Caregivers get rollover break

Premier McKeeva Bush said he has received legal opinion from London that a plan to exempt certain domestic helpers from Cayman’s so-called rollover policy would stand up to legal tests.

Speaking during a debate on an amendment to the Immigration Law in which opposition and independent lawmakers questioned if the amended law could be challenged in court, Mr. Bush said the legal opinion he had received advised that “every state is free to determine for itself the conditions of residence of non-citizens. Our law applies and cannot be breached, and will not be breached.”

Members of the Legislative Assembly are expected to pass a proposal that would let foreign-born caregivers who nurse sick, elderly or handicapped residents stay in the Cayman Islands beyond the expiration of their final work permits.

The domestics could only do so if their employers obtained a certificate from either the Work Permit Board or chief immigration officer that allowed helpers to remain up to five more years. That extension only applies as long as they remain with the same employer.  Premier Bush said the proposal was needed to ensure the provision of the best possible care and comfort for the country’s most vulnerable residents.

“Not only have [these domestic helpers] become particularly attuned to the needs of that person, but the person being cared for has often formed a close bond with that helper,” Mr. Bush told the Legislative Assembly during Wednesday’s debate. “We cannot be so inflexible as to enforce this [rollover] policy to the detriment of those who are vulnerable in our community.”

Without the special certificate, caregivers who do not obtain key employee or permanent resident status are forced to leave

Cayman after seven years of continuous residence here. That seven-year term limit applies to all foreign workers in the Cayman Islands who do not work for government or who are not married to a Caymanian.   Mr. Bush pointed out that the certificate – known as the Certificate of Specialist Caregivers – would not allow the domestics who hold it to apply for permanent residence under Cayman’s Immigration Law.

“I believe it may be difficult for immigration and the government to deny someone who has been able to work here for 17 years any rights,” said North Side MLA Ezzard Miller during his portion of the debate, adding that he counted seven years for the typical term limit policy plus five years for the initial certificate for caregivers and another five years for a certificate renewal.

Opposition MLA Alden McLaughlin noted that before the implementation of Cayman’s initial term limit policy – in 1 January, 2004 – a number of foreign residents had lived in the Islands for 10, 20, 25 and in some rare cases close to 30 years without citizenship rights or any security of tenure. Mr. McLaughlin said he believed various international human rights conventions, as well as Cayman’s new Bill of Rights, might prevent that same situation from occurring with domestic helpers who hold the extended certificates.

He added that he did not believe the UK government would not support the amendment. He noted that the previous Immigration Review Team in 2003 stated that it was “socially undesirable” and “morally unacceptable” to allow individuals to stay in Cayman for longer than 10 years without some form of security of tenure.

At the same time, Mr. McLaughlin said members of the opposition party were sympathetic to the situation where “key people that we know are caught by coming to the end of their term limits.  You rarely see an employer happy about the prospect of losing a good employee,” he said.

Mr. McLaughlin said it was “morally repugnant” that the law dealt with “those who are at the absolute lowest end of the income scale in this country”, who had no pensions and who would return to their home countries with little savings.

Challenged by Premier Bush to give a solution to the issue, Mr. McLaughlin said caregivers could be given key employee status, an option which already exists and which would not involve a major change to the law.

Anthony Eden, PPM member for Bodden Town, said he, like other members of the House, had been approached by constituents on the issue, but said that while he supported the amendments, “it is important that we not ever forget the humanitarian side. There is the possibility… that we will have to look at some of this closer”. 

Concluding the debate, Mr. Bush fired back at Mr. McLaughlin’s comments, saying that key employee status is available for caregivers, but that under the PPM administration, the right of foreign nationals to appeal was removed if they are turned down for key employee status. He said that it was important that the people of Cayman and the government-appointed boards understand that the Caymanian population was not big enough to run the Cayman Islands. “I would ask my party to understand that and my boards to understand that we cannot and we will not fix this situation until we address the immigration problem in this country. It is the biggest single problem that we have. 

“People do not know for certain where they are going to be in four years time, no conglomerate is going to send anybody here to do anything and so we are suffering.”

Mr. Bush said he would elaborate further on the legal opinion he had received from London on the legislation, but insisted: “Our law is supreme and there are no international obligations demanding, telling us, what we must do in this regard.”

The proposed amendments to the immigration law passed a crucial second reading by majority vote late Wednesday afternoon and appeared to be on its way to final approval, possibly on Thursday.

The bill

Under the provisions of the Immigration (Amendment) (No.2) Bill, 2010, a caregiver would have to be employed as a nurse, nanny or in another care-giving capacity for at least three years prior to their employer making an application for a Certificate of Specialist Caregivers. The caregiver would also have to demonstrate that he or she is in good health.

A fee would be payable upon successful application for the caregivers certificate, according to the bill.

The certificate can be renewed at the option of the person’s employer, but that application for renewal would not be successful if the caregiver ceases to work for their current employer; or if the person being cared for dies, ceases to be sick or ceases to be handicapped. The Work Permit Board or Chief Immigration Officer would also have some discretion in awarding a certificate renewal. 

If an application for renewal of the Certificate of Specialist Caregivers is not successful and is not appealed, the caregiver would have to leave the Islands for at least a year – as is standard for all foreign workers whose work permits have expired.