Getting to grips with the Immigration Law

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For any business in the Cayman Islands employing staff, whether they be Caymanian or expatriate, it is vital to have a thorough grasp of the relevant legal issues. Although the focus is often on the complicated rules relating to immigration and the need for work permits, these are only a starting point and once an employee’s right to work has been settled other key pieces of legislation regulate the terms under which they work, covering benefits such as health insurance and pensions, working conditions for employees, as well as the myriad of employment issues that crop up in the course of everyday business. Regardless of the size of the company, if managers are unfamiliar with the relevant provisions of the law, then legal issues relating to staff can dominate management time.

Walkers’ dedicated Employment Group is in place to advise both employers and employees on the full lifecycle of employment relations. On the hiring side there are employment contracts and employee handbooks to be drafted, while during the employee’s service there can be issues arising relating to disciplinary matters and other disputes and complaints by employees. The right legal advice is also critical when firms are parting company with staff, whether this is by mutual consent, termination or redundancy. Walkers has advised local and overseas clients on employment matters for many years and in 2009 formalised the firm’s specialist Employment Group in order to ensure that clients are fully aware of the range of expertise within the firm and to increase accessibility to services.

The Immigration Law has been the subject of much debate in recent times and is likely to remain a hot topic for both discussion and statutory reform for the foreseeable future. Its most recent incarnation is the 2009 Revision and at its heart is the desire to ensure “the protection of local interests and in particular of Caymanians”. This can come as a surprise to employers more used to dealing with employment issues in North American and European jurisdictions but is the keystone of the recruitment and retention process in the Cayman Islands.

It requires work permits to be obtained for any non-Caymanian employees (unless they fall within one of the small number of exemptions) without which they will not be permitted to work within the Cayman Islands. It is the responsibility of the employer to pay all work permit fees and employers employing more than 15 employees on work permits must have an approved Business Staffing Plan. The Immigration Law and associated Regulations mean that prospective employers have a duty to enquire as to the availability of Caymanians and other residents to fill a post before applying for a work permit.

The procedures for applying for work permits, temporary work permits and business staffing plans are fully laid out within the Immigration Law and its Regulations and are strictly enforced. Amongst other things, in planning and executing any recruitment exercise, prospective employers should be careful to ensure that:

  • Before an application is made for a work permit the position has been advertised for at least two consecutive weeks in a local newspaper to ascertain the availability of a Caymanian, the spouse of a Caymanian, the holder of a Residency and Employment Rights Certificate or a person “legally and ordinarily resident in the Islands” who can fill the position. Where such a candidate applies and is appropriately qualified, ordinarily a work permit will not be granted for an expatriate to fill the post.
  • Paperwork and information is retained to accompany any application for a work permit. Specifically, details and copies of the advertisements, details of the salary and benefits, a full description of the job, details of, and the reasons for, any required qualifications, details of any responses received and details of the reason for not employing any Caymanian, or legally resident person who applied for the post.
  • Additionally, in certain cases, the Immigration Board should also be provided with the names of all local applicants for the post, details of their qualifications and experience, reasons for the choice of the successful applicant and rejection of the others, a copy of the rejection letter and interview report for each Caymanian applicant, and a copy of the job description and resumes of the non-Caymanian applicants.
  • As would be expected, any prospective employee requiring a work permit must be appropriately qualified, in good health and of good character, failing which a permit is unlikely to be granted.
  • In the case of employers with 15 or more employees on work permits, a Business Staffing Plan is required. The requirements of this are beyond the scope of this article but, if approved by the Business Staffing Plan Board, authority may also be given to waive the advertising requirements before applying for work permits in respect of certain roles. Equally, however, if an employer required to have a Business Staffing Plan has not filed one with the Board, there is no power to grant work permits to that employer.
  • Once a permit has been granted an employer must not promote or re-designate an employee without the prior approval of the Work Permit Board – doing so could lead to the permit being revoked. Permits require periodic renewal and at present an expatriate employee will ordinarily be able to remain in the Cayman Islands for a maximum of seven years, at which stage they will be required to leave for at least one year.

As mentioned previously, the Immigration Law is only the starting point in the employment process and other legislation such as the Labour, Health Insurance and National Pensions Laws will become important as an employment relationship progresses. Walkers’ Employment Group exists to provide access to expert advice for clients in each of these areas.

The above is provided for information purposes and is intended only to highlight certain aspects of the Immigration Law and Regulations. It should not be relied upon as legal advice as, in all cases, detailed, fact-specific advice should be sought from your legal advisors.

For more information contact:
James Austin-Smith
Associate – Walkers
T: +1 345 814 4566
E: [email protected]
or
Nick Dunne
Associate – Walkers
T: +1 345 814 4548
E: [email protected]

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