Offshore Business Update: Cayman Islands

Department for International Tax Co-operation (DITC) Filings

On 15 April 2021, the DITC announced the following CRS and FATCA reporting deadlines for the 2019 and 2020 reporting period:

On 11 January 2021, the DITC announced that reporting deadlines for Economic Substance (ES) had been further extended, as outlined below. The revised reporting deadlines, which apply only for this first year, are as follows:

Cayman Islands Monetary Authority (CIMA)

Normal services have been restored at CIMA’s offices.

Measures undertaken by CIMA to assist the financial services industry in the face of the pandemic included extensions for filing regulatory returns, waived fees for such filing extensions and acceptance of alternatives for notarised documents.

CIMA also issued an advisory to assist regulated entities with AML/CFT compliance during Covid-19. It included helpful guidance on matters such as possible threats and vulnerabilities and how entities may verify information (both at the time of establishing relationship or as a part of ongoing customer due diligence) whilst observing curfew, social distancing or self-isolation.

In lieu of a notarised affidavit, CIMA will accept written confirmation from an operator of a fund, applying to be registered/licensed pursuant to the Mutual Funds Act or Private Funds Act, authorising the registered office or other service provider to file the fund’s registration/application on behalf of the operator. CIMA will accept uncertified resolutions that confirm the de-registration/cancellation date of a fund.

CIMA published a notice advising that private funds with a fiscal year end falling between 7 February 2020 to 31 July 2020 would be granted an additional three months in which to file this documentation.

COURT FILINGS

The Chief Justice has issued a practice direction that formalises the e-filing that had been introduced as a response to the difficulty of paper filings. The direction provides for the court file to exist in electronic form and for documents to be sealed using an electronic, digitally certified seal. The electronic file and seal have the same status as their hard copy counterparts. The practical importance of this is that it allows originating process, such as writs and petitions to be validly issued in electronic form at a time when paper filing is not possible. It prevents the legal process being stymied by an inability to complete the formality of issuing using paper filing.

The Chief Justice has also issued a practice direction giving guidance on the remote notarisation and attestation of documents and the administering of oaths by electronic means. This is to be read in conjunction with enabling regulations made on 17 April 2020. The practice direction identifies the formalities that must be satisfied regarding presence in the Islands, the transmission of documents, the recording of the notarial act and identification. The practice direction also applies to attestations by Justices of the Peace.

The Courts are open for all services and public attendance at the Court. The Courts Office continues to accept filings electronically, but with an undertaking that the documents being filed are the final versions to be filed with the Courts. However, the Courts Office now also permits in-person filings at the counter. On-line payments must be made in the case of on-line filings and in-person filings must be accompanied by payment in cash or by credit card. Court searches should continue to be done on-line, but if there is an absolute need for an in-person search, appointments can be scheduled through the Supervisor of the Civil Registry. Affidavits that are filed electronically must now be fully sworn.

The Cayman Islands Judicial Administration has made available to members of the public, as of 22 July 2020, access to the public registers via its website. Upon registration, full access is available to all registered users.

LAND REGISTRY

In light of the easing of restrictions in the Cayman Islands, persons can now file their documents and pay their fees in person at the counter. Lawyers and banks may still pay fees by domestic transfer (it is not an on-line facility as such), but hard copies of the registerable documents are required to be delivered to the Registry.

The Passport and Corporate ServiceS Office

The Passport and Corporate Services Office is accepting documents for legalisation/apostille purposes. Normal services have been restored.

Notary Public

A notary public can, on prescribed conditions, “communication technology” carry out virtually a notarial act, such as witnessing the execution of a document by a “remotely located individual” (who must demonstrate that he or she is physically situated in the Cayman Islands).

The regulations shall cease to have effect on 16 April 2022 or at such other date as Cabinet may appoint by Order.

Virtual Witnessing

The Property (Miscellaneous Provisions) (Amendment) Act, 2020 came into force on 7 January 2021, providing for the virtual witnessing and attestation of required signatures for the execution of a deed or instrument under seal.

NEW RECOVERY FUND FOUNDATION

Appleby recently advised on the structuring of a new Cayman Islands foundation company established to manage a private sector-led recovery fund to assist the Cayman Islands in the wake of the Covid-19 pandemic. The fund received an initial injection of USD1 million, a personal donation from Cayman businessman, Mr. Kenneth Dart. The fund will be managed by the newly established foundation known as R3 Cayman Foundation. The goal of the fund, as listed by the foundation, is to “support readiness, relief and recovery efforts in the Cayman Islands in response to emergencies and disasters, such as but not limited to the Covid-19 pandemic”. Following its establishment, R3 Cayman Foundation was registered as a non-profit organisation.

The Cayman Online Registry Information Service (CORIS) is the main means of obtaining publicly available information about exempted limited companies, LLCs and exempted limited partnerships. It is an electronic register and its functionality has not been affected by measures put in place to deal with Covid-19.

Court searches involve the inspection of the register of writs and originating process and the register of judgments. The Cayman Islands Judicial Administration recently launched an online platform for performing these searches and these searches are not affected by Covid-19.

Certificates of good standing are being issued by the Registrar of Companies within normal processing timeframes.

Land Registry searches can be conducted electronically by those with subscriptions to the online search service. Personal searches at the Registry are also an option, although this is not in practice the way the legal profession conducts searches.

The Chief Justice has made two practice directions to facilitate remote hearings. These remove restrictions on holding trials by video, remove the requirement for parties to attend the courtroom in person and enable greater use of paper only hearings. The practice direction also explains what has to be done to satisfy the need for hearings to take place in public when they are taking place entirely online. A recording must be made of the hearing and the recording must be placed on the Judicial Administration website. The Court of Appeal’s most recent session has been successfully held with the Justices of Appeal presiding from their homes in the UK. The Financial Services Division and other civil courts have carried on their business using technology to hold remote hearings at which there is no appearance in person. The Courts resumed all services and public attendance at the Court on 7 July 2020, subject to social distancing regulations and limitations on public gatherings.

Covid-19 has been successfully controlled in Cayman with, among other measures, an extensive testing and contact-tracing regime. There are currently only 16 known active cases of Covid-19 (all arriving travellers, isolated in government quarantine facilities or other approved form of isolation). As a result, restrictions for suppressing Covid-19 are now minimal and, aside from the tourism/travel/hospitality sector, life in the Cayman Islands has mostly returned to normal. Generally, permitted gatherings in indoor public spaces are now limited to 500 persons (and 1000 persons for outdoor gatherings). Social distancing is no longer mandated and face masks are now only mandatory where required by the Medical Officer of Health or by the owners or operators of certain facilities (e.g. health care or residential home care facilities and airports).

As of 19 August 2021, a total of 99,635 doses of the vaccine had been administered in Cayman, with 50,884 persons (72% of the estimated population of 71,106) having received at least one dose of a Covid-19 vaccine and 48,751 (69%) having completed the two-dose course.  There are currently 8 known active cases of Covid-19 (all arriving travellers, isolated in government quarantine facilities or other approved form of isolation).

There has been a soft reopening of Cayman’s international airports with approved passengers (having applied for and received travel approval from the Cayman Islands Government via its Travel Cayman website prior to travel) required, on arrival, to spend a quarantine period either (a) in isolation at home or another approved location, wearing an electronic monitoring device (on a wristband); or (b) in a Government quarantine facility, at their own expense.

Upon arrival in the Islands, a person who wishes to enter the Islands and who had, at least fourteen days prior to the person’s proposed date of arrival in the Islands, completed an approved vaccine course shall, provide a sample to complete a PCR test for the virus no more than 72 hours prior to the departure of the person’s flight to the Islands and provide a customs and board control officer with a vaccination certificate and a medical certificate which shows that the person had a negative PCR test no more than 72 hours prior to the person’s flight to the Islands and specifies the name and address of the approved laboratory where the test was performed and comply with the directions of the Medical Officer of Health with regard to further testing for the virus prior to leaving any place or facility of quarantine or isolation for not less than five days, where the vaccination certificate is issued by the Cayman Islands Health Services Authority or can be securely verified and ten days where the vaccination certificate cannot be securely verified, at a private residence or such other place or facility of quarantine or isolation as specified by the Medical Officer of Health.

Currently, the 5 day quarantine only applies to people who can provide vaccination certificates issued in the Cayman Islands or the UK, as those are the only ones that can be securely verified, according to officials.

Unvaccinated persons including children will still need to undergo a 14-day quarantine. Family members quarantining with the children would also need to remain in isolation for 14 days. On day 15, they will be tested for Covid-19 and will be released from isolation or quarantine if they test negative (test results are typically returned within 24 hours). Anyone who has not obtained the Government pre-approval for entry will not be permitted to board the inbound flight.

By law, no one is permitted to visit a place or facility of quarantine or isolation other than the Medical Officer of Health, a person designated by the Medical Officer of Health for the purposes of surveillance or management of a person in quarantine or isolation, or any person who has the written permission of the Medical Officer of Health or a person designated by the Medical Officer of Health.

Categories allowed to enter the Cayman Islands include:

• Caymanians, permanent residents, work permit holders and their families; and
• Homeowners, students holding a valid visa to study in the Islands and persons with close family ties to residents or work permit holders.

Inbound travelers who are not Caymanian or Cayman Islands residents will be required to confirm that they (a) have a valid health insurance policy that includes coverage for Covid-19; or (b) understand the financial risks they are taking and that they have independent means to cover their medical costs.

A person who is required to stay in a place or facility of quarantine or isolation shall be liable to pay for any costs associated with the person’s accommodation in such a place or facility.

The following persons who provide evidence that they reside in the Islands and who are required to stay in a place or facility of quarantine or isolation which is operated by Government are not required to pay the costs of accommodation at that place or facility —

(a)     a person who provides evidence that he or she is a returning student;

(b)    a person who provides evidence that he or she travelled for the purposes of government business;

(c)     a person who provides evidence that he or she travelled to represent the Islands in a sporting event as part of a national team;

(d)    a person who provides a medical certificate signed by a medical practitioner that he or she travelled overseas in order to obtain medical services;

(e)     a person who is a parent, guardian or caregiver who provides evidence that he or she travelled overseas for the purposes of taking his or her child, or a child in his or her care to —

(i)                  an overseas educational institution; or

(ii)                represent the Islands in a sporting event as part of a national team; and

(f)      a person who provides evidence that he or she had responsibility to take a child or an adult overseas to obtain medical services.

The penalties for breach of the regulations are serious, with a maximum of USD10,000 and imprisonment to two years.

The Port Authority of the Cayman Islands remains closed to cruise ships until further notice.

The Cayman Government has announced a phased border reopening plan reflecting a gradual reduction of quarantine periods and easing of other travel restrictions. The plan calls for the removal of GPS monitoring of vaccinated arriving travellers effective 9 August 2021. This will allow Government to assess the impact on the community and build capacity to manage the increase in traveller volume anticipated with the limited introduction of tourism effective 9 September 2021 (subject to the achievement of an 80% vaccination rate). Some restrictions are anticipated in that reopening phase, including a flight slot management system, allowing Government and the hospitality industry to develop capacity for dealing with larger volumes of travellers in preparation for high season. If all goes well, effective 14 October 2021 quarantine measures will be removed for all securely verified vaccinated arriving travellers and effective 18 November 2021 unvaccinated children (under age 12) will be allowed to travel with vaccinated adult tourists. In the meantime, Government will continue to assess the pandemic in local and international contexts to determine when and how to proceed with further relaxation of restrictions, with the first such assessment (also considering cruise tourism) anticipated by 27 January 2022.

The Immigration (Transition) (Global Citizen Exemption) Regulations, 2020 provide that a person meeting certain qualifications may apply for the grant of a Global Citizen Certificate. Successful applicants (and their dependents) may reside in the Cayman Islands for a period of up to 24 months under an exemption from the immigration and work permit requirements that would otherwise apply under Cayman’s immigration legislation. The applicant must be employed abroad and must not offer any goods or services to any person or entity in the Cayman Islands. The programme has proved very appealing to digital nomads who can work remotely. The deadline for making the application is 31 October 2021 (or, if the regulations are extended, no later than two years before the new expiration date of the regulations). For the full text of our eAlert on this topic, click here.

With respect to economic substance (ES) requirements, the DITC has acknowledged that Covid-19 may impact travel, which may in turn affect the ability of some entities to hold their board of directors meetings in Cayman. The DITC has noted that the “directed and managed” requirement is only one element of the ES test, and whilst travel restrictions may be taken into consideration on a case-by-case basis when determining whether an entity has passed or failed the ES test, the DITC has been clear in pointing out that this consideration would impact on 2020 reports, which are due in 2021. Appleby considers it prudent for all entities in scope of the ES regime to carefully document their meetings and specify the challenges faced in addressing the “directed and managed” requirement.