So goes the old saying.
First to clarify the standing of this document in relation to the law. The Immigration Law, currently the 2009 Revision, is the final word on immigration matters in the Cayman Islands. Section 99 of the law authorises the Governor-in-Cabinet (the Governor technically, the Cabinet in practice) to issue regulations dictating how the law should apply. Obviously the law can only be changed by amendment or revision in the Legislative Assembly, a labourious and politically fraught process. The regulations, by comparison, can be changed by a mere stroke of the premier’s pen, the method by which work permit fees were recently raised.
Section 100 of the Law, invoked in this instance for the first time, goes one further and authorises the Governor-in-Cabinet to issue ‘Directions’ to provide guidance to the authorities in the exercise of their respective duties, powers and functions. This seems a bit redundant. Why not simply amend the regulations?
The Directions contained three changes of varying significance to the modus operandi at the immigration department, insofar as their policies and practices relate to work permits for financial services staff.
First, the directions require the chairman of the Business Staffing Plan Board to establish a Financial Services Sector Committee comprising him/herself or his/her deputy along with at least two others from the Board.
Second, the directions bestow a presumption of keyness on certain employees for whom a key employee application is made. The operative word is “certain” (the made-up word is “keyness”).
The third and final element is that certain workers may be issued work permits of three to five years in length.
Let’s take a closer look at these changes in declining order of magnitude.
Anyone who has ever served on a committee will be familiar with this natural law: the length of time taken for a committee to reach a decision varies exponentially with the number of members on that committee. Therefore the creation of a sub-committee to the BSP Board ought to speed up the processing time for financial services work permits. Hallelujah.
Also, the Directions require that two or more of the appointees have expertise in the financial services sector. In the past there was at times a lamentable lack of financial services industry expertise on the immigration boards and at the same time not enough lack of other people. In spite of a large roster, the boards, meeting only once per week, sometimes did not get enough members for a quorum. Thus, work permit decisions were made at a downright geological pace, no matter how important the employee to the company or the company to the economy.
Having a smaller, more nimble and knowledgeable immigration sub-committee for financial services is eminently sensible and should probably have been done many years ago. A smaller board will reduce the burden on the time and professional lives of members, who are mostly private sector volunteers, and allow more frequent and productive meetings.
So, work permit decisions should be faster and less arbitrary. So far, so good.
The main downside of this first change is that it scopes out most local companies – companies that operate within the Cayman Islands are nearly always majority-owned by, and more often than not managed by, Caymanians. Such businesses will need to wait in line for work permits under the doddering old system that has been officially deemed too ineffective for the cut and thrust world of financial services. It would have been better to just reform the system so that it worked properly for everyone, regardless of industry.
Time will tell if this lean, green committee will be as mean as the one it replaces. If it is not seen to be an effective watchdog safeguarding Caymanian employment interests, the Immigration Department’s raison d’être, expect to see a popular backlash and further round-the-edge system tinkering.
As for the “presumption of keyness”, a careful parsing of the Directions unfortunately reveals this as so much mealy-mouthed mutton dressed as legislative lamb.
First, the presumption applies only to senior managers and above, the vast majority of whom are already exempted by a prior application, PR or status. See the law for a full list of qualifying job titles.
Second, as with the permit fees, the Directions place a rather precarious reliance on somewhat inconsistent and somewhat arbitrary job titles.
Third, the presumption applies only to applicants from “accredited companies”. The directions do not set out the actual process for accreditation, rather they require the establishment of a chimeric task force to “establish a list of accredited employers” presumably by any means they see fit. God alone knows how soon this accreditation process may be finalised and what joys lie in store for applicant companies.
Although a framework exists, from a scheme proposed under the previous administration and seemingly shelved after the May election, that scheme was onerous, cumbersome and potentially expensive for both the company and the government to administer. Whilst the upside of accreditation would be somewhat dubious even if you were successful, the downside could be disproportionately worse. Just applying for the accreditation would surely mean inviting a team of government inspectors to crawl over every inch of human resource practice in the organisation. Any areas of inadvertent non-compliance could attract a stiff fine or other regulatory sanctions. And who wants to be remembered for not being worthy of accreditation? Heads you win a tiny advantage for one or two employees, tails you lose a bundle of cash and/or your reputation.
Fourth, and worst of all, though the intention of the new Directions was clearly to provide some advantage to financial services staff in the key employee application process, the wording of the Instruction seems to confer little, if any, such advantage.
Consider the wording of the Directions (emphasis added):
“… a presumption shall exist in favour of designating such worker as key if that worker fulfils the requirements of section 49(4)(a), (c), (e) or (f) of the [Immigration] Law”
Compare this to the wording of that section in the Law itself:
“Before the Board can designate a worker as a key employee, the employer shall… satisfy the Board that the worker fulfils one or more of the following requirements [a through f]”.
Under the Law you must fulfil at least one of the requirements before you can be designated key. On the other hand, under the Directions, fulfilling one of the requirements earns you a presumption in your favour, but not designation as key. Huh?
The difference is so subtle as to be almost non-existent. The problem seems to be that, under the Law, there was a requirement of such and such for the Board to be able to designate a worker as key, but no obligation for the Board to do so even if that condition was met. If this were the case, the implication is that, under the law, the Immigration Board has de facto absolute discretion in granting key employee status (and if this was not the case then this element of the Directions would be redundant anyway). In other words, the board could decline a key employee application no matter how many of the requirements were met, an implication that ought to worry any expat or employer of expats outside of financial services.
Furthermore, under the new Directions, meeting any of the requirements still does not guarantee key status, it merely bestows a presumption of keyness in your favour; a presumption open to rebuttal on a whole host of grounds including the prospective key employee’s nationality, qualifications, character, reputation, mastery of English, salary level, standard of accommodation, the company’s training programmes for Caymanians and naturally the availability of suitably qualified Caymanians for the role.
The ambiguity and subjectivity in the designation process should a requirement be fulfilled is nothing compared to the subjectivity involved in determining whether or not a requirement is fulfilled in the first place and that is no different under the Directions than under the Law.
Finally, the implementation of three to five year work permits for certain classes of senior staff. I have never met any work permit holder at any level in financial services who did not operate under the assumption that their work permit would be renewed year after year, let alone senior staff, whose permit renewals are normally all-but-guaranteed in a Business Staffing Plan in any case. If it were any different, why would any expat ever buy a property in the Cayman Islands?
Granting three and five year permits is a bit like bragging that you are no longer an alcoholic; designed to be perceived as an advantage, to the uninitiated, it merely draws attention to a disadvantage. It is an official reminder that indefinite renewal, even up to the term limit, is not to be taken for granted by any work permit holder or employer at any level and for any length of permit. This was always the case, but something that frankly may have been better to remain tacit in the system.
Though all of these changes were made with the best of intentions, their effect is too much for most ordinary Caymanians, too little for most financial services companies and expatriate professionals and too late for some in both camps.
In my opinion, immigration requires comprehensive reform to speed up processing time, allow businesses in all industries to hire the staff they need to be able to function and grow, and above all safeguard Caymanian employment rights.
The current immigration machinery does a mediocre job on all three fronts and neither the tightening of a screw, nor a fresh lick of paint, is going to change that. The system needs to be re-designed and built from scratch.
It’s a dirty job, but someone has to do it.