The landscape recently changed in respect of the vexed question of who might be entitled to Permanent Resident's Certificate (PRC) status in Bermuda.
Before the recent amendment, PRC status was possible only for spouses and children of PRC holders. Until 1st August 2010, a work permit holder who landed in Bermuda before 31st July 1989 and continued to reside in Bermuda for 20 years after that date was eligible to make application for PRC status.
Now, though, Government has introduced a PRC initiative designed to encourage international companies to set up or remain in Bermuda. It is currently the only way to achieve PRC status – and is open only to chief executive officers (CEOs) and senior executives.
The Incentive for Job Makers Act 2011 ("IJMA") came into force on 1st January 2012, amending the Bermuda Immigration and Protection Act 1956 ("Immigration Act") and the Economic Development Act 1968. The IJMA permits employers to apply for designation under the terms of the IJMA allowing application to be made for an exemption to work permit requirements – and, after 10 years, for the work permit holder to apply for a PRC.
There is a three-step process that must be followed and the criteria are strict.
First, according to IJMA, the CEO must apply for designation as a company whose senior executive employees can apply for exemption from Part V of the Immigration Act. The criteria for designation include that the employer (referred to as 'the company') must have at least 25 persons on staff who have Bermudian Status and who are employed at all levels in the company. The company must provide entry level positions to those persons with Bermudian Status and also must have programmes in place to develop and promote those persons with Bermudian Status. Finally, the company must not have employment practices that have regularly required the intervention of the Labour Relations department or Human Rights Commission.
Once the criteria have been established and the application made the Minister responsible for making the designation must consider five matters: the size of the company applying, the significance of the company to the economy of Bermuda, the existing or likely economic situation in Bermuda, the protection of local interests and, generally, the interests of the community as a whole.
The Minister also has the power to consider lowering the number of persons with Bermudian Status that a company must have on its staff to qualify. Therefore it may be possible for companies with fewer than 25 such persons on staff to apply for designation - the conditions for considering a lower number will likely follow those matters the Minister will have to take into account in any event.
Should a company be successful in applying for designation, a senior executive will be eligible to apply for exemption from Part V and that application shall be considered by the Minister. Thereafter, the Minister's recommendations regarding the application shall be considered by a Cabinet Committee for determination.
The Minister and the Cabinet Committee will need to be satisfied that an applicant meets further criteria, which includes confirmation of the designation of the company, that the applicant is indeed a senior executive, that the applicant is responsible for making decisions that are critical for the company continuing in Bermuda, that continuity must be dependent on the senior executive remaining in Bermuda, that the senior executive continued employment during the exemption/designation period, and that the company is continuing to meet the conditions for its designation.
The company can apply for up to five employees to be exempted at any one time. The Minister has to be satisfied, however, that there is no person in Bermuda with Bermudian Status having sufficient qualifications and experience to efficiently undertake the work concerned.
Once the senior executive has been granted the exemption he/she will be deemed eligible to apply for a PRC. In the meantime the senior executive will receive a certificate of exemption in place of a work permit, the cost of which will be $20,000. This certificate must be produced on re-entering Bermuda.
Once that process has been completed the third step is to apply for the PRC itself. To do so, the senior executive must have been ordinarily resident in Bermuda for 10 years.
For those who were ordinarily resident in Bermuda before 1st January 2012, the 10-year qualifying condition may be reduced correspondingly with any period of ordinary residence since 1st January 2005.
Therefore, the first such application for a PRC under the IJMA will be possible from 1st January 2015.
The application fee for the PRC will be $120,000 - such fee can be amended from time to time.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
