Part V – Gainful Occupation of non-Caymanians
Work Permits and Key Employee Status
It was thought desirable to replace the term Exempted Employee and substitute Key Employee to clear up the belief that an Exempted Employee was exempt from the entire Term Limit provisions of the Law.
The powers of the both the Work Permit Board and the Business Staffing Plan Board to refuse applications for work permits are to be more clearly defined to combat abuse of the work permit system and to create provision for the refusal or revocation of work permits of persons who are convicted of offences under the Immigration Law and/or who have been fined by an Immigration Officer under the provision contained in the law.
With respect to key employee status a number of important changes are proposed. Employers are to be provided with the benefit of applying for key employee status for their employees at any time prior to the expiration of the worker’s final work permit or a Fixed Term Work Permit. Previously, the employer could only apply for key employee status at the same time as applying for the grant or renewal of a work permit. This created the situation where many employers missed the opportunity to apply for key employee status in respect of a worker and this understandably caused unreasonable hardship to many employers and employees alike.
It is also proposed to amend the principal law to the effect that any length of time spent in the Islands after the expiration of a person’s final work permit or his Fixed Term Work Permit pending the outcome of an application to have the person granted key employee status shall not be taken into account by the Caymanian Status & Permanent Residency Board in determining his length of legal and ordinary residence in respect of an application for permanent residence in the event that the application for designation as a key employee is denied.
Where a worker is designated as a key employee it is proposed that the law be amended to create a presumption in favour of renewals until that worker has been legally and ordinarily resident in the Islands for a period of nine consecutive years to enable him to apply for permanent residence. This presumption may however be rebutted in certain circumstances including where a qualified Caymanian is available and desirous of filling the position.
It is proposed also that provision also be created for the Governor-in-Cabinet to determine by way of policy directions to the Board that workers employed in certain professions or vocations, or categories thereof, are to be designated as Key employees.
Under the proposed amendments there is no right of appeal to the Immigration Appeals Tribunal in respect of a decision of the Work Permit Board or the Business Staffing Plan Board to refuse an application for key employee status.
Work Permits and Term Limits
The introduction of limitations concerning the length of time that a worker may remain in the Islands on a work permit remains a central feature of the revised legislation. However, that section of the law concerning term limits (section 50) has been comprehensively re-drafted.
In the principal law the Work Permit Board and the Business Staffing Plan Board may not grant or renew a work permit in the case of a worker whose term limit has expired until two years after he has left the Islands. Under the proposed amendment the Boards or the Chief Immigration Officer may not grant a work permit or a temporary work permit until the worker has left the Islands for a period of one year.
Provisions relating to persons who are working by operation of law, i.e. persons whose final work permit has expired and who have applied for the grant of permanent residency prior to its expiry or within ninety days after its expiry but where the application has not yet been determined, are to be amended to require such persons to receive an endorsement in their passport acknowledging that they are working by operation of law. To obtain such an endorsement would require payment of a fee equivalent to the fee that was applicable to their final work permit. Previously, such persons were able to work without paying a work permit fee and were unable to have their stay on the Islands clarified by way of an endorsement in their passport.
There are proposed new provisions in relation to persons who have reached the end of their term limit but who are married to another work permit holder, a Government employee or a person who is working by operation of law. Such persons may, during the currency of the spouse’s work permit or government contract or in the period during which the spouse is working by operation of law, apply for the grant of a work permit or the renewal of an existing work permit. There are, however, new limitations on the length of time that work permits can be granted on this basis. Also, the period of any work permit granted or renewed under these provisions shall not be taken into account in relation to an application for the grant of permanent residence.
Temporary Work Permits
Under the proposed amendments the Chief Immigration Officer or his designate will now have the power to vary or modify the terms of a temporary work permit.
It is proposed that the law also be amended to remove the ability of a worker to continue in employment during the period between the expiry of the temporary work permit and the outcome of the application for an annual work permit or any subsequent appeal thereof. In effect, this reverts to the situation that existed prior to hurricane Ivan.
Business Staffing Plans
Under the principal law the deadline for the submission of a business staffing plan application for those companies that are required to do so was until 31 December 2005. This deadline has now been extended to 31 December 2006 for those companies who had carried on business for six months or more on or after 1 January 2004 and who employ fifteen or more persons on work permits. For companies that do not fall within this category they will be required to submit a Business Staffing Plan within six months from the date upon which they commence employing fifteen or more persons on work permits.
There is now also a proposed statutory requirement that a company which possess a valid business staffing plan certificate must apply for the renewal of the business staffing plan before the expiry of the existing plan and shall be permitted to continue to operate under the existing terms and conditions of the expired plan pending the renewal of the plan.
It is proposed that neither the Work Permit Board nor the Chief Immigration Officer may entertain an application for a work permit or a temporary work permit where the company concerned is in breach of the requirement to possess a business staffing plan.
With respect to business staffing plans, it is proposed that the Business Staffing Plan Board be granted the authority to vary or amend a business staffing plan.
It is proposed that in the revised legislation an Immigration Officer above a certain rank will have the power to impose a fine up to a prescribed limit on immigration offences. The law would retain provision, however, for higher fines to be imposed by the court on summary conviction.
Defence of having made ‘reasonable enquiries’
Whilst it will still be possible for a person charged with an offence under Part V of the law to use as a defence that he had made reasonable enquiries to determine whether he was in contravention of this part of the law, the revised law now specifies what will constitute ‘reasonable enquiries’.
Proposed new offence in relation to unlawful employment
It is proposed that a new offence be created in the revision to the law which would apply to persons who do not have permission to work in the Islands but who are found in or in the vicinity of a place of work with any article in their possession for use in the course of any gainful occupation. The article in their possession will be deemed to be with them for the purpose of work unless they are able to prove the contrary.