Work permit changes proposed

The Government presented several proposed changes to the Immigration Law concerning work permits in the Legislative Assembly Wednesday.

Mr. Tibbetts

Mr. Tibbetts

The Immigration (Amendment)(No.2) Bill, 2006, follows a review by the Immigration Review Team that began last year, Leader of Government Business Kurt Tibbetts told the House.

Mr. Tibbetts highlighted the key changes when he stood to table the discussion draft in the House.

One significant change concerned the length of time before work permit holders who reach their term limits must wait before reapplying for a work permit.

‘It is proposed that the length of time a person must leave the Islands following the expiry of their term limit before any further work permit can be approved in their favour be reduced from two years to one year,’ he said, adding that many in the private sector had wanted the time period lowered to six months.

However, Mr. Tibbetts said the purpose of the term limit was to break the stay of work permit holders to prevent large numbers of persons being granted long-term security of tenure in accordance with the provisions of the European Convention on Nationality.

‘Whilst it was accepted that an absence of two years was unnecessarily excessive, an absence of six months was considered insufficient to constitute a break of stay in the context of the Convention,’ Mr. Tibbetts said. ‘A break of one year was therefore deemed appropriate.’

The Amendment also addresses what is now known as exempted employees. The law proposes that term be changed to key employee.

‘It is hoped this change will remove any misunderstanding that may exist that an exempted employee is exempt from the entire term limit provisions of the law,’ Mr. Tibbetts said.

As far as the normal requirements for a person to be designated a key employee, the amended law keeps all of the provisions of the current law, although it does make one clarification.

The current law states that one of the requirements that could qualify a key employee is that he is recognised as having a particular expertise in his field of practice, trade or employment. The amended law adds to that sentence: ‘and the Board recognises that there is difficulty in attracting and retaining such persons within the Islands’.

All of the other six ways a person could qualify to be considered a key employee remain virtually the same as in the current law.

Another proposed provision of the amendment would allow employers to apply for a key employee status for an employee at any time prior to the expiration of the employee’s final work permit under the seven-year term limit. The provision would also allow employers with employees on fixed-term permits – the final nine-month, non-renewable permits issued to work permit holders that had already reached their seven-year term limits – the right to apply for key employee status with respect to those employees.

‘At present, employers and employees are disadvantaged by being limited to seeking key employee status at the time of applying for the grant or renewal of a work permit,’ Mr. Tibbetts said.

The law also proposes to create a presumption of work permit renewals through a period of nine consecutive years for workers granted key employee status.

‘This presumption may be rebutted, however, in certain circumstances, including where a qualified Caymanian is available and desirous of filling the position,’ Mr. Tibbetts said.

The bill also creates a provision that allows the Cabinet to determine by way of policy directions to the Work Permit Board and Business Staffing Plan Board that workers in certain professions or vocations are to be designated as key employees.

However, Cabinet Minister Alden McLaughlin informed the Caymanian Compass that the Cabinet has not designated any professions or vocations as key employees yet.

Another key change proposed includes eliminating the provision whereby a person on a temporary work permit could remain working until an application for a full work permit was considered.

‘The law will thus revert to the pre-Ivan situation,’ Mr. Tibbetts said.

It is also proposed to include a provision in the Law whereby neither the Work Permit Board or the Chief Immigration Officer can consider a work permit or temporary work permit application if a company required to have a Business Staffing Plan does not have one in place by 31 December 2006, or six months from the date upon which it attained the 15 or more persons on work permits that would require it to file a Business Staffing Plan.

Mr. Tibbetts said the Government believed the amendments addressed both the needs of the Islands as a whole and the concerns of the private sector.

‘We are keenly aware that many of the issues dealt with in this bill are emotive and that many in these Islands have strongly held views, particularly in relation to the issues of term limits on work permits,’ he said. ‘We believe, however, that the proposed revised legislation protects Caymanians, provides clarity and certainty for employers and work permit holders, and promotes inward investment better than before.’

Mr. Tibbetts urged the public to take advantage of the 30-day consultation period proposed.

‘[We] assure all that these representations will be taken into account when the bill is being prepared for presentation to the Honourable House.’

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