Independent Means or a Certificate of Permanent Residence for Persons of Independent Means

The principal Law is amended in section 43 as follows — (a) in the section header, by inserting after the word “spouse” the words “or (b) in subsection (1), by inserting after the word “spouse” the words “, civil partner”; and by repealing subsection (3) and substituting the following subsection — “(3) Upon — (a) the death of the holder of a Residency Certificate for Persons of Independent Means or a Certificate of Permanent Residence for Persons of Independent Means; or (b) the dissolution of the marriage or civil partnership of the holder of a Residency Certificate for Persons of Independent Means or a Certificate of Permanent Residence for Persons of Independent Means, the right of the surviving or former spouse or civil partner to reside in the Islands may be revoked at the discretion of the Director of WORC but the surviving or former spouse or civil partner may, within a period of three months of any revocation, apply for the grant of a Residency Certificate for Persons of Independent Means or a Certificate of Permanent Residence for Persons of Independent Means upon satisfying the requirements of this section.”. Amendment of section 47 - Certificate of Direct Investment

The principal Law is amended in section 47 as follows — (a) in subsection (2)(a) and (b), by inserting after the word “spouse” the words (b) in subsection (6), by inserting after the word “spouse” the words “, civil in subsection (7) — (i) (ii) by inserting after the word “spouse” where it twice appears the words (d) by repealing subsection (10) and substituting the following subsection — “(10) Where — (a) there is a change in the number of children who are dependants of the holder of a Certificate of Direct Investment; (b) the holder — (i) marries or enters into a civil partnership; (ii) divorces; or (iii) dissolves a civil partnership, subsequent to the issue of the Certificate; or changes his or her occupation within the business or businesses, the holder shall so inform the Director of WORC of the fact and the Director of WORC may amend the Certificate accordingly and subject to such conditions as Director of WORC may, in the Director’s absolute discretion, determine.”. Amendment of section 48 - revocation of Certificate of Direct Investment

The principal Law is amended in section 48(g) by inserting after the word “spouse” Amendment of section 49 - Certificate for Specialist Caregivers

The principal Law is amended in section 49(7) by inserting after the word “spouse” the words “, civil partner”. Amendment of section 50 - Residency Certificate (Substantial Business Presence)

The principal Law is amended in section 50 as follows — (a) in subsection (3) — (i) in paragraph (a), by inserting after the word “spouse” the words “or civil partner”; and (ii) in paragraph (b), by inserting after the words “spouse” the words “, (b) in subsection (6), by inserting after the words “spouse” the words “, or by repealing subsection (7) and substituting the following subsection — “(7) Upon — (a) the death of the holder of an Approval-in-Principle Residency Certificate (Substantial Business Presence) or a Residency Certificate (Substantial Business Presence); or (b) the dissolution of the marriage or civil partnership of the holder of an Approval-in-Principle Residency Certificate (Substantial Business Presence) or a Residency Certificate (Substantial Business Presence), the right of the dependent spouse or civil partner to reside in the Islands shall cease after a period of one year from the date of the death or the dissolution unless — (i) the spouse or civil partner can demonstrate to the satisfaction of the Director of WORC that he or she can support himself or herself and any dependent children without having to become gainfully occupied in the Islands; or (ii) the holder is granted permission to remain under any other provision of this Law.”; (d) by repealing subsection (9) and substituting the following subsection — “(9) Where — (a) there is a change in the number of children who are dependants of the holder of a Certificate issued under this section; (b) the holder — (i) marries or enters into a civil partnership; (ii) divorces; (iii) dissolves a civil partnership; subsequent to the issue of the Certificate; or the holder changes his or her occupation within the business, the holder shall so inform the Director of WORC of the fact and the Director of WORC may amend the Certificate accordingly and subject to such conditions as Director of WORC may, in the Director’s absolute discretion, determine.”; and (e) in subsection (11)(f), by inserting after the word “spouse” the words “or Amendment of section 53 - persons exempted

The principal Law is amended in section 53(1)(d) by inserting after the word “spouse” Amendment of section 58 - consideration of work permit by Board etc.

The principal Law is amended in section 58 as follows — (a) in subsection (3)(d), by inserting after the word “spouse” where it twice appears the words “or civil partner”; and (b) in subsection (5)(a), by inserting after the word “spouse” the words “or Amendment of section 63 - grant or refusal of work permit

The principal Law is amended in section 63(10) by inserting after the word “spouse” Amendment of section 66 - term limits

The principal Law is amended in section 66 as follows — (a) by repealing subsection (10) and substituting the following subsection — “(10) A person — (a) who is married to, or in a civil partnership with — (i) a worker; (ii) a person employed by the Government of the Islands; (iii) a person employed by the Government of the United Kingdom, in the Islands; (iv) a person employed by any statutory authority or Government owned company, the employees of which are by law not required to hold work permits; or (v) a person who is working by operation of law with the permission granted under subsection (4) or (8), and whose right to work in the Islands will expire before that of his or her spouse or civil partner; (b) whose marriage is, in the opinion of the Board or the Director of WORC, not a marriage of convenience; or whose civil partnership is, in the opinion of the Board or the Director of WORC, not a civil partnership of convenience; (d) who is not living apart from his or her spouse or civil partner under a decree of a competent court or under a deed of separation; and (e) who has not lived apart from his or her spouse or civil partner for an aggregate period of three months out of the twelve months immediately preceding the application for the grant in circumstances which, in the opinion of the Board or the Director of WORC, have led it to conclude that the marriage or civil partnership has broken down, may, during the currency of the spouse’s or the civil partner’s work permit or contract of employment with the Government of the Islands or with the Government of the United Kingdom in the Islands or in the period during which his or her spouse or civil partner is working by operation of law with permission granted under subsection (4) or (8), apply for the grant of a work permit or the renewal of an existing work permit; and the Board or the Director of WORC may — (i) grant the application for a period not exceeding that of the spouse’s or civil partner’s work permit or any renewal thereof; (ii) grant the application for a period not exceeding that of the spouse’s or civil partner’s contract of employment; or (iii) grant the application for a period not exceeding that of the period for which his or her spouse or civil partner is working by operation of law or under permission granted under subsection (4) or (8).”; (b) by repealing subsection (11) and substituting the following subsection — “(11) A person working under subsection (10) whose spouse or civil partner is granted permanent residence under section 37 and who has applied for a Residency and Employment Rights Certificate as the spouse or civil partner of a permanent resident under section 37(16) will not lose his or her right to work and may continue to be granted work permits until the final determination of his or her application where that application was submitted within ninety days of the grant of his or her spouse’s or civil partner’s permanent residence.”; in subsection (12), by inserting after the word “spouse” where it twice appears the words “or civil partner”; and (d) by repealing subsection (13) and substituting the following subsection — “(13) The Board or the Director of WORC, in calculating under subsection (10)(d), the period of time that an applicant has spent apart from his or her spouse or civil partner , shall not take into account those occasions when either spouse’s or civil partner’s absences were because of medical, educational, business, vacation or other analogous circumstances.”. Amendment of section 70 - marriages of convenience

The principal Law is amended by repealing section 70 and substituting the following “Marriages and civil partnerships of convenience 70. (1) A person who enters into a marriage of convenience or a civil partnership of convenience commits an offence and is liable on summary conviction to a fine of ten thousand dollars and to imprisonment for one year. (2) If — (a) a marriage officer has reasonable grounds for suspecting that a marriage will be a marriage of convenience; or (b) the Registrar, a Civil Registrar or a civil partnership officer has reasonable grounds for suspecting that a civil partnership will be a civil partnership of convenience, and fails to report his or her suspicion to the Director of WORC without delay and in such form and manner as may be prescribed, the marriage officer, the Registrar, the Civil Registrar or the civil partnership officer commits an offence. (3) Subsection (2) also applies where — (a) a marriage is solemnised in the presence of a marriage officer; and (b) a civil partnership is formalised in the presence of the Registrar, a Civil Registrar or a civil partnership officer, who, before, during or immediately after solemnisation of the marriage or formalisation of the civil partnership, has reasonable grounds for suspecting that the marriage or civil partnership will be, or is, a marriage of convenience or a civil partnership of convenience.”. Assented to by the Governor the 4th day of September, 2020.