‘Abuse of process’ claimed in key employee case

Three challenges request review of board decisions

Three separate applications requesting judicial reviews following decisions of the Cayman Islands Work Permit Board to deny key employee status were filed in November, according to court records obtained by the Caymanian Compass.

The particulars of each claim – which involved foreign nationals who work here as a carpenter, insurance agent and a real estate agent – all contain different sets of facts. In two of the cases the applications claim the decisions by the board were either “procedurally irregular or irrational” simply because no “adequate reason” was provided for the board decision to deny key employee status applications.

In the third case, involving an insurance technician who works for Balderamos Insurance Services Ltd., the application claims that the board’s decision to deny key employee status was unlawful.

“The delay in making the decision (and then the further delay in communicating the decision to the applicant) was so serious as to amount to an abuse of process and a denial of natural justice,” the claim read.

Key employee status is an immigration designation that allows a foreign worker to remain in the Cayman Islands an additional two years beyond the normal seven-year term limit set on residency for foreign-born employees. The additional two years allows those workers to remain here long enough to apply for permanent resident status, the right to remain in Cayman for the rest of their lives.

The application for judicial review involving insurance technician Annmarie Charran and Balderamos Insurance Services Ltd. was filed on their behalf by the Campbells law firm.

The judicial review applications on behalf of real estate agent Kerri Lynne Kanuga and Simba Limited (T/A Re/Max Cayman Islands), and on behalf of TCB Construction and carpenter/builder Tuffaray Scarlett were both filed by the Bodden and Bodden law firm.

The case involving Ms Charran is set out in detail in the notice of originating motion filed with the court on 23 November.

According to the memorandum of grounds, filed in support of the application for leave to apply for judicial review, the insurance company applied on 10 March, 2009, for Ms Charran to be granted key employee status. Additional measures were taken to allow the employee to remain in Cayman while that application was dealt with. On 1 April, 2010, the Balderamos Insurance Services company paid a fee to the Immigration Department so Ms Charran could work under operation of law. That period was extended until 30 September, 2010, according to court records.

On 3 September, 2010 – having heard nothing from the board regarding the key employee status decision – the insurance firm wrote to the Business Staffing Plan Board that it appeared the initial application had “gone astray” and to give favourable consideration to the company’s application for both the key employee status of Ms Charran and the company’s business staffing plan.

On 10 September, 2010, and 13 September, 2010, similar letters were sent with cheques for $250 to cover the application fees. On 20 September, Balderamos Insurance the company was informed that the key employee application for Ms Charran had not been approved at a recent meeting.

“In fact, this was untrue,” the court application stated. “The meeting had been held on or about 6 or 7 June, 2010.”

According to the application for judicial review, the Immigration Department refused to reconsider the board’s decision, did not allow Ms Charran to keep working and denied the company the ability to reapply for key employee status.

“The decision was not made until June 2010 (…nearly 15 months after submission of the application) and not communicated to the applicant [referring to Balderamos Insurance Services] until 20 September – a delay of a further three and a half months,” the application for judicial review stated.

“(Balderamos Insurance Services Ltd) is now left in circumstances where [Ms Charran], who is the mainstay of the business, and on whom the director, a Caymanian who wishes to retire…depends for the continued prosperity of the business, must, unless a remedy is granted, leave the jurisdiction and her employment, in circumstances in which the business has never had a suitable (or any) Caymanian applicant for [Ms Charran’s] position when it has been advertised.

“[Balderamos Insurance Services Ltd.] is a small business, employing five Caymanians…and one permanent resident with the right to work, all of whom will suffer hardship if [Ms Charran] is not granted key employee status and forced to leave because of the likely downturn in business, which will result from her departure.”

Fewer details were provided in court records regarding applications for judicial review filed on behalf of Kerri Kanuga and Tuffaray Scarlett. In both cases, the applicants for key employee status were told that “…the [Work Permit Board] was not satisfied that he/she fulfils any of the requirements set out in the relevant section”.

For both judicial review applications, attorneys from Bodden and Bodden stated, “The applicant seeks leave to apply for judicial review on the basis that the decisions made by the Work Permit Board on or before 28 October, 2010, to refuse the designation of employee as a key employee was either; (i) procedurally irregular or (ii) irrational, because the Work Permit Board failed to provide any adequate reasons for its decision”.

In all three cases, lawyers have requested an order from the court quashing the decisions of the Work Permit Board, as well as an order requiring the board to reconsider their decisions to deny the key employee statuses of the applicants.

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3 COMMENTS

  1. im a person that is experiencing the same situation, i have in a work permit that was in from deccember 2009 an it was differ until june 2010 for no reasson, the only answer i keep getting was it for futher considerations, my employer cancelled that permit then a second work permit was in in september 2010 and up to this day i get no answer, they just say its differd again for futher considerations. so my question is it takes the inmigration board moore than one year toi consider a work permit? everityme u call u get the same answer from the inmigration staff, that its differd for no reasson, and when u ask to speak with someone of the board the answer is that they not in the office.
    but may be is just a friend thing cause if u dont have a friend that work in that departmen its hard or it takes longer to get tru..
    wishing u all a merry christmas
    and hope that the inmigration deparmet make some changes for the 2011

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  2. Barbie

    No disrespect intended, we all make grammatical, punctuation and spelling errors when using and writing basic English but…

    If youre commenting on this forum about having a key employee application or any other type of work permit application before the WP board and youre not more competent in the English language than you appear here, maybe Dubai, Tiger and others do have a point about unqualified people and the work permit process…

    Im sorry but with such basic English weaknesses, I would question your suitability for a work permit as well…

    Especially as a key employee.

    With people talking a lot about lazy, unqualified Caymanians blah, blah , blah…its only fair to look at the other side of the coin…

    Whats good for the goose is also good for the gander.

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  3. Barbie – maybe its your lack of proper English usage.

    I wish people would get over blame shifting. It has nothing to do with who you know but whether or not you are qualified for your position, years of experience, what you are contributing to Cayman (do you own a home, etc.)

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