Cayman’s Term Limit Review Committee has recommended that the term limit for foreign workers be maintained, but that it be extended from seven years to 10 years.
Cayman Islands Premier McKeeva Bush tabled the committee’s 105-page report in the Legislative Assembly on Friday and issued a statement about it.
“I am pleased to report that the Term Limit Review Committee has concluded their work and has prepared a report containing a number of recommendations on the way forward as it relates to term limits on work permits,” he said. “This is commonly called the rollover policy.”
In addition to recommending the lengthening of the term limit for foreign nationals, the committee recommended that the key employee designation be abolished and that all foreigners be given the right to apply for permanent residency between their seventh and eighth years of residence. Those who do not apply for permanent residence or who apply and have their application denied, would have to leave the Cayman Islands for at least one year before they could return.
The government has not implemented any of the changes recommended by the review committee as of yet.
“Although the Term Limit Review Report has not yet been accepted by Cabinet, Cabinet is desirous of further input and feedback from the public on the recommendations of the committee so that when it is discussed in Cabinet for acceptance, we would have had the benefit of greater input from the public,” Mr. Bush said. “Given the high-profile nature of this subject and to ensure openness and transparency within my government, I am tabling this report today in order to provide the public with an opportunity to review and provide comments.”
Break in stay
Although different countries have different thresholds for the length of time a foreign national must reside in the jurisdiction before he or she can apply to reside permanently, it is generally accepted that period of time cannot exceed 10 years.
The purpose of the forced break in stay after reaching the term limit in Cayman’s Immigration Law is to eliminate any reasonable expectation of permanent residence and eventual citizenship as proscribed by international human rights conventions and treaties. The Review Committee’s Legal Subcommittee could find no current statute, international convention or other legal instrument which is applicable in the Cayman Islands that confers any expectation or obligation on the government to grant permanent residence or citizenship to an individual on the basis of long-term residence in the territory.
However, the legal subcommittee stated that could change in the future if the United Kingdom signed and ratified the European Convention on Nationality or some other convention that afforded rights of citizenship to long-term foreign residents.
In addition, the legal subcommittee noted that certain circumstances could give rise to an argument of violation to the European Convention of Human Rights – which extends to the Cayman Islands through the UK.
The legal subcommittee also pointed out that the original Immigration Review Team that conducted the review prior to major amendments to the Immigration Law in 2003 that gave rise to the rollover policy, as well as the Vision 2008 report authors and the Select Committee of the Legislative Assembly on Immigration all considered the moral question of allowing non-citizens to remain in the Cayman Islands for long periods of time with no security of tenure. The all accepted the notion that after a certain number of years of residence, people should become eligible to apply for a grant to reside permanently in the territory.
Some thought the length of the required break in stay would be reduced from one year, but the legal subcommittee was concerned that any reduction to less than a year “could give rise to the criticism that the break is merely a formality and not a genuine break in the worker’s residence.”
“As such, it can be argued that a break of this nature does not interrupt a person’s qualifying period for the purpose of making an application for the right to reside permanently,” the committee’s report stated.
Under the current system – which was basically suspended last September while the committee conducted its review – most foreign nationals must leave the Cayman Islands after working here for seven years. However, employers can apply for certain foreign nationals to be classified as key employees, which, if successful, allows them the ability to receive nine years of work permits and to apply for permanent residency under the points system after eight years of residence in Cayman.
The Term Limit Review Committee has recommended that the key employee designation be abolished because “it creates an unsatisfactory and artificial vetting system for long-term residents which is effectively controlled by employers and is unfair to employees”.
“The process of key employee currently allows employers to dictate who remains in the Cayman Islands when in fact it should be based on public input and population growth plans,” the report’s executive summary stated.
The statistics cited in the report stated that only 1,007 key employee applications were received in the three year period between 2009 and 2011.
“Only a very small percentage of the work permit force has successfully passed through the key employee filter and although this may be seen as the Term Limit Policy operating as intended, it is very likely that well-qualified and suitable permanent residents do not have the opportunity to apply for permanent residence,” the report stated.
The committee therefore recommended that all foreign workers be allowed to apply for permanent residence between their seventh and eight year of residence. Currently, key employees cannot apply for permanent residence until after their eighth year of residence.
Term Limit Review Committee Chairman Sherri Bodden-Cowan said the main reason for requiring people to apply for permanent residence earlier than is allowed now was to ensure that their applications and any appeals of a denial could be dealt with before the end of a person’s 10th year of residence. She said that as it stands now, some people who have appealed denials on applications for permanent residence have remained in the Cayman Islands past their 10-year mark, which is what the rollover policy is designed to avoid.
“Our thinking was that we wanted to ensure there were two clear years to have applications dealt with and to have their appeals heard,” Mrs. Bodden-Cowan said.
Applications for permanent residence based on length of stay are considered on a point system in which applicants must get at least 100 points for approval.
The points system is dictated by regulations attached to the Immigration Law and as such can be amended by Cabinet instead of the Legislative Assembly.
The review committee recommended that the points system be revised to “ensure that it meets current government economic and social objectives”.
Although no specific revisions to the permanent residence points system were included in the Term Limit Review Committee’s report, it recommended the revisions ensure that those granted permanent residence have particular qualifications or expertise that the Islands need to attract and retain; that they are directly involved in the training, mentoring and development of Caymanians; that they have skills and expertise that is not available in adequate measure in Cayman and will not be in the foreseeable future; and that they are of long-term social and economic benefit to the Islands.
The review committee also recommended all foreign government employees be subject to the same rights and restrictions as non-government foreign employees “to ensure a level playing field”.
Currently, civil servants are hired under government contracts, as opposed to work permits, and are not subject to term limits.
Other recommendations from the review committee included:
Implementing the already developed Employer Accreditation System;
Ensuring the Department of Immigration receives sufficient funding to attract well-qualified personnel;
Ensuring that any foreign nationals arriving to work in the Cayman Islands are fully aware of the fixed-term policy and the criteria set for establishing long-term residency;
Settling on a term limit policy for the long run to provide certainty and predictability for employer and employee and avoids the uncertainty of constantly moving goalposts.