Legally Speaking: Presenting the key to being ‘key’

Contrary to assertions in some press, the maximum period which an expatriate worker can remain in the Cayman Islands is not always seven years. The Law provides options for many individuals to remain well beyond that period and to have the opportunity of becoming a permanent part of the Cayman Islands community.

The most obvious option for businesses is to seek to have an employee who is subject to a seven year term limit designated as a ‘key employee’ under the Immigration Law. As is widely known, key employee applications can be made by employers at any time prior to a worker reaching his or her term limit.

Are you a key employee?
Before the Work Permit Board or the Business Staffing Plan Board can designate a worker as a key employee, the Law requires the relevant Board to be satisfied that the worker fulfils one or more of the following requirements:

  • The worker is recognised as having particular expertise in his or her field of practice, trade or employment and the Board recognises that there is difficulty in attracting such persons to the Islands or retaining such persons within the Islands;
  • The employee is or will be directly involved in training Caymanians or developing their skills in the field in which he or she is employed or practices and his or her expertise in this regard is important to the effective continuation of such training or development;
  • The worker is a professional employee whose expertise and skills are in short supply globally and are not available in adequate measure in the Islands and it is of economic and social benefit to the business or the Islands to attract such skills to the Islands;
  • The worker’s absence from the Islands will cause serious hardship to his or her employer, to Caymanians, or be detrimental to the Islands;
  • The worker’s business contacts are, or will be, of importance to the continued success of the business or its contribution to the Islands;
  • There exists other economic or social benefits to the Islands by virtue of securing or retaining the worker’s specialist skills or expertise; or
  • The circumstances of the worker’s particular case are considered by the Board to be exceptional and to justify a special reason to employ him or her or to allow the worker to be designated as a key employee.

However, simply meeting one or more of those criteria may not in and of itself be enough. The Law requires the Board to also take into account “such particulars, if any, under Section 44(3) or (4) as relate to the application.” This latter point is often missed by applicants.

Sections 44(3) and (4) are, perhaps, best described as the “Caymanian Protection” provisions in the legislation and it should be remembered that it is for this purpose that the law was first conceived. These provisions require that the Board must be satisfied with the extent to which the employer has established adequate training or scholarship programmes for Caymanians.

Furthermore, the Board is required to take into account the character, reputation and health of a worker and, where relevant, their dependants. Additionally, the Board must examine a key employee candidate’s professional and technical qualifications, their experience and competence to undertake the position applied for, the economic and social benefits which accrue to the Islands as a result of the worker’s presence, the sufficiency of the resources of the worker to be able to adequately maintain him or herself and any dependants, the worker’s use of the English language, and the nature of the accommodations available for the worker and any dependants.

The Board is further required to take into account the protection of local interests and in particular, the interests of Caymanians, as well as the availability of the services of the worker amongst other persons already legally and ordinarily resident in the Islands.

If my key employee designation is turned down, can I appeal?
It is generally not possible to appeal a negative decision of the Work Permit Board or Business Staffing Plan Board in relation to an unsuccessful key employee application. However the employer may re-apply three months after a refusal, provided that the employee is still working under a valid permit and that such application is made before the expiry of the employee’s seven year term limit.

Businesses are therefore well advised to consider all the above issues and specifically address them when submitting key employee applications – particularly if time constraints may only allow one opportunity to apply for key employee designation for a critical worker.

Disclaimer: This article consists of general information only and is not intended to be legal advice. Whilst every effort is made to ensure the accuracy of this information, legal advice should be obtained from a qualified lawyer on any legal matter.

 

Nick-Joseph-Colour

Appleby partner, Nick Joseph

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