If a person arrives on the island under a work permit with their spouse or partner who is a sponsored dependant, can the sponsored dependant seek employment in Bermuda? Can they continue to work for an employer incorporated outside of Bermuda? Can they work for themselves? This article explores these frequently asked questions regarding sponsored dependants and their right to work.
WORKING IN BERMUDA
The Minister of Labour confirmed in an update on 24 October 2022 that sponsored dependants, both spouses and partners, are now automatically provided with permission to seek employment. Confusion may have arisen around this point because, during a previous economic downturn, the position was changed so that spouses and partners were not given automatic permission to seek employment in order to help local Bermudians. The position has now reverted.
Whilst sponsored dependants have permission to seek employment, they cannot work in Bermuda without a work permit.
WORKING FOR AN EMPLOYER OUTSIDE OF BERMUDA
Whilst sponsored dependants are given the right to reside, permission to seek employment is not the same as the right to work in Bermuda. Under Bermuda legislation, broadly speaking, only those with Bermuda status and their spouses, those with a Permanent Resident Certificate and those with a work permit can “while in Bermuda … engage in any gainful occupation”.
The question that arises therefore is whether an individual, by working remotely from Bermuda, is working “while in Bermuda” for the purposes of the legislation. One good point of reference to answer this is the Global Work Permit or “digital nomad” scheme. Under this scheme individuals are given the right to reside in Bermuda for a limited period of time but do not have the right to work or seek employment. The scheme is premised on the idea that individuals will come to the island and contribute economically to Bermuda through income earned from remote working for employers elsewhere around the world.
This means that the concept of working remotely for an employer off island is not problematic for those already with the right to reside, but does it also mean that a sponsored dependant must obtain a Global Work Permit in those circumstances? The Department of Immigration recently advised Appleby that an individual with the right to reside, who wishes to work remotely for an employer established off island may do so without a Global Work Permit provided that the employer does not have a local branch, affiliate or subsidiary on the island. As such, a sponsored dependant, whose employer satisfies this criterion, can work remotely for an employer outside Bermuda without the need to consider any application for a Global Work Permit.
In addition, the sponsored dependant would not have any liabilities towards payroll tax and social insurance contributions because the sponsored dependant is not being paid in Bermuda or through a Bermuda entity. As for health insurance contributions, the sponsored dependant remains a non-employed spouse for all intents and purposes whilst on the island, and therefore their partner's or spouse's employer is required to maintain their health insurance.
There is a general prohibition on self-employment in Bermuda for those other than Bermudians, spouses of Bermudians and Permanent Resident Certificate holders.
If a sponsored dependant is self-employed, provided that their business is outside Bermuda, then self-employed remote work is permitted whilst they are resident in Bermuda. A sponsored dependant can operate an overseas business from Bermuda provided that the company does not “engage in or carry on any trade or business in Bermuda without a permit from the Minister”. The legislation specifies examples of when a company may be deemed to be carrying on a business in Bermuda, such as having letterhead with a Bermuda address or making it known by advertisement that it is engaging or carrying on any trade or business in or from within Bermuda on a continuing basis.
As well as operating an overseas business, there is also no bar on making or creating products in Bermuda, however, the sponsored dependant would not be permitted to sell their goods or offer their services in Bermuda. This could constitute the carrying on of “trade or business in Bermuda” which is prohibited without a permit from the Minister.
One exception to the general prohibition on self-employment in Bermuda is the fine artist. If a sponsored dependant is a fine artist then they can exhibit and sell their art but only through a gallery, which is defined by the Department of Immigration as “a permanent place of business whose purpose is to display and sell works of art”. Where the artist is already resident, as a sponsored dependant would be, the artist must obtain a Standard Work Permit in order to sell their art.
FIRST PUBLISHED IN THE BERMUDA CHAMBER OF COMMERCE NEWSLETTER (CHAMBER INSIDER), JANUARY 2023
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.