The territory has chosen to implement a mix of new laws and regulations to deal with immigration issues that have arisen due to the coronavirus pandemic
The Cayman Islands government has drafted, and is in the process of passing, a series of amendments to the territory’s immigration laws to address the effects of the global pandemic on the local workforce.
The initial policy changes were made in the form of directives issued by Workforce Opportunity and Residency Cayman (“WORC”) many of which will now be codified by changes to the territory’s primary and subsidiary legislation with the drafting of the Immigration (Transition) (Work Permit Exemptions) Regulations, 2020 (the “Transition Regulations”), the Immigration (Transition) (Amendment) Bill, 2020 (the “Immigration Transition Law”), and the Customs and Border Control (Amendment) Bill, 2020 (the “Border Control Law”).
Quick action
We previously reported on the interim measures adopted by WORC. These directions issued by way of a policy statement enabled certain immigration processes to continue to be carried out by that department notwithstanding the physical closure of its offices. These directions are merely policy and do not have the force of law, but were an improvised solution to an unexpected situation while government offices were largely closed to the public.
The directives simplify and, in some instances, authorise the waiver of certain requirements stipulated by Law such as the need for applications to be accompanied by a cover letter, the requirement to provide a medical for work permit applications filed between March 20 and May 20, 2020, the requirement to provide original signatures, police clearance certificates, photographs and accommodation forms, and the requirement to advertise, subject to the publication of the vacancy on the government’s electronic jobs portal.
WORC’s directives also permit persons to continue to work after the expiration of the term of their work permit as long as the government’s shelter in place restrictions continue. They also brought into operation the ability to transfer funds electronically for the payment of fees.
Transitionary measures
The Transition Regulations were passed by the Cayman Islands’ Cabinet on April 21, 2020. They are a temporary measure and are intended to be limited in duration. The date of their expiration will be determined in the future by Cabinet. The Transition Regulations facilitate the recruitment of foreign medical personnel by the Health Services Authority or private hospitals should the need arise.
The Immigration Transition Law is expected to come into force shortly and is intended to formalise certain aspects of the directives mentioned above.
The longstanding requirement to advertise a vacancy in two issues of a local newspaper unless exempted will be made optional and instead any vacancy to which a full work permit relates must be registered in an electronic portal established and managed by WORC for fourteen days before submission of the work permit application.
The Immigration Transition Law will also remove the current preference given to spouses of Caymanians over other permanent residents. Instead all permanent residents with Residency and Employment Rights Certificates will be afforded equal consideration. Further, it will no longer be an adequate defence if a local applicant for a position that is subsequently made the subject of a work permit was overlooked in error. Such a mistake may now result in the imposition of a fine and possible imprisonment.
A series of additional transitional measures will be introduced by the Immigration Transition Law to take into account the effect of the closure of WORC’s office on work permit extensions and renewals. Where a work permit expired on or after March 27, 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, under the employee will not be deemed to have committed an offence by continuing to work under the same terms and conditions as the expired permit so long as an application for the renewal of the work permit is made within 30 days of the commencement of the legislation.
If no such application is made within the time stated, the employee must cease working. Failure to comply with this requirement will mean both the employee and the employer will have committed an offence and will be liable on conviction to a fine and/or imprisonment for one year. If an application is made within the 30 day period, then the right to work (and to employ) by operation of Law is preserved pending determination or appeal.
Where a worker’s term limit expired on or after March 27 2020 and an employer was unable to make an application for its extension due to the closure of WORC and the worker has continued in employment, neither the worker nor their employer will be deemed to have acted in contravention of the Immigration Transition Law if the worker continues to work on the same terms and conditions as applied to the now-expired work permit during the period between March 27 (or other applicable date) and 90 days after the commencement of the Immigration Transition Law.
Lastly, the proposed new legislation confirms that where an employee has continued in employment after the expiry of their work permit on or after March 27 2020, they will not be deemed to be in contravention of the Law for the period until their employment ended up to 30 days following commencement of the amending legislation.
Greater powers for Cabinet
The Border Control Law is expected to be brought into law in the coming weeks. It will amend the Customs and Border Control Law, 2018 to give Cabinet the ability to give directions to the Director of Customs and Border Control in a move that is expected to offer the greater flexibility with regard to the management of the territory’s borders in the coming weeks and months.
