Query about work permit renewals
What is the stance on companies advertising jobs that are work permit renewals? Is it a requirement that they must note in the ad that it is a work permit renewal? Secondly, how does immigration know whether a qualified Caymanian applied and if indeed someone (expat) is already in the role? Is there a requirement that the qualified Caymanian is taken on to succeed them at the end of the permit? Thirdly, how does the company get around immigration to still have the permit renewed when qualified Caymanians have applied? Lastly, what recourse is there in the event the company is granted the work permit disingenuously after having a suitable Caymanian?
Auntie’s answer: You have certainly crammed a lot of questions in there and, to the credit of the Department of Immigration official I contacted, every one has been answered.
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I will take them in order. There is no requirement that a job advertisement must state that it is for a renewal of a work permit.
As for how the department determines that a Caymanian has applied for the advertised job, we can look to the law. Under Section 44(5)(a) of the Immigration Law, when submitting an application for a work permit the employer has a duty to disclose whether any Caymanians, spouses of Caymanians or permanent residents (RERC) have applied for the position. Sometimes those individuals will submit a copy of their application to immigration.
The answer to your question about taking on a Caymanian to succeed a work permit holder is more about creating opportunity than specifically replacing someone. The official explained that there is no requirement that a Caymanian be taken on to fill a role held by a work permit holder.
Under Section 6(1) of the Immigration Regulations (2015 Revision), however, the Work Permit Board or chief immigration officer “may require an applicant for the grant or renewal of a work permit to provide details of any programme that he has that is designed to ensure that Caymanians are provided with the instructions and practical experience necessary to make them fully qualified to carry out the job concerned satisfactorily and as expeditiously as possible”.
Following on from that, Section 6(2) states, “the absence of such a programme or the failure to implement such a programme without reasonable cause constitutes a ground for denying the grant or renewal or a work permit”.
You also want to know about companies being able to circumvent immigration rules when a qualified Caymanian has applied for a job that involves renewal of a work permit. The law is very clear about this point, though I will say that it does seem a lot depends on companies following an honour system of sorts.
The law requires full disclosure from companies applying for work permits for employees. They are obligated to provide the names of all applicants, with their qualifications, working experience and background. They must list the reasons for choosing the successful candidate and rejecting the others, including a copy of the refusal letter and interview report for each unsuccessful Caymanian applicant. Finally, the company must provide a copy of the job description and CVs of the non-Caymanian applicants.
In addition, anyone who provides incomplete, false or misleading details commits an offence and is liable on conviction to a fine of $5,000.
If a company submits all of those documents, then it should certainly be clear whether all the proper procedures were followed, but I did say, “if”. Which leads me to your last question about what to do if a work permit is renewed when a qualified Caymanian has applied for that job.
If you have evidence that an employer has made a false statement or withheld information on a work permit application, you can file a complaint with the Department of Immigration through this link.
I hope that answers all your questions satisfactorily because I am now officially exhausted and need to sit with a cup of tea.
The laws mentioned in this column can be found on the CNS Library.
Category: Ask Auntie, Immigration Questions
Auntie, Immigration does not follow the rules so what is the point? The proper process for a person aggrieved by a decision by a Board is to Appeal. That means Caymanians can and should appeal against the grant of work permits if they feel that their application for a job has not been fairly considered or even that the fact of their application has been unlawfully concealed from a Board. The problem is that Caymanians are wrongly told they cannot appeal, and so nothing ever happens!
Section 15 of the Immigration Law states:
15. (1) Save as otherwise provided in this Law, any person aggrieved by, or
dissatisfied with, any decision of the Chief Immigration Officer under section 30,
37C, 42(5) or 49 or of a Board other than a decision under section 14 may,
within-
(a) twenty-eight days of the communication of the decision to him; or
(b) such longer period as the Chairman of the Appeals Tribunal may,
for good reason shown, allow,
serve notice on the Immigration Appeals Tribunal of his intention to appeal such
decision.
Nowhere is it “otherwise provided.”
Why did immigration not tell you this was an option Auntie? Why are Caymanians told they cannot make such appeals? Is a Caymanian claiming (and even proving) that they have been unlawfully cheated of opportunity not a “person aggrieved?”
One man’s “qualified” is another man’s “hopeless”.
Just as one man’s Caymanian is another man’s Driftwood!