By: Nick Joseph, HSM Partner

 Nick Joseph, HSM Partner

Long story short: In 1959, Castro assumed control of Cuba. In 1969, Pindling assumed control of the Bahamas and led them to independence in 1973. In 1962, Jamaica became independent and in 1972, Manley assumed leadership. 

Capital and human-flight from those countries ensued – with “brain-drain” exacerbating very serious pain (and for a period at least, near ruin) for the societies involved. 

What caused such dramatic change and turmoil in three of our closest neighbours? There are many reasons (including cold war agitation between superpowers actively seeking to destabilize) – but key to what happened was a perception of economic and socio-economic dominance by persons not of those Island-countries. A disaffected local population, marginalized and excluded from the best their own countries had to offer, became angered. Their poverty gave them little to lose. They agitated for change. 

“Don’t upset the apple cart!” “Don’t rock the boat!” –  came the refrain of economists and businesses.

“Do you understand how ludicrous those words sound to persons who never get to sell (or eat) apples, and who never get to ride in a boat?” – came the (sometimes reasonable) retort from many in the populations concerned.

Too many. 

“Unnah mus fi mad!” was the way many in Jamaica described it, but that beautiful countries’ most famous musical artist, Robert Nesta Marley, who may have best conveyed the sentiment in words known to almost all readers, but perhaps (previously) understood by few.

I and I plant the corn

Didn’t my people before me

Slave for this country

Now you look me with that scorn

Then you eat up all my corn

We gonna chase those crazy

Chase them crazy

Chase those crazy baldheads out of town.  

If it looks like a partial call for ethnic cleansing…it is because in some respects, it is. 

“Out of many, one people” (Jamaica’s national motto) seems to have come true, but perhaps not in the way its authors intended.  

Meanwhile, facing not dissimilar populist sentiments, and beginning in 1969, Lynden Pindling declared “The Bahamas for Bahamians” with a similar impact for those Islands’ Financial Services Industry (and many aspects of the wider economy). 

Crazy (and sane) “Baldheads” (and bankers from the Bahamas) needed somewhere to go. Cayman stood ready to receive some of them. We laid the groundwork – but our outstretched arms of welcome were not any noble invitation that the world give us its (to paraphrase the words inscribed at the feet of Lady Liberty) “tired, poor, huddled (and homeless) masses yearning to breathe free.”  

Soon, Baldheads were not the only ones leaving Jamaica. Nurses, teachers, police officers – whole elements of society with critical (and transferrable) skills left. By 1976 another Jamaican artist, Pluto Shervington (whose song Ram Goat Liver is considered by me to be the highest artform ever expressed by anyone, anywhere – move aside Michaelangelo!) was singing a celebratory nationalistic song of his own. “I Man Born ya” reiterated:    

“I nah leave yah

Fe go America

No way sah

Pot a boil ya

Belly full ya

Sweet Jamaica”

A year later, in 1977, he too was gone – with many “Baldheads” – to America. Today there are more than 1.8 million Jamaicans living in United States, Canada, and the United Kingdom, alone. Tens of thousands more (this writer included) live in the Cayman Islands. There were 15,391 Jamaicans here on work permits as at 18 September 2023, but many thousands more who are dependents, permanent residents or (today) also Caymanian (in addition to being Jamaican).

When any country has such a high proportion of its nationals’ seeking opportunity and safety in foreign lands, something has gone terribly wrong at home.

In 1962, the year of Jamaica’s independence, the murder rate in that country was 3.9 per 100,000 inhabitants. One of the lowest in the world. By 2021, Jamaica reached the disdainful record of 52.1 murders per 100,000 inhabitants. The highest in the world. (By comparison, in 2021, the murder rate (per 100,000 inhabitants) is reported to have been 29.2 in the Bahamas and 4.5 in Cayman). According to the Jamaica Constabulary Force, there have been more than 1,000 murders recorded in Jamaica every year since 2003. 

Aspects of the tragedy that befell Jamaica (and the Bahamas and Cuba) was foreseen. Cayman’s leaders (and many others) saw it coming. They asked themselves whether Cayman, with its unique society, culture, and way of life, could invite in foreign interests and people, and NOT ultimately, suffer the same fate as our much more established and resourced neighbors. We wanted the best of both worlds – economic development and growth but NOT at the sacrifice of our own people and way of life. 

The answer from Cayman’s leaders was timely, and it was brilliant. They called it the Caymanian Protection Law, 1971.

It took effect in 1972. 

The Legislation’s Memorandum of Objects and Reasons provided:  

“By reason of the tax advantages afforded to many people by taking up residence in the Cayman Islands, and the unprecedented prosperity of the tourist industry, there has arisen a grave risk that the social character of the Islands as well as the way of life of the population, may be adversely affected by the influx of private and business settlers, and other consequential factors. It is sought to enact legislation calculated to control this situation by affording means of protecting the traditional way of life of the Islanders by cushioning the impact of the establishment of international business interests and of settlement here by people who formerly had no interest in the public and private affairs of these Islands.”   

With such legislation in place, we could have our Heavy-Cake (and eat it).

It was genius. And it worked. 

Cayman’s population in 1970 was 10,000. By the year 2000 it was 40,000. In those first three decades following the implementation of the Caymanian Protection Law, it appeared Caymanians participated fully in the growth. They were employed in all manner of positions – and great emphasis was placed on their training and opportunity. Sons and daughters of the soil (with a disproportionately large proportion being those having traces of Cayman Brac Bluff-rock in their DNA) rose to the top of accountancy firms and law firms and international banks and hotels and tourism ventures.

The Law required the protection, and promotion, of Caymanians and of Caymanian interests. The world was welcome – but subject to strict conditions. The resulting Covenant inscribed:

If you compete – you must be in business WITH a Caymanian.

If you have skills – you must take reasonable steps to equip a Caymanian with those skills.

If you wish to work – you must prove that there is no Caymanian available to do that work.  

If Cayman is made weaker by your presence, and you had therefore been erroneously permitted to come and remain here – you must leave. 

You also needed to be self-sufficient. The ability demonstrated the capacity “to maintain yourself AND your dependents” was to be key.

Particularly from the Caymanian perspective, all fair enough – but to set the system in motion – there had to be a clear concept of who is Caymanian. The word had to be defined. The Act defined it – and provided a path for those who were not Caymanian to seek to become Caymanian. 

Enter Benson’s Label

As he stated on 27 September 1971 in describing the formal legal definition of “Caymanians”:

“We are not really conferring a nationality on ourselves. This is impossible. We are all citizens of the British Commonwealth, that is the United Kingdom and Colonies, and this is merely a label that will enable us to control certain activities within our own shores.”

What were the activities “the label” was intended to enable us to control?

Those benefits are supposed to include freedom to enter and remain in the Islands, freedom in employment, and freedom in business ownership. 

Access to free education, stamp duty waivers, scholarships, and free housing and healthcare (for those in need) were also added.  In accordance with our immigration laws, those who are not Caymanian (particularly if they are not also Permanent Residents) are generally not supposed to be accessing many of these benefits. Their doing so (particularly if at substantial cost to the Caymanian people) is usually contrary to the foundational intentions behind aspects of the Immigration legislation.

The Caymanian Protection system operated fairly well for its first three decades because it worked with the (often enthusiastic) consent and willing participation of Caymanians. The Caymanian people could see, feel, believe, and even know, that if they met an expatriate, that expatriate was doing a job that no Caymanian could, or was available, to do. If the expatriate was skilled, local people could know that the expatriates (or the expatriate’s employer) was training Caymanians. In consequence, the numbers of Caymanians unable to fulfill roles, continually decreased. Expatriates were often investors. Their projects and funding created opportunity and revenue for thousands of Caymanian workers, and hundreds of Caymanian owned businesses. Expatriates were customers, and teachers, and were prohibited (by law) from being competitors (unless they were competing on behalf of another Caymanian). Expatriates were also friends and colleagues, assimilating and working hand in hand with Caymanians, every step of the way. 

Every local business employed Caymanians, served Caymanians, and profited Caymanians – directly.

Everyone had to pay into a system – but only Caymanians could (routinely) take out of it. Membership had its privileges.

Social harmony continued and even increased. A true symbiosis developed between Caymanians and Expatriates. If you do well, we do well (and vice-versa). 

Those expatriates who came in the 1970’s, 1980’s and 1990’s were often a capable but humble bunch. They participated fully in all the Islands had to offer, but did so as guests – largely understanding the conditions and expectations of what was required of them – and ultimately, if they did everything asked of them, there was ultimately every prospect of them becoming Caymanian. They also had to deal with the realities of no television, cistern (or even well) water, mosquitos, and sometimes sporadic electricity. Such sacrifices were worth it. The quality of life was amazing. 

The standards imposed on the growing thousands of expatriates joining Caymanians on the journey were high. 

My recollections of those days include a senior government legal officer who inappropriately approached a woman at Sunset House bar, and an enthusiastic (and drunk) expatriate who saw fit to set fire to a Union Jack on West Bay Road. My recollections as to his state of (un)dress are less clear. In any event, the “miscreants” shared a common fate. Both departed our shores, permanently, within days. You see, all outsiders had to not only earn their right to be here, but also deserve their right to stay. Caymanians liked to see that. It helped everyone (including the many expatriates who came to settle amongst them) to leave their doors unlocked. And they did. 

Those high standards expected of those who come to be amongst us, as well as the expectations as to competition, training, and displacement of Caymanians in the workplace are still (effectively) the law today (at least from an immigration perspective, but not everyone looks at the rules from an immigration perspective).

Around the early 2000’s, much changed. The deference hitherto expected (even demanded) for the Caymanian people suddenly abated. The double “hits” of Hurricane Ivan and the influx of large numbers of persons with previously little to no connection to the Islands – including following the mass status grants a year prior, appear to have overwhelmed “the Covenant”- and the immigration authorities charged with monitoring (and enforcing) it.

The questions of whether a Caymanian could do a job, whether an employer had in place “adequate” training measures designed and intended to equip Caymanians with the skills required, and whether there was really (despite what the paperwork said) 60% Caymanian ownership and control in local businesses, abated. The laws (although we renamed some of them) did not materially change. Only seemingly our ability (and willingness) to impose them, or to even follow them with any consistency.

Many businesses continued to do the right thing (and still do to this day), but it is striking how competing businesses, one with 70% Caymanians on staff, and another (trading in a similar field), with (almost) none, were suddenly being seen. Compliance with some of the rules started, in some respects, to (at least) appear “voluntary.”

Part of the problem was that there was significant confusion over who was Caymanian and who was not. 

“Who you fah?” could no longer be relied on.

Prior to 1973, Cayman operated a “Jus Soli” (Right of the Soil) system, by which, if you were born here, you were Caymanian. That system is familiar to North Americans (and others from our region). But by 1977 we transitioned to “Jus Sanguinis” (Right of the Blood) – by which to be Caymanian, merely being born in Cayman was not determinative. The status of your parents, including their domicile, had to be taken into account, and the country of your birth became largely irrelevant. Then the whole question of citizenship needed to be grappled with – for we were (at least supposed to be) subjects, not citizens. The question of citizenship arose subsequent to and quite aside from the question of Caymanian status.

Societies, particularly outside of the Anglosphere, struggled with the distinctions, and some, unfamiliar with them, but now in positions of influence in both the private and public sectors, however unwittingly, started to ignore them. Many with a British Overseas Territory Citizen (BOTC) (Cayman) Passport or born in the Cayman Islands after 1977, seem to have been treated as Caymanian, even when they were not, including by some agencies of the Cayman Islands Government. This continues (although to a much lesser extent) today. Even The Department of Customs and Border Control asks on the Customs form: “Are You a Citizen of the Cayman Islands?” – and has (at least historically, but I gave up asking years ago) declined to tell anyone (or at least me) what that means. If you are an American citizen with the Right to be Caymanian but NOT a BOTC, do you tick yes? What of the person who has a BOTC (Cayman) Passport but is NOT a Caymanian (and may have no right to live in Cayman) – do they tick yes? 

Within recent months a tourist visitor, entering on a BOTC (Cayman) passport, had to struggle with officials at the airport to gain admission, as a visitor. Meanwhile, in that same month – a third generation Caymanian – was (in effect) treated as a tourist visitor when circumstances (the renewal of her Cayman Passport) compelled that she travel into Cayman with another countries’ passport.

Those things (no matter how exasperating after spending more than 15 years trying to get them fixed) are irritations. 

None of these things should be happening or causing any problems at all. 

But now, many of the irritations are becoming much more serious. 

The below appeared on the Department of Education website in the summer of 2023. It is still there. 

ADMISSION NOTICE

Standard and Late Registration are now closed for the 2023/2024 academic year.

Please note that any applications received between 1^st July, 2023 through 6^th August 2023 for Reception to Year 12 will be processed the week commencing 7^th August 2023

Registration for Nursery at East End Primary School will open on 1^st July 2023 and will close on the 31^st July 2023.

REGISTRATION APPLICATIONS CANNOT BE CONSIDERED FOR THE FOLLOWING YEAR GROUPS AS THEY ARE FULL:

• Clifton Hunter High School: All year groups
• John Gray High School: All year groups
• George Town Primary School: Reception and Year 1
• Red Bay Primary School: Reception, Year 1 and Year 6
• Prospect Primary School: Reception, Year 1, Year 2, Year 3, Year 5 and Year 6
• Joanna Clarke Primary School: Reception, Year 1, Year 4 and Year 6
• Theoline McCoy Primary School: Reception and Year 1

A number of Caymanians appear unable to place their children in Government schools. Many of them are economically vulnerable. They cannot afford to put their children in private schools (even if there are spaces – and often there are not!). In some cases, we are hearing anecdotally that some Caymanians may even be compelled to withdraw from employment to remain with their children and homeschool them. Some of the Government schools are overstretched. 30 students in a classroom (as some have suggested to be the case) is too many. Even those children fortunate enough to have a place in a government school, may be being short-changed. Of course, any deficiencies in our people’s ability to access education and reach their full potential, quickly harms us all.

This is not an opportunity to be critical of the Department of Education Services. In recent years, I have been repeatedly impressed by the professionalism, expertise, and dedication of several of their key personnel.

Concerned by the anecdotal stories we were hearing; we made an FOI request. We are impressed by the timeliness and completeness of the response. Despite popular belief to the contrary, there have long been significant numbers of expatriate children in Government schools. As at 19 September 2023, there are 5,503 students enrolled in the Government system. Of those, 866 are recorded as not being Caymanian. Further, a significant number of the Caymanians (although that number is unknown) will cease to be Caymanian on their 18^th birthdays. 

The rates of enrollment are interesting. In the period since April 2020, some 2,087 Caymanians are recorded as having been admitted into the system, as have 689 expatriate children.

The Department has kindly given us a breakdown of those expatriate children.

5 are Refugees/Asylum Seekers

29 are Expatriate dependents of Caymanians

301 are Expatriate dependents of Expatriate Civil Servants

238 are Expatriate dependents of PR Holders

113 are Expatriate dependents of Work Permit Holders

Since April 2020, around a quarter of all children admitted into the Government System are not Caymanian.

However, we confront these facts, there are 866 non-Caymanian children in Government Schools – at the expense of the Cayman Islands Government. That (in and of itself) will not be a tremendous issue to many. Where it gets serious is at the realization that (for the first time in our modern history) Caymanian children may be being denied access to those same benefits.

Some 40 Caymanian children are presently recorded as “awaiting Registration.” Many others will have felt “compelled” to access (perhaps the last) places in private schools. 

Although I am all for school re-integration (indeed, I think it critical), excluding Caymanians, is not the way to achieve it. 

Meanwhile, the cost-of-living crisis, taken together with difficulties in finding school places for their own children, is making a bad situation worse. Some teachers are leaving. 

We may not need to upset the apple cart. Apples are spilling all about us anyway.  

None of this should be taking us by surprise. We have had years of notice and opportunity to prepare for the numbers presenting at our overloaded systems. We (the Cayman Government) have issued birth certificates, and/or (for those who are not born Caymanian or in Cayman) immigration permissions (whether as a dependent on a work permit holder, a permanent resident, or a government employee) to everyone. We knew they existed. We knew how old they were. We knew when they would HAVE to start school. We even seem to have chosen NOT to count thousands of Temporary Work Permit Holders (or, it seems, their dependent children) as part of our official census data.  

Of course, ALL children within the jurisdiction must be able to access education. However, if we do not have the space for them, and the parents are unable to ensure their (paid for) education elsewhere, then following our Immigration (Transition) Act, what are they even doing here in the first place? 

That we appear unprepared to deal with the consequences of having so many children here, is troubling – and we are still a year away from the “Covid Baby Boom” hitting our education systems properly given the age that compulsory education commences. 

Mr. Benson’s label – and who it is assigned to – is clear. There is no grey area for 99% of those who are Caymanian. Those with “the label” are entitled to certain benefits. Those same benefits are supposed to be available to others only in limited and exceptional circumstances – and almost never in preference to, or the exclusion of, Caymanians.

The ability of any expatriate to “maintain themselves and their dependents“ remains described as “of paramount importance” in the regulations concerning the grant of Permanent Residence. That importance, no matter how great, is not uniformly followed. 

Applicants for Points-Based Permanent Residence with children of “school age” are deemed to have CI$15,000 less income than they in fact have in order to (in part) take account of the expenses incurred in accessing private education. Most work permit holders with children had a requirement on their work permits that requires their children to be in private school. Someone, somewhere, crossed out the word “private” and replaced it with “local.” Whilst that error is being corrected, the knock-on effects are concerning.

We have tried to extend the range of application of Mr. Benson’s label (fishing rights, the right to practice Cayman Law overseas, health insurance, free school lunches) but appear to lack the will to do so – so we end up extending almost all rights, to all – and then wonder why our reefs, infrastructure, and finances, cannot sustain it.  

We do this to ourselves.

Let’s hope that the Caymanian people continue to feel they are gaining adequate benefit, nevertheless.

The stresses are building. You do not have to read billboards to understand that we are well out of balance. 

Those that refuse to learn from history are doomed to repeat it. I remind the Government agencies charged with regulating all of this, of other lyrics of the late (and great) Bob Marley: 

“Please don’t you rock my boat, no

‘Cause I don’t want my boat to be rockin’.”

Some are starting to feel seasick. 

We need to seek calmer waters, but as we adjust our course, must also understand the reefs and shoals that lurk beneath. We need a steady hand at the helm. There is potential danger ahead. 

We have now lost two Ministers responsible for immigration (so far) this year. Neither were able to complete their work, and we now face being deprived of solutions. Solutions exist, but they will

require much work and joined up thinking and participation from every Minister (and Ministry), and the private sector, so safely bring us ‘round.  Even if we chart the course correctly, every loose end left streaming in the water, risks fouling our props. This is a time for extreme caution, and not a time to rush for easy answers. 

Shining a light on our circumstances, however we may have got here, does not change where we are. This lengthy piece is fervently intended NOT to fuel any divide but rather to place the concerns of some in context, and to energize those genuinely seeking solutions. We now have the opportunity to understand and reverse dangerous trends and secure a sustainable and enduring future for these Islands, including residents, investors, and importantly, all who proudly wear Mr. Benson’s label.