Review & Analysis of the Cayman Islands Immigration (Amendment) Law, 2008 and the Immigration (Amendment) Regulations, 2008
The Legislative Assembly recently passed a number of important changes to the Immigration Law entitled The Immigration (Amendment) Law, 2008 and The Immigration (Amendment) Regulations, 2008.
Our Immigration experts have prepared a detailed review and summary of theses changes to enable you, as an employer, employee or prospective employee in the Cayman Islands, to understand the new law and regulations.
Many of the changes made in late 2008 involved the tidying up of legal wording in the 2007 Law, removing unnecessary text or rephrasing certain laws and regulations to make the clearer. We have outlined below the main changes that give effect to new law, rights or charges or repeals previous laws or rights.
Click here to download the full list of new Fees & Regulations
Click here to download the full Immigration Law Amendments
One of the most significant changes in the Immigration Law and Regulations is in the increase in the work permit fees for many higher paid professional employees. The changes have at long last provided employers with a more comprehensive and up-to-date list of job titles, broken down by industry sector with the according work permit fees. Some are now less than the fees that employers may have used in the past but many have increased.
Click her for an analysis of the new fees by sector
Fast tracked temporary work permit decisions:
The Chief Immigration Officer announced to local media in late November that his department will facilitate the processing of temporary work permits within 48 hours, if so required by employers, upon payment of an increased express service fee (in place of the normal $35 fee for temporary permits).
The fees have been outlined in the new Regulations as follows:
$300 for permits ordinarily valued between $5,000 and $17,500 (i.e. annualised)
$250 for permits ordinarily valued between $2,750 and $4,999
$200 for permits ordinarily valued between $1,100 and $2,749
$100 for permits ordinarily valued between $100 and $1,099
In the event that Immigration are not in a position to give a determination within 48 hours of the fast-tracked application, the difference between the fee paid and the normal $35 fee will be refunded to the applicant.
Administrative review and approval of certain work permits:
One of the most radical and welcome changes in the recent changes to the Law comes in Section 42 which is considerably beefed up to allow the Chief Immigration Officer the right to delegate all or any of the powers conferred upon him to any members of his staff. This essentially provides the legal grounds for the highly anticipated Administrative Review of certain work permits which came into effect in December 2008 and which aims to cut work permit decisions down to 2-3 weeks.
Subsection 6 of Section 42 details the type of applications that will not be subject to administrative review, thus being left to the respective Boards for consideration. These include applications where a Caymanian has applied and been rejected, there is a complaint on file against the prospective employee, the Employment Relations database identifies a potentially suitable Caymanian for the post, key employee applications, promotions and re-designations, amendments to Business Staffing Plans and advertising waiver requests.
Work Permit renewals can now be heard up to 12 months in advance of expiry:
Regulation 12 has been amended to allow employers to apply for a work permit renewal on behalf of an employee up to 12 months in advance of the expiry date of the employee's work permit. Previously, applications could not be heard more than 3 months prior to the expiry of their current work permit. This new change would theoretically allow a large employer to submit renewal applications on behalf of all of its work permit holders at the same time, once a year, thus saving a great deal of effort running different advertisements throughout the year and dealing with applications only as they fall due.
Key Employees working by Operation of Law (WOL):
Changes to Section 52 of the Law now clearly specify that a Key Employee who is working by Operation of Law whilst awaiting the outcome of a Permanent Residency Application is required to continue to work in the same occupation as stated in their final work permit. Whilst always assumed, it was previously a grey area of the law and this change effectively clears up any confusion on the matter. Another perhaps more interesting change to this Section now makes it an offence if you do not submit your passport to Immigration for endorsement, accompanied by the required WOL fee.
Employer's right to reclaim portion of fees for WOL employees who change jobs:
An addition to Regulation 19 entitled subregulation 2 now entitles an employer to a 50% refund of fees paid for an employee who was working by operation of law who ceases to work for that employer within six months of the commencement of the period in respect of which the fee was paid.
Requirement to Advertise Salary and Benefits:
Changes to Regulation 4, subregulation 4(a) now requires employers to specify information relating to the salary range and all other benefits attaching to the post when advertising said posts in the local media, if those advertisements are to be submitted in support of a work permit application. This requirement has been in effect for some time but there was previously some confusion amongst employers as it was not stipulated in the Regulations until now.
Business Staffing Plan Changes:
Under changes in the third schedule of the Regulations, employers who hold or submit a Business Staffing Plan are now required to list all staff who are employed through a temping agency. In addition, all part-time employees must also be listed. This would seem to be a strong move by Immigration to "out" employers who seek to circumvent the normal work permit system by employing large numbers of temporary staff who are employed through an agency. The Department has tried many ways to tackle this problem over the last number of years. This new change may be the most transparent method yet.
The same Amendment also tidies up the requirement to list positions that have been earmarked for propective key employees (formerly know as exempt positions).
A change in Section 45 of the Law now requires companies who submit a late business staffing plan application to pay double the normal fee as way of a penalty. This penalty will apply to any company who currently employs 15 or more work permit holders and does not yet have a business staffing plan. Upon reaching 15 work permit holders, an employer who previously did not require a business staffing plan still has 6 months to submit a business staffing plan before having to pay the new double fee penalty.
A number of changes have been made to Section 31, largely tidying up the wording of the law but an important addition has been made entitled subsection 7 (c) which entitles the spouse of a Caymanian to continue to work during the period of their last work permit and the final determination of their Residency and Employment Rights Certificate application, once the application is made before the person's work permit expires. Previous to this change, the spouse of a Caymanian had to stop working if their work permit expired before their Residency application had been heard. Many such spouses of Caymanians were unaware that they no longer had the right to continue having their work permits renewed when the law changed in 2007 and therefore submitted Residency and Employment Rights Certification applications at the last minute, thus not allowing the application enough time to be heard before their work permit expired.
Permanent Residence Applicants & Holders:
The Schedule entitled "Deducatbale Components" in the new Regulations expands on the "other mitigating factors" that may lead to a deduction in points from a permanent residency application. The Regulations now state that points may be deducted if it can be proven that the applicant has ill-treated Caymanians in the workplace. The new Regulations further provide the applicant with the right to a full explanation in writing of any such determinationa.
A change in Section 38 of the Law now allows the Board to revoke permanent residency to anyone who fails to maintain the level of financial investment stated in their original PR application. Effectively this removes the possibility of somebody trying to unfairly improve their chance of obtaining PR by acquiring property and lodging substantial sums of money in their Cayman Islands bank account immediately prior to submitting a PR application only to subsequently downsize or dispose of these investments after achieving their goal. It also allows the Board to revoke the PR of somebody who genuinely held financial investments but subsequently loses them after obtaining PR.
Revocation of the right to be Caymanian:
Section 28 of the law has been repealed and updated to allow for the right of Caymanian Status to be revoked in such circumstances where the holder of such right is sentenced to an immediate term of imprisonment of 12 months or more, other than for non-payment of a fine. This expands greatly a previously existing clause that only allowed for such a right to be revoked in very narrow circumstances.
Under changes to Section 15, subsection 1 of the Law, the right of appeal to the Appeals Tribunal regarding decisions made by the Chief Immigration Officer is given formal recognition by law. Previously, the Law only provided for the right to appeal the decisions of the Boards.
The title of "Administrator" has been replaced with that of "Director of Boards and Work Permits". The former Administrator's responsibilities have been expanded under Section 7, subsection 2 to include the development and implementation of strategies and systems to promote efficiency in the processing of applications by the Boards and by the Work Permit Administration section. This gives new a quality and efficiency thrust to the Director's role.
Amendments to Sections 14, 42 and 48 suggest that, going forward, applicants will be fingerprinted and have their fingerprint recorded electronically by Immigration. Civil liberty types may object to this, but in the modern age, it is becoming increasingly standard to be required to provide such information to government authorities and one can only presume that it will enable to RCIPS to perform an even better job policing the islands.
Changes to Regulation 21 further provides that a person held in custody for any purpose of the Law may be required to submit physical specimens, in addition to the existing finger-printing and photo requirements.
Seasonal Work Permit for the tourism sector:
Changes to Section 2 and 53 (subsections 1 and 2) establish a new 8 month temporary work permit for a seasonal worker within the tourism, hospitality or water sports sectors. This new temporary work permit only applies to these three named sectors and cannot be extended. Similarly no further work permit can be issued to that same worker unless that person has left the Islands for at least three months immediately following the expiry of the seasonal work permit.
The cost of an 8 month seasonal work permit will be two thirds of the full one year work permit grant cost for the relevant category.
Temporary Work Permits for Entertainers:
Waiver of work permit requirements for repair or service of products under Warranty:
An addition to Regulation 11, subregulation 2 now includes representatives of foreign manufacturers who come to the islands to service or repair products under warranty as being exempt from requiring a work permit, provided that they do not remain on island for a period in excess of 7 days.
Waiver of visa requirement for countries who have recently joined the EU:
Following a change in Regulation 22, subregulation 1(b), the following European countries are no longer required to produce a visa on landing in the Islands: Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, Slovenia, Bulgaria and Romania.
Furthermore, cruise ship transit passengers or crew who are nationals of any of the countries listed in Regulation 22 subregulation 3 no longer require a visa. Ecuador has been totally removed from the list requiring visas.
Exemption from Repatriation Fee for Teachers and Ministers of Religion:
A change in Regulation 26 now exempts School Teachers and Ministers of Religion from the $200 repatriation fee.
GENERAL FEE CHANGES: (Regulation 19):
Issue of Residency and Employment Rights Certificate:
Previously, this was charged under 3 categories:
(a) Unskilled: $400
(b) Skilled: $1500
(c) Professional: $5,000
Under the new Regulations, individuals will now be charged on the basis of their earnings, as follows:
(a) up to $20,000 per annum $500
(b) between $20,0001 and $40,000 per annum $1,000
(c) between $40,0001 and $60,000 per annum $2,000
(d) between $60,0001 and $80,000 per annum $3,000
(e) between $80,0001 and $100,000 per annum $4,000
(f) $100,0001 and upwards $6,000
New charge for Key Employee Applications:
The new Regulations now show a $250 charge for submitting an application to designate a key employee. Previously there was no charge for this application.
Issue of re-entry permit or stamp:
This will now be charged at the rate of $20.
Dependants of temporary work permit holders:
In the case of a temporary work permit holders, including a seasonal work permit holder, the dependant fee will be $250 per dependant. The normal fee is $500 for a full work permit, with the exception of domestic or unskilled workers, which is always $250.
