Cayman contemplates a seismic shift in its current laws and policies dealing with foreign workers, setting an ambitious timeline for approval of all these changes
By now, the outline for the People’s Progressive Movement government plan to reform immigration is well known.
Premier Alden McLaughlin’s proposal to abolish the seven-year term limit on foreign workers’ residence, eliminate key employee status designations and let everyone who stays in Cayman for eight consecutive years apply for permanent residence has been around since 2011.
However, what may be considered an even bigger change to the country’s current immigration policy is ‘phase two’ of the government reform proposal – dropping immigration boards from the initial application process.
“The government will amend the Immigration Law and policies to … eliminate the current system of boards,” according to a statement summarising the plan that was released last month by government.
The “big-picture” idea, according to Premier McLaughlin, is to eventually have as many work permit, permanent residence and other immigration-related applications as possible dealt with by the Immigration Department.
Right now, immigration approves or denies a significant number of work permits. However, the ruling Progressives government says its goal is to have immigration handle all initial applications and leave only appeals of permit denials to entities like the Work Permit Board and Business Staffing Plan Board.
Some serious discussion will be needed on this point, McLaughlin admits. “I’m told by those experts within the system that we’re probably going to need to retain a board to deal with more problematic matters [work permit applications where a qualified Caymanian applied and did not get the job, etc.].”
To review this proposal, government has established a Work Permit Process Review Committee to look into a number of aspects within the existing immigration permit system. The committee will work toward the goal of bringing further amendments to Cayman’s Immigration Law by May 2014.
For a number of years, there has been a push within the central government service to move away from a system of politically-appointed boards hearing immigration applications.
To some extent, that has been achieved by the Immigration Department, which now processes thousands of what are considered “non-controversial” work permits. However, in any case where a suitably qualified Caymanian has applied and a non-Caymanian is given the job, either the Work Permit Board or the Business Staffing Plan Board must hear each separate application. In addition, the more complex applications for key employee status [the right to stay two years beyond Cayman’s current seven-year term limit] and for permanent residence are all currently heard, individually, by volunteer boards.
The problem, according to long-time immigration boards volunteer member Sherri Bodden-Cowan, is that the current system was created during times when things moved quite a bit slower in the Cayman Islands.
“I remember Mr. Ian Boxall … telling me that, when he came to the island in 1969, he was work permit number 29 for that year,” Bodden-Cowan says. “The volume of work … has increased tremendously since the early 1970s.”
By 2008, there were more than 26,000 work permit holders and individuals working here on government contracts. That number has steadily declined since, but levelled off at about 20,000 permits and government contracts since late 2011.
Bodden-Cowan, who most recently served as chairperson of the Work Permit Board, says her group would often meet for eight or nine hours per day, twice a week, to get through all the permit applications.
“The idea of having persons who already have full-time jobs sitting once a week to tackle a mammoth task such as immigration board matters, it’s not practical,” says Sophia Harris, former chairperson of the Business Staffing Plan Board.
Harris says she believes having people solely dedicated to reviewing immigration-related applications as their full-time jobs would make a “great deal of sense” and would also help get through what has been a chronic backlog of permit applications since the term-limit policy came into effect in January 2004.
Local immigration attorney Nicolas Joseph says that’s partially what is done now, but immigration-related boards have never truly been removed from the process.
“There is a very successful processing of a large number of administrative grants,” Joseph says. “On a work permit renewal, for example, quite routinely immigration is renewing those grants without going to a board at all.
“There is also sometimes the perception of unequal application of principles, particularly between boards.”
The ultimate solution, according to Bodden-Cowan, is an old one – first proposed by the original Cayman Islands Immigration Review Team in 2003.
“You will find very little disagreement by various governments on the fact that there should be a human resource authority,” Bodden-Cowan says. “That is seen as a merger of the current function of the immigration boards … with the labour department.”
Bodden-Cowan, whose law firm specialises in immigration matters, says the key to making such a set up work lies in the hiring.
“I have something to contribute to the subject of immigration, generally. But am I the best person to decide what the human resource need of the island is?” Bodden-Cowan says. “I have no HR training and no HR background. Yet a big part of the function … of [an immigration board] is to analyse an applicant’s qualifications and experience.”
Hiring that type of applicant to evaluate immigration forms would require some serious government expenditure, however.
“We do realise the cost of setting up such an authority and the impact it would have on the Immigration Department’s budget,” Bodden-Cowan says. “Remember, a lot of the Immigration Department’s budget comes from work permit fees.”
Harris, the managing partner at Solomon & Harris, says she believes boards still have something to offer to the immigration process.
“You should still have a lawyer chairing the boards,” she says. “It’s also very helpful to have representatives from the various industries … I don’t think it’s imperative, but it certainly helps.”
In 2004, following the establishment of Cayman’s first term-limit policy on foreign workers’ residence, there was a huge backlog of permanent residence applications by individuals who had been in the country for at least five years.
It has taken nearly a decade for the country to work through all of the outstanding applications.
“I am looking at appeals of permanent residency denials that go back to 2005 and are still waiting to be heard by the Immigration Appeals Tribunal,” Bodden-Cowan says.
Fast forward to 2013: Non-Caymanian workers residing here on Term Limit Exemption Permits – estimated at between 1,500 and 2,000 people – would be required to leave the Cayman Islands when the 28 October, 2013 deadline on their term limit exemption expires.
If and when the revised Immigration Law takes effect, those individuals and any other foreign workers who have stayed in the Cayman Islands for eight years or longer, will be allowed to apply for permanent residence without needing to receive a key employee designation. Premier McLaughlin had previously said that changes to the law would take effect before the 28 October deadline set on the Term Limit Exemption Permits.
“We have to,” the premier says. “I’m not iffing or butting about that.”
However, if the changes in the law are approved by then, Joseph says it’s likely that many will apply for permanent residence all at once.
“The 1,500, or however many there are now, many of them in October will be at nine years [continuous residence],” Joseph says, adding that large number of applicants could lead to future backlogs. “There is a likelihood that many of those persons will be in the islands for an extended period.”
Bodden-Cowan says it’s important that those looking at the government’s immigration reform proposals avoid the temptation to consider the proposed policy in isolation.
For instance, if government sets a timeline for individuals to apply for permanent residence between years seven and eight of their residence in Cayman, it would give “a minimum of two years” to deal with the application.
But Bodden-Cowan says removing the requirement of key employee status for non-Caymanian workers to extend their stay here and allowing everyone who stays long enough to apply for permanent residence is probably “the fairest thing to do”.
Harris says she’s reserving judgment on the government’s new immigration plan, mostly because there’s simply not enough detail available about it yet.
“We need to give them the benefit of that first,” she says. “Both political parties have admitted that [the seven-year] rollover was a monumental disaster.”