An analysis completed by a local law firm on recent changes to Cayman’s Immigration Law has concluded the legislation is not a true suspension of the country’s current seven-year term limit for foreign workers, often referred to as the ‘rollover policy’.
“The new law will not actually suspend rollover,” the three-page analysis by lawyers at Appleby states. “Rather, it will create two new types of work permit, the Term Limit Exemption Permit and the 10-year work permit.”
If it survives a constitutional challenge made by North Side MLA Ezzard Miller, the term limit exemption permit will only provide a limited reprieve from the seven-year limit on foreign workers’ residence.
Successful applicants will not be allowed to use a Term Limit Exemption Permit to legally count toward time spent in the Cayman Islands for any permanent residence application. Currently, foreign workers must reside in Cayman continuously for at least eight years prior to applying for permanent residence.
“They will still be rolled over upon expiry of any Term Limit Exemption Permit issued,” the Appleby analysis reads. “Employers that have employees who are crucial to operations, and who they would like to keep in the long term should continue to make applications for key employee designation.”
Key employee status allows foreign workers to stay in Cayman two years beyond the typical seven-year limit on residence, granting them enough time to apply for permanent residence – the right to remain in Cayman for the rest of their lives.
The law firm also identified a number of concerns with the legislation, including it would “create significant and complex issues for employers and authorities alike” by allowing people who are not key employees to continue working in Cayman past the usual seven-year time limit.
One of the issues concerns how immigration authorities will deal with the possibility of term limit exempted employees being able to work for any employer.
According to guidance notes provided to some local companies by Chief Immigration Officer Linda Evans last week: “The workers [who hold a Term Limit Exemption Permit] can work for any employer. If a different employer wishes to employ them for this two-year period, then they must submit a Term Limit Exception Permit grant form application, but the worker is not allowed to continue working until the application is approved”.
In other words, during the ‘waiting period’ between changing employers, it is not clear what will be the working immigration status of the employee who goes from a work permit with one company to a term limit exemption permit with another.
The legal analysis states no one is entitled to be granted a Term Limit Exemption Permit, but it indicates this point is “largely academic”.
“A denial [of a Term Limit Exemption Permit] can be appealed and the worker can continue to work until the appeal is decided,” the law firm states in its analysis. In any case, Term Limit Exemption Permits can only last for one year each and two years in total, so it’s possible that an appeal of a term limit exemption denial might take a year or longer to process anyway.
Appleby also raises the question in its analysis about whether those who are able to stay longer than eight years while appealing the denial of a Term Limit Exemption Permit would actually be allowed to apply for permanent residence by virtue of their ‘working as an operation of law’ immigration status.
“Conversely, those who are granted a Term Limit Exemption Permit on first application would not be given that benefit,” the analysis states.
Changes to the Immigration Law will allow, for the first time, the introduction of a 10-year work permit for employees in certain – as yet unidentified – jobs or industries.
Holders of the 10-year permits will be automatically allowed to apply for permanent residence, without having to apply for key employee status.
“There is no provision which makes them extendable or renewable, but with holders instead being expected to qualify for permanent residence before the permit’s expiry and thereafter … to move on to naturalisation and ultimately, the right be Caymanian,” the Appleby analysis reads.