Tim Prudhoe for the Plaintiffs
Introduction
1. The Plaintiffs, both male, were married in Florida, USA on 2nd November 2020. Same-sex marriages became legal in Florida in 2015.
2. Mr Sankar is a Turks and Caicos Islander having been granted status on 19th May 20211. On 16th August 2021 Mr Haymon applied for a residence permit pursuant to s.29(1) of the Immigration Ordinance (Cap. 5.01) (‘the Ordinance’). Mr Haymon was already lawfully allowed to remain in the Turks and Caicos Islands (‘TCI’) by virtue of holding a home-owner permit. The purpose of applying for a residence permit was to give Mr Haymon the right to work.
3. S.19 of the Ordinance imposes restrictions on engaging in gainful employment within the TCI and provides a list of exemptions of persons to whom the restriction does not apply. S.19 (1)(b) provides an exemption to “the spouse of an Islander [who is] the holder of a Residence Permit”. A home-owner permit does not carry the privilege of being able to take up gainful employment.
4. The Immigration Regulations2, made under s.118 of the Ordinance provide3:
“24. (1) An application for a Residence Permit may be made by or on behalf of an applicant to the Director in Form 1 set out in Schedule 4 and shall contain the particulars required therein. (2) An applicant must show to the satisfaction of the Director that condition A, B or C is met.”
5. Conditions A and B contain restrictions on engaging in gainful occupation, but condition C does not and provides:
“(5) Condition C is that the applicant is the spouse of an Islander or a British Overseas Territories Citizen, and lives with that spouse.” (Emphasis added)
6. However, Regulation 25(3) provides:
“(3) If the application is for the issue of a Residence Permit because the spouse condition applies, the application form shall also be accompanied by an undertaking in writing that the applicant, while resident in the Islands, will not engage in any gainful occupation other than undertaking such activities as are necessary to oversee his investment.”
7. This restriction and its apparent conflict with s.19(1)(b) of the Ordinance was not dealt with by either party in submissions/argument and whilst noting, it is not something that the Court needs to resolve in this action.
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