Letter: Permanent residents and work permit fees

Charging work permit fees for permanent residents violates European human rights standards. This is likely to be the decision of the Privy Council and the European Court of Human Rights should there be a challenge. Such a holding could raise issues of restoration of PR and refund. Moreover, revoking PR for non-payment of work permit fees also negatively impacts Caymanians connected to those who depart.

You can apply for PR upon residing in Cayman for eight years. This ensures that, by the time you complete the ninth year, the result of your application is known. If the application is unsuccessful, you would have enough time to find your tracks long before the 10th year. The 10th year is crucial because, as per the advice reputedly given by the Attorney General, European principles require that at the end of the 10th year you be given permanence, which, at a minimum, means PR.

Incidentally, artificially abridging one’s period of residency for the sole purpose of ensuring that they do not reach the 10th year can be legally questionable in relation to some countries. This is because even if you continue to be law abiding and still have a job, you have to leave, just so that you do not achieve permanence. It undermines the principle.

That said, I think that artificially ending a person’s stay can withstand legal scrutiny in the special circumstances of Cayman. Brexit came about because the majority of UK voters were afraid of being swamped by what they saw as excessive immigration, especially from the ‘wrong’ countries. And yet the proportion of foreigners in the UK is nowhere near the proportion in Cayman. A progressive court is likely to accept the argument that, since generational Caymanians have become a minority in their own country and continue to be pushed to the periphery of the society, government must be allowed to take extraordinary measures.

I doubt though that this concession can extend to work permit fees. As an applicant for PR, you first have to obtain the requisite number of points and pay steep application fees. In addition to the application fees, you have to pay the work permit fee for the first year of your prospective residency status, even before you know the result. This has given rise to a perception that it is just another way of complicating your life. Some people have been unable to raise all the money before expiry of the window during which an application must be made.

Courts have always said that, in exercising power, a public authority must not impose unduly onerous conditions. For example, the courts themselves are not allowed to demand unreasonable bail conditions. Doing so is tantamount to denial of the right to bail. By the same token, to ask someone to pay work permit fees even when they have no job, which can become even harder to find once they have PR, and tying this to the continued right to keep that status, is wrong in principle. It raises the issue as to the extent to which their position is permanent at all as compared to work permit holders, quite apart from being an abuse of language. In effect, government is saying: “We will reluctantly let you in through the front door while Uncle Europe is looking from across the pond. But once you are inside, we will find an excuse to unceremoniously ease you out through the back door.”

Underlying all these tough conditions are the issues of Caymanians feeling marginalised, the mass grants of some years ago and a work permit system that keeps bringing in foreigners for jobs Caymanians can do. To be fair, some Caymanians in government and on the relevant boards are complicit in this. But these problems are not solved by revoking PR for persons who have no job but have been here for a long time. There are more effective and just ways of safeguarding the interests of Caymanians.

Legislation requiring that certain jobs be only for Caymanians and PR holders, in that order, is one step. Suitably amending the Public Service Management Law in a number of areas is another. For example, section 26(1)(f) of the PSM Law provides that where, after applying the criteria for appointment, two or more persons rank broadly at the same level, the Caymanian must be given preference. But this is not enough. Rather it must say that if there is a Caymanian (or, alternatively, a PR holder) who meets the criteria, they must be appointed unless there is good reason to the contrary other than the superior qualifications of the foreigner. All this would be legal since section 16(4)(b) of the Constitution allows discrimination in favour of Caymanians in employment matters.

There are also non-legislative problems such as the psyche of some Caymanian decision-makers. But for that there is no easy cure. It should suffice to say that listening to a famous line from the Bob Marley classic ‘Redemption Song’ may be a good start.

Bilika Simamba

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