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HRC: Cuban refugees caught between incompatible laws

Feb 18, 2021

(CMR) The Human Rights Commission has identified a legislative gap that has been highlighted as a result of the recent protests by Cuban nationals and their families on the steps of the Government Administration Building.

CMR understands that on Tuesday government issued the wife of one of the protestors a two-year certificate that allows her to remain and work in the Cayman Islands without the need for a work permit. It is unclear if this is the same Residency and Employment Rights Certificate status that foreign nationals married to Caymanians are able to obtain.

The protests have been ongoing for over 13 days now and have raised a number of questions about the legal entitlement that family members of refugees holders have available to them.

On Friday afternoon CMR attended the Administration building when it was disclosed that the husband had been permitted to go inside the building with his young child. However, the wife, Erica Alvarez-Freites, was not allowed inside.

She explained that she had been arrested for a number of offenses because of the protest and as a result had her passport confiscated.

She also explained in a very emotional state that she was simply fighting for what she saw as basic rights:

Days before we had the opportunity to interview two other Cuban nationals about their predicament with a view to understanding precisely what they were asking for and also assisting them in understanding why some Caymanians are insulted by the protests:

The statement issued by the HRC reads in full:

The Human Rights Commission is aware of the general concern and public interest in relation to the matter of the Cuban refugees who have been actively and peacefully protesting on the steps in front of the Government Administration Building in the past week. As a brief background on the matter, a Cuban political refugee is seeking rights for his family to be granted residency and employment rights for his spouse in the Cayman Islands.  This ongoing sensitive matter has identified a gap within the Customs and Border Control Act, 2018 (the “Act”), as there is currently no provision to regularise the expatriate spouse.

The Commission has been working in the background to seek a sound resolution to address this matter.  The Commission has been in correspondence with the Ministry of Employment and Border Control (the “Ministry”) since 2019 and upon identifying the inability to add spouses to asylum approvals which is in accordance with s.113 of the Customs and Border Control Act, 2018, the Commission has expressed recommendations to consider a prima facie conflict between the Act and s.9 of the Constitution – Right to Private and Family Life, as well as the United Nations Convention relating to the Status of Refugees, to which Cayman is a signatory.  Furthermore asylum grantees are required to be treated equally to nationals, and therefore spouses should be able to apply for Residency and Employment Rights Certificate.

The Ministry has indicated that work is currently being undertaken to amend the Act to address these concerns.  Due to the sensitive nature and the alleged breach of human rights in this regard the Commission continues to advocate for the urgent remedying of this matter to remain a top priority particularly for the incoming Government, so that no one residing in these beauteous Cayman Isles are disenfranchised in any respect.

The referenced 2009 letter correspondence to the Ministry of Employment and Border Control, can be found on the Commission’s website