Adviser says nine-month rollover is minimum

Nine months is the briefest
rollover period for foreign workers applied in any jurisdiction in the European
Union, according to local immigration advisers.

Immigration Review Team Chairperson
Sherri Bodden-Cowan told a group of small business owners Tuesday evening that
she would like to recommend reducing Cayman’s one-year break in stay
requirement for all foreign workers who have been in the country for seven
consecutive years. But Mrs. Bodden-Cowan – who also chairs the country’s Work
Permit Board – said the potential legal problems that could arise from doing so
are daunting.

“I would love to reduce [the
rollover period] and to recommend to the government to reduce it to the shortest
period possible so that businesses are not inconvenienced,” Mrs. Bodden-Cowan
said. “But if we reduce it to a period which is not going to withstand legal
scrutiny in the future then we might as well get rid of it altogether.”

“We have examples of [the rollover
period]…being nine months in some [EU] countries,” she added. “I haven’t heard
an example of it being less than nine months.”

Premier McKeeva Bush has previously
stated his desire to reduce the break in residency to as little as one month.
That means an individual who stayed in Cayman for seven years on a work permit
would have to leave the country for just 30 days prior to returning; at which
point they could take up their job again for another seven years assuming no
qualified Caymanian applied for the post. Right now, that legally-required
break in stay is one year.

Mr. Bush has also indicated that
legal advice obtained by Cayman’s government indicates reducing the break in
stay period would be acceptable.

Mrs. Bodden-Cowan concurs, but notes
that the advice received might not address questions government needs answered.
In fact, it’s likely only a court would serve to do that, she said.

“We’ve had legal advice [that] you
can put any [break in stay] period in your law that you want to put in your
law, but that’s not the question is it?” she said. “The question is, will it
hold up in 15 years time?”

The issue is somewhat complex and
rooted in the reasons that the term limit policy on foreign resident workers
was first developed in Cayman.

Previously, Mrs. Bodden-Cowan said
foreign workers were allowed – in some cases – to remain in the Islands on work
permits for as long as 20, 30, even approaching 40 years. Legally, those
employees maintained the status of “guest workers” without obtaining any voting
rights or privileges of citizenship.

A successful court challenge to the
government’s previous moratorium on grants of Caymanian status, which is the
penultimate step toward citizenship, meant that some 6,000 long-term Island
residents were eligible to apply for that status following the court’s 2001
ruling. Mrs. Bodden-Cowan said the government should be wary of the same thing
happening if the shortened break in stay period is contested.

That 2001 ruling ultimately led to
the controversial grants of Caymanian status by Cabinet in 2003 and the
subsequent development of the seven year term-limit policy for foreign workers,
often referred to locally as the rollover policy.

If the break in stay, or rollover
period was reduced to a legally moot period, Mrs. Bodden-Cowan fears a similar
court challenge could take place from someone who had lived in Cayman for 14
consecutive years with only brief break in stay.

“No attorney, or judge for that
matter, can say with any certainty what would happen if the rollover period was
reduced to, say, a month; where this person kept their apartment here, their
bank accounts here, their dog here, their office here,” she said. “We find it
unlikely that a judge is going to say that this person does not have any legal
status in the Cayman Islands…and therefore they are entitled to nothing.

“But we won’t know that until we
have a trial in the next 14 years. Then we leave the problem for our children
and grandchildren.”

Mrs. Bodden-Cowan said she doesn’t
believe the Cayman Islands will ever be allowed to return to the days when
individuals on work permits were allowed to remain here 20 to 30 years without
obtaining any citizenship rights, given international human rights rules and
Cayman’s own recently-adopted bill of rights in the country’s 2009
Constitution.

To date, Premier Bush’s government
has not issued any specific proposals for amendments to the country’s
Immigration Law that would affect the one-year break in stay period for foreign
workers.