The new immigration reality

Cayman’s most recent round of proposed amendments to the territory’s Immigration Law will allow some non-Caymanian workers to stay here longer on work permits but will make it more difficult for them to obtain permanent residence.   

 

The changes proposed in the Immigration [Amendment][No. 2] Bill, 2013, are many and far-reaching.  

But Premier Alden McLaughlin said last week that the legislation by itself won’t get far without attempts by government entities and the private sector employers to conscientiously hire Caymanians for open positions.  

“I urge you as employers to participate in programs … to find Caymanians to fill the vacancies you may have in your businesses,” McLaughlin told an audience of hundreds at The Ritz-Carlton, Grand Cayman during the annual legislative luncheon. “If you can give the government the commitment to each employ at least one new Caymanian over the next six to nine months, this would go a long way to reducing unemployment.” 

The point was emphasized prior to McLaughlin’s address to the Chamber of Commerce by the board of the Cayman Islands Tourism Association, which sent out an “urgent” communication to its members, asking them to place work permit jobs coming up for renewal on a website for Caymanian job placement that CITA had created. 

According to the letter: “If we don’t do this, or if we are too slow or ineffective in getting real unemployed people into real jobs, our industry can expect to face further increasing pressure, rising criticism, greater difficulties and more refusals in applications for work permits and work permit renewals – even for those jobs that we feel certain there are absolutely no Caymanians available to fill or develop into that role.” 

Premier McLaughlin, while appreciating the sentiment expressed in the letter, said the government is not threatening any local companies with being put out of business. He noted that the new immigration bill makes it a criminal offense for companies that do not disclose that a Caymanian or permanent resident had applied for a work permit holder’s position. 

Chris Duggan, outgoing Chamber president, struck a different tone in his address at the Ritz-Carlton prior to introducing Premier McLaughlin. 

“All businesses should be allowed to obtain the required labor that they need,” Duggan said. “We must not prevent employers from obtaining foreign workers [for jobs where no qualified Caymanian has applied]. 

“[Cayman’s] population has to grow and it will grow. Putting up roadblocks to hinder development in growth is not the answer.” 

 

What’s the plan?   

If the amendment bill is passed, the current seven-year term limit on non-Caymanian workers’ residence, often referred to as the “rollover policy,” will be replaced. Initially, a 10-year term limit was proposed, but that has changed following discussions in Cabinet to create a nine-year maximum term limit.  

The proposed legislation seeks to eliminate the key employee designation now required to stay in Cayman beyond the current seven-year term limit. However, according to the bill, any key employee designations pending at the time the bill passes into law should still be determined. Current key employees will be given a presumption in their favor for renewals of their work permits up to the nine-year term limit on residency, government officials said.  

After the legislation takes effect, anyone who is able to reside continuously in Cayman for eight years will be allowed to apply for permanent residence – the right to live in the territory for the rest of their lives.  

Special permits, such as those awarded to caregivers or 10-year permits for certain management-level employees in the financial services industry, are being eliminated from the new legislation. However, any permits granted prior to the new law coming into effect will still be honored.  

Also discontinued in the amended immigration bill is the concept of the “final, non-renewable work permit,” typically granted after an application for permanent residence is denied or when appeals of work permit denials have been exhausted. In most cases, those individuals will be given 90 days to settle their affairs prior to leaving the islands, under the new legislation.  

The new bill grants the chief immigration officer, or designates, the ability to decide permanent residence applications and work permits when a Caymanian has applied for the position. Currently, immigration officers decide only certain noncontroversial work permit applications.  

 

Not easy  

There will be strict conditions following the award of permanent residency to any individual.  

First, the holder of a residency and employment rights certificate is generally restricted to “working within the particular occupation or occupations specified” by the relevant immigration board or the chief immigration officer who approved the residency application. “There shall be no entitlement to self-employment [for permanent residence holders],” according to the bill.  

It will be a responsibility under the new bill, if approved, for any permanent resident to notify immigration officials of criminal convictions, unemployment status, whether they continue to hold assets in the islands and any change to marital status or number of dependents.  

The immigration bill also sets a timeline for the purchase of another property if owners sell a property listed in their initial application for permanent residence. In such a case, the property purchase “shall be completed within 180 days of the sale [of the first property] unless there are exceptional circumstances” the law states.  

The employer of a permanent resident who holds the right to work is also required to report to immigration officials any time there is “any change in the holder’s circumstances,” including the worker being fired, promoted, demoted or redesignated.  

Any child of a residency and employment rights certificate holder does not have the right to reside in the islands as a dependent of the certificate holder after age 18 unless they are engaged in “full time tertiary education,” according to the bill.  

Permanent residence granted under the new bill can be revoked for several reasons, including subversive political activities or the causing or promotion of racism, whether within the Cayman Islands or outside of it; lying on a permanent residence application; conviction of a criminal offense in Cayman or elsewhere; becoming destitute; becoming mentally defective; acquiring a communicable disease making the person a danger to the community; the person engages in prostitution; the person fails to maintain the level of financial investment stated in his or her permanent residence application; working in a job not approved by an immigration board or the chief immigration officer; or if the person is “deemed by the governor to be an undesirable inhabitant of the islands.”  

PR requirements   

The requirements for being granted permanent residence will change. A review of the current immigration law focused on redefining criteria for granting permanent residence to align with government’s “economic, social and cultural objectives,” will inform the new permanent residence rating system. Fees for permanent residence applications will be increased from $300 to $1,000 if the new bill is approved.  

“The aim is to ensure persons granted permanent residence are drawn from a diverse cross-section of our society and are also assets to the community,” Ministry of Home Affairs Chief Officer Eric Bush said in August. “The revised criteria will also take into account the impact of the removal of the initial filter afforded by the key employee feature of the term limit process.”  

In other words, it will be much tougher under the new immigration system to earn permanent residence designations. The specific points system used to designate permanent residence will be contained in regulations to the Immigration Law if the amendment bill gains passage in the LA.  

Premier McLaughlin said that under the existing immigration system, it is likely that a person awarded key employee status will eventually be granted permanent residence. The same approval rate cannot apply if a significantly greater number of individuals are allowed to apply for permanent residence, he said.  

Under the existing system, local businesses essentially make the first decision on who gets to stay and who must leave when they choose workers to designate as key employees. The difference under the proposed system is that government will be the sole arbiter in the decision once a permanent residence application is received.  

 

TLEPS   

Non-Caymanian workers residing here on Term Limit Exemption Permits will be allowed to resume holding regular work permits under proposed changes to the Immigration Law. However, there will be time limits on their applications for permanent residence.  

As of now, those workers – 1,510 as of Sept. 16 – would have been required to leave the Cayman Islands when the Oct. 28 deadline on their term limit exemption permit expires. Since that time frame is simply too close to when the likely passage of the immigration amendment bill will occur, companies that employ the term limit exempted workers will be given until Dec. 9 to apply for new work permits for those individuals.  

One opportunity looming to assist in getting an estimated 1,900 unemployed Caymanians into suitable jobs is the pending Dec. 9 deadline. However, Premier McLaughlin says that local citizens are not likely to apply for a number of the positions available. “Over 900 are jobs as domestics, gardeners or caregivers … which Caymanians have generally expressed little interest in filling,” the premier says. 

The important legal question of how Term Limit Exemption Permit holders’ time spent on the islands over the past two years will be counted is also to be resolved in the new legislation. Current immigration law states that the time spent in Cayman on a Term Limit Exemption Permit would not count toward the eight years of continuous residency required prior to a permanent residence application being filed. Premier McLaughlin said legislation would be changed so that the term limit exemption period would be legally included in the total time spent in Cayman.  

That raises the specter of about 1,500 people applying all at once for permanent residence. However, the premier says a number of those applicants are not likely to attempt a permanent residence application anyway due to economic considerations.  

Time limits will be set on any application for permanent residence, whether from a Term Limit Exemption Permit holder or from a regular work permit holder. Any permanent residence application would have to be filed within the eighth year of the person’s residence in the Cayman Islands. For example, if a non-Caymanian worker arrived in Cayman on Feb. 1, 2006, and continued to work on permits until Feb. 1, 2014, that person would be able to apply for permanent residence as of Feb. 1, 2014.  

One exception is for Term Limit Exemption Permit holders or, in rare cases, other work permit holders, who have stayed in Cayman beyond eight years. Those permit holders who have been here for nine years will be allowed to apply, but those applications would have to be made within three months of the law taking effect.  

 

Offenses   

The immigration amendment bill sets out some stiff penalties for local businesses that fail to report job applications by Caymanians, spouses of Caymanians or permanent residents when applying for a work permit.  

The amendment bill makes it an offense – with a maximum first-time fine of $20,000 – for any employer to fail to disclose that information to the Immigration Department.  

Permanent residents will also be watched more closely by the Immigration Department. In the future, permanent residence holders will be required to submit an annual declaration in respect to investments, employment and other factors. Failure to comply will be an offense.  

In addition, the permanent resident must inform the relevant immigration board or chief immigration officer if there is any change to his employment circumstances, or face fines.  

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Major changes to the country’s immigration laws may be in store under proposed amendments.

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