Top six reasons to reform CI’s immigration system

Of all the problems facing the Cayman Islands and its people none are as seemingly bedevilling and intractable as its immigration policy. In fact, you’re probably sick of reading the many complaints of private sector employers. But wait! This column isn’t another rant about how the system has caused firms to contract or up and leave. It’s not another attack on the rollover policy. And it’s not another attack on beleaguered Immigration Department staff. 
Steve McIntosh, CML Recruitment’s CEO investigates.

To my mind, the vast majority of editorialising on the subject of immigration policy has neglected to properly consider what is probably the most important question of all. Does the system work for Caymanians?

After all, Caymanians are the only relevant stakeholder in consideration of the effectiveness of any government policy. The government is elected by the Caymanian people to serve them collectively, not to serve business or special interests, and certainly not to serve workers “visiting” from foreign countries. The extent to which those groups factor in the study of immigration policy is only the extent to which their benefit is aligned with that of the Caymanian public (directly or indirectly).

Although a great many of the islands’ employers are themselves Caymanian, I believe it is safe to say that the vast majority of Caymanians are not employers (at least not in the corporate sense). They are employees or prospective employees. They are therefore concerned mainly with matters of securing employment and advancement. Viewed from this perspective, is the system working for Caymanians?

To cut to the chase, it is not. Why? Let me count the ways.

First, consider that great bugbear of the private sector: excessive delay. If a work permit grant takes three months to be heard, the Caymanian that has potentially been disenfranchised has not benefited. Normally, they will have been forced to accept some other employment or remain unemployed in the meantime. How much less useful is an appeals process that can take two years?

Although recent changes to the Work Permit Board have, to the credit of the new chair, resulted in a dramatic reduction in some wait times, it remains to be seen whether this will become the new normal for all permit types and all boards. Let us hope so. The point remains: Caymanians need fast decisions as much as employers do.

Second, there is no consistent requirement for employers to refer jobs to the Department of Employment Relations. To force an employer to refer jobs to DER, the board must normally defer a work permit. Not only does this undermine the effectiveness of DER, it means that by the time the referral is made, there is necessarily an ex-pat candidate in which the employer has invested a good deal of time. Employers should be required to refer all jobs to DER (concurrent with the advertisement period). DER should be required to provide a timely response and non-response should be sufficient for the employer to proceed.

Third, the onus is on employers to self-report Caymanian applicants. How would Immigration know if one was not reported? (This cuts both ways, if a Caymanian complained they had applied but not been considered, what evidence would there be they had in fact applied?) There is no system in place to prevent unscrupulous employers from failing to disclose Caymanian candidates. Detection depends on a complaint from the disgruntled applicant.

Fourth, there is almost no routine enforcement activity to verify employers’ disclosures as to job descriptions or pay and benefits in work permit applications. Nothing beyond the employer’s own ethical standards prevents an employer from describing the job from hell with pittance for pay, thus clearing the field for the preferred candidate. What he or she actually does when they show up, and how much they are paid for it, may bear little resemblance. There is a very easy fix to this issue: employers should be required to attach signed employment contracts to every application. Employees are unlikely to collude in such a rouse and even less likely to agree to sign a contract for a job they wouldn’t do at a salary they couldn’t live on.

Furthermore, there is no enforcement (that I am aware of) of the employee living standards required by law. Though on the face of it such enforcement might seem to benefit only the work permit holders, offering pay that is too little to live on is an indirect means of Caymanian disenfranchisement.

(As a side note, it has always struck me as unreasonable to hold the employer liable for their employees’ living standards. CML has around 13 employees and I confess I do not take regular trips to inspect their abode. They could be living from a suitcase on the beach and dining from dumpsters for all I know, though it seems unlikely given their impeccable appearance and generally irreproachable standards of personal hygiene. Furthermore, I hardly think they would entertain the regular unannounced visits from the CEO that would be required for me to comply with this stipulation! I digress.)

Fifth on the list is temporary work permits. Without a requirement to advertise the job, register with DER, or make any other effort to find a Caymanian, temporary permits are a primary means of state-sanctioned disenfranchisement. Problem is, employers often need to employ someone at short notice and may not happen to know of a Caymanian seeking work. Again, the answer is for a dramatically sharpened process at DER; one which would turn an enquiry for Caymanian applicants around on the spot.

Finally, and most galling of all for a public rightfully expecting protection from their public institutions, is the lack of an ability to appeal the decision in a case of potential disenfranchisement. If an employer is turned down for a work permit, they can appeal the decision all the way to the Grand Court. But if the permit is granted, the overlooked Caymanian can officially go fish. Caymanians should be allowed to appeal permit decisions, for a nominal fee sufficient to preclude frivolous appeals.

It’s worth noting the downside for the private sector in all of this, which is that a process lacking in effective protections, reasonable transparency and failsafe recourse is likely to result in a lot of negative hearsay and free-floating animosity looking for a home. Better to resolve each and every case and prove to all stakeholders that no one was disenfranchised (if that is indeed the case).

One surprising aspect of the immigration debate is the infrequency with which the system itself is invoked as a culprit by local activists that prefer to point the finger at employers perceived to be acting in bad faith or officials seen as making bad decisions.

A system that worked properly for Caymanians (as well as employers) would go a long way to resolving some of the tension. That is not an unachievable goal.