With recent developments concerning the global spread of COVID-19 and the impact it has had on the economy, the Cayman Islands Government (CIG) has implemented a series of amendments to what is commonly referred to as the Islands' Immigration Regime. Amongst the changes first formally communicated were directives issued by Workforce Opportunity and Residency Cayman (effectively a policy statement) on 15 April 2020. These have since been followed by the Immigration (Transition) (Work Permit Exemptions) Regulations, 2020, the Customs and Border Control (Amendment) Bill, 2020, and the Immigration (Transition) (Amendment) Bill, 2020. The Guidance and Regulations are now in effect, whilst the Bills are yet to receive formal passage and become Law. All are described more fully below.
Dated 15 April 2020, the Workforce Opportunities & Residency Cayman (WORC) Frequently Asked Questions can be found here. In essence they have confirmed a new and streamlined methodology by which various applications can continue to be made notwithstanding the physical closure of WORC's offices. The guidelines also provide for various other requirements being simplified or even waived. They brought into operation Electronic Funds Transfer ("EFT") payment mechanisms, and confirmed that in so far as Work Permit applications are concerned, only 3 month Temporary Work Permit applications would be considered at this time.
Whilst not having the force of Law, they provide a pragmatic and helpful interim solution for those needing various permissions and seeking the assistance of the authorities. In limited cases they may not be appropriate to everyone's circumstances, but those exceptions are (and we expect will continue to be) rare. Several of the "loose ends" created by the Guidance are tidied up by the Immigration (Transition) (Amendment) Bill, 2020 as described below. For now we continue to make all manner of immigration applications and the authorities are continuing to deal with urgent matters.
Amongst key aspects of the guidance are:
- A variation of the visitor extension process.
- A waiver of any requirement to provide a medical for work permit applications filed between 20 March 2020 and 20 May 2020.
- An ability to continue working (temporarily) post expiry of a work permit in limited circumstances, including (for so long as "shelter in place" restrictions continue), past any expiring term limit.
- A waiver of the requirement to provide wet-ink signatures, police clearance certificates; photographs and accommodation forms.
- A waiver of any requirement to advertise, however with an expectation that all vacancies be duly published via the JobsCayman portal with an expectation that all vacancies be registered and good faith efforts to employ a Caymanian on a priority basis still be demonstrated.
Particularly notable is the policy direction that no new Work Permit Grant applications can be made, and that no cover letters are required. There will nevertheless be circumstances where both may appropriate, and we are making such applications (and indeed renewals) where appropriate. We are conscious of the fact that at present the Law requires renewals or even applications for the Grant of a Work Permit, RERC's as the Spouse of a Caymanian, Permanent Residence and Permission to Continue Working to be made prior to the expiry of any existing permission. We are accordingly continuing to seek to comply as fully as possible with all the requirements of the existing Law, where practicable. Applications for Permanent Residence and the Right to be Caymanian are being filed by us weekly, and annual declaration and variation applications continue to be accepted. Not everyone has however been able to maintain every aspect of their immigration permissions and there will plainly be substantial "cleaning up" to be done in the future, and likely within a short (30 day) timeframe. New forms are expected but (it appears) are yet to be published.
These FAQ's appear largely to be crafted so as to endure only for so long as the "shelter in place" suppression measures continue, although they will be replaced by new and updated approaches to various applications, including in consequence of the Immigration (Transition) (Amendment) Bill, 2020, described below.
The Immigration (Transition) (Work Permit Exemptions) Regulations, 2020
These were passed by Cabinet on 21 April 2020 and are already in effect. They are of immediate relevance only to those operating in the healthcare field, and operate so as to permit non Caymanians to be recruited by the Health Services Authority or any private hospital without the constraints which may otherwise apply under the Work Permit/Immigration Regime. A primary effect will be to exempt persons, subject to specific conditions, from having to have a work permit. They appear intended to allow the rapid deployment of medical personnel (including from overseas subject to quarantine controls) wherever required should a need arise. The regulations are intended to be limited in duration, although their expiry will be at a date to be specified by Cabinet and notified by Gazette, official Government website or other official means of communication.
The Customs and Border Control (Amendment) Bill, 2020
This was published on 22 April 2020 and is expected to pass through the legislative process in the coming weeks. It will amend the Customs and Border Control Law, 2018 to provide for the giving of directions by Cabinet to the Director of Customs and Border Control. This is anticipated to provide the Government with greater flexibility in its management of the entry and departure of individuals (and materials) in the weeks and months ahead.
The Immigration (Transition) (Amendment) Bill, 2020
Like the above this was published on 22 April 2020, and is expected to pass into legislation in the coming weeks. It is substantial and will formalize aspects of the Frequently Asked Questions Guidance published by WORC on 15 April 2020. It will bring into force a number of new requirements and formalize aspects of the Guidance issued by WORC. In particular:
- With effect from the commencement of this Law, the longstanding requirement to advertise in two issues of a newspaper (unless exempted by Cabinet, the Board, or the Director of WORC), will no longer apply. It is formally replaced (unless exempted) with a long-anticipated requirement for any vacancy to which a full work permit relates to be registered "in an electronic portal established and managed by WORC for fourteen days before the submission of an application..." Advertising in a newspaper remains an option, but only in addition to registering in the "electronic portal" understood to be the jobs.ky website. The registration is confirmed to be for the purpose of ascertaining the availability of a Caymanian, Permanent Resident, or other person already lawfully resident for any position (in that order of priority). The former preference for Spouses of Caymanians over other Permanent Residents will no longer exist, with all Permanent Residents with Residency and Employment Rights Certificates issued under section 37(5) or 37 (16), and those issued under s. 38 being afforded equal protection.
- Section 58 of the existing Law will also be amended by the deletion of the word "willfully" in the context of describing the offence of withholding information as to whether a local resident has applied for any position; or providing inaccurate or incomplete information in an attempt to deceive the authorities in an application for a work permit. It follows that the offence now becomes one of strict liability, making it easier to prosecute and in effect placing the burden of proof on the applicant for the work permit. It will no longer be a defence if a local applicant for a position that is subsequently the subject of a work permit application was overlooked by mistake. Employers and HR professionals (in particular) should take particular note. The penalties for the offence remain unchanged (a fine of CI$20,000 and a year in prison for a first offence, and CI$30,000 and imprisonment for two years for a second or subsequent offence).
- A series of transitional measures are introduced. If the Bill passes in its current form, it confirms that where a work permit expired on or after 27 March 2020, and the employer or self-employed worker was unable to make an application for the renewal of the work permit due to the closure of WORC, the worker is deemed not to have committed any offence under the Immigration (Transition) Law by continuing to work under the same terms and conditions PROVIDED an application for a renewal of the work permit is (as matters stand) made within 30 days of the commencement of the Bill. Interestingly, no corresponding protection is provided to employers in the present draft. That does not appear to us to be deliberate, and may change before passage. The Bill does however confirm that if no application is made within the 30 day window to be made available, then the worker must cease working. If employment nevertheless continues, both the worker and the employer will have committed an offence and be liable on conviction to a fine of CI$5,000 and/or imprisonment for one year. If an application is made within the 30 day window then the right to work (and to employ) by operation of Law is preserved pending determination, or any appeal.
- Where a worker's term limit has expired on or after 27 March 2020 and an employer is thereby unable to make an application for the renewal of a work permit, and the worker has nevertheless continued in employment, neither the worker nor their employer will be deemed to have acted in contravention of the Immigration (Transition) Law where the worker continues to work on the same terms and conditions as applied to the final work permit, during the period between 27 March and ninety days after the commencement after what will be the Immigration (Transition) (Amendment) Law, 2020.
- Finally, the proposed legislation confirms that where a worker has continued in employment after the expiry of their work permit on or after 27 March 2020, they are deemed not to be in contravention of the Law for the period until their employment ends. It is assumed that the legislative intent of this provision is not that such persons be permanently excused from holding a work permit and that it will only apply for up to 30 days following commencement of the amending legislation.
Any applications filed before the future commencement date of this amending legislation will be dealt with under the Laws in place on the date of their application (for example relying on newspaper advertisements to determine the availability of local persons for any positions). Both employers and employees should pay close attention to these developments.
It remains to be confirmed how the interplay between workforce opportunity, border control, employment and even pensions will ultimately resolve (including how WORC will treat periods of extended layoff).
For the immediate we recommend that all employers with work permit needs in the coming months register themselves and any vacancies (which would include any position for which a work permit is or will be required) on the jobs.ky portal. Doing so now will enable employers the benefit of a full 30 day window within which to regularize any renewal applications which may be made "out of time."
We are advising clients and assisting in the making of all manner of applications, including registration of employers and positions on the jobs.ky portal.
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.