Immigration & employment Q&A roundup

Immigration & employment during the COVID-19 crisis

We know Cayman’s COVID-19 prevention measures have come with many questions regarding immigration and employment. On Friday, 3 April, representatives from HSM Chambers joined us for a live Q&A, so you could have your questions answered directly by the experts. Here are some of the highlights:

Q: I’m off island but my work permit application was approved and is set to begin in April. Will I be able to come work?

HSM: A lot is dependent upon the airport. Currently the airport is closed until 20 April 2020 and while there are flights returning residents of the Cayman Islands, which you are technically one as you have a permission to be in the Cayman Islands, you might struggle to get on the plane.

Q: In the case that a visitor stamp expires in April, what should a person do?

HSM: The visitor should just send an email to immigration asking for the extension.

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Q: Is it legal for employers to force unpaid leave and unpaid holiday on employees? If so are they still required to pay 50% of medical insurance and to continue with pension contributions?

HSM: As a starting point, an employer cannot force you to take unpaid leave or your vacation leave. But under the provisions for temporary lay-off in s.42 of the Labour Law (2011 Revision), they can suspend you employment for 30 days without pay.

Employers are required to continue to maintain your health insurance during a temporary lay-off.

Q: I have to apply for PR before January 2021. Do you think the government will take into consideration loss of earnings during this period? I’m talking mainly in regards to amount you have invested and saved as they are both quite big areas on the points system.

HSM: Currently the Regulations have not changed and therefore, as matters stand, points will be awarded based upon the current regulations. It might well be the case that new regulations will lower certain criterion but until that happens, the status quo remains.

Q: With regards to work permit holders who have been made redundant and whose country borders are closed, can immigration allow those people to become visitors for next three months. If business returns to normal, could those workers go back to work?

HSM: Immigration certainly has the ability to allow persons to remain for three months post termination of employment. Factors which they may take into account will usually include the availability of resources of the affected person. The availability of flights would also become a factor. Coming back to work in the future would, as matters stand at present, likely require a new work permit.

Q: For work permit holders who have been made redundant and are allowed to stay in Cayman as visitors, are the employers who previously held their work permits obligated to provide health insurance while the employee remains on island but not working?

HSM: It is Cayman Islands Law that employers must continue to maintain a policy of health insurance for workers post termination of employment for a period of three months, at the employee’s expense. That obligation ceases if the employee ceases to be resident in the Cayman Islands or secures employment elsewhere.

Q: If you lose your job or have to leave the island during this time (it being your ninth year), can you return (if your absence was less than six months) and apply for PR while under new or resumed employment before the ninth year is up?

HSM: We believe that the answer is yes.

Q: I am currently employed and live on the island and my work permit expires December 2020. However, I am supposed to be starting with my new employer on May 1st. I am not sure what to do as I’ve been told immigration is closed and unable to process work permits.

HSM: We are aware that the WORC authorities are working diligently to introduce new mechanisms to facilitate the making of new work permit applications under the current conditions. These will include mechanisms to make appropriate payments. We expect these facilities to be available within weeks, and certainly before 1 May. The authorities are continuing to deal with urgent needs, and for example we received the grant of a work permit late yesterday.

Q: Is WORC enforcing immigration-related laws/regulations right now in terms of overstayers?

HSM: Whilst the Law has not been suspended, inadvertent breaches such as those arising due to persons remaining past the expiry of their immigration permissions, are not being enforced. Indeed, the authorities have expressly confirmed that anyone who might be in Cayman beyond their current permission is simply expected to report to WORC when they reopen, in order to be regularised.

Q: If an employer needs to terminate the employment of a permanent resident, do they need to notify immigration?

HSM: Regards to whether or not an employer (and Permanent Resident) have to notify the Department of WORC or the Caymanian Status and Permanent Residency Board if the PR holder is dismissed. Section 37 (17) of the Immigration (Transition) Law, 2018 places a requirement on both employer and PR holder to notify the Board or the Department of WORC.

Q: How realistic is it for workers who may be departing to have access to or be able to withdraw their pensions to take with them to sustain themselves?

HSM: Government haven’t made any provisions to allow a person to access their pension in this way. They have to apply to have the pension transferred to another pension account after they have left the Island but they will not receive cash.

Responses by HSM Chambers are a summary of the subject matter. It does not purport to be comprehensive or to provide legal advice. Please reach out to [email protected] if you would like assistance.

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