Carers cleared to stay

| 09/09/2010

(CNS): The country’s premier says he has a legal opinion which has cleared the introduction of a special certificate to allow domestic workers looking after the sick and elderly to bypass rollover without have the right to claim residency. As government pushed through the amendment to the Immigration law in parliament yesterday, McKeeva Bush stated that he had been advised that every state is allowed to determine its own conditions of residence. The question was raised by the opposition benches when they said that, while they supported the idea of allowing special care givers the right to stay, there were concerns that this method would lead to a number of legal challenges.

Bush, however, said legal opinion had been sought in London and government was able to determine these issues.  “Our law is supreme and there are no international obligations telling us that we can’t so this,” he added.
 
The question of law surrounds a special residency certificate which will enable “specialist care givers” who are on work permits and who qualify under the criteria of the amendment, to stay past the normal seven year term limit for five years. It also allows for one renewal, which means the workers could stay for as much as seventeen years in continuous residence here, but Bush maintained they would not be able to apply for PR under the certificate. (See law here)
 
Presenting the bill to his legislative colleagues, he stated the goal was to find a way to ensure the most vulnerable in Caymanian society did not lose those on whom they were most dependent. Bush said he and other MLAs had all received countless representations over the years about the loss of special carers who were part of people’s families to the rollover. He said in some cases these workers were critical in tending to the needs of the elderly, disabled or sick children and believed government had to address the problem. He illustrated the problem when he gave the example of at least one Caymanian family that left the islands and moved to Jamaica in order to stay with their helper who was rolled over.
 
“If there is a way to address the problem then there is no reason not to do it,” Bush told his legislative colleagues as he set the bill down for its second reading. The premier said the country had adopted the seven year rollover to address immigration issues but the government could not be inflexible about it. As these workers could never qualify for PR because of their financial circumstances, he said this certificate would bypass the problem and allow them to stay with the families and vulnerable people who needed them.
 
However, the opposition pointed out anumber of potential pitfalls from the legal problems of continuous residency to the repugnance of potentially keeping a foreign worker resident here for as much as 17 years with no rights and on low pay before deporting them at their most vulnerable time.
 
The question of “why not for other sectors” also arose as the opposition benches noted that this would raise the question that if it can be done for one it can be done for any job. In addition, he question was asked, if this certificate was not going to fall foul of human rights laws of the UK’s concerns, then where was the need to retain rollover.
 
The law has reached the committee stage and is expected to become law this morning when the Legislative Assembly resumes its sitting.
 
See more on this on CNS at the weekend
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Comments (45)

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  1. The Crown says:

    Who does he think he’s fooling? I sent you back 1 “RORSCHACH”,i’ll have to check on it. In the mean time look up Quincentennial.

  2. Beachboi says:

    I bet that there is someone in Mac’s family whose helper is about to be rolled over so he came up with this idiotic idea. 

    I hope the day comes very soon when all the expats decide that all of this discrimination is just not worth the crime and high cost of living and leave.  Then we will see what we are left with.  I dont know why anyone who faces hard ships such as having to pick up roots and leave after dedicating 7 years of their lives to a job and a country would want to stay here anyway.  When they all leave they we will have to eat the words "expat" and "paper Caymanian".

    Cayman is going down hill very fast, and if something is not done then we will soon lose our international business status and all the toursists. 

  3. Anonymous says:

    I put money into Cayman’s economy.  I would like to stay here formuch longer than 7 years. I would be happy to sign something saying that i would never apply for PR, status etc. So why do I have to leave when if I was a "care giver" I could stay?

    • Anonymous says:

      I am not at all convinced that the caregiver exemption is going to work. I would love to see the opinion obtained from London on that. Perhaps he feels that the caregivers would not change their minds and have the wherewithal to subsequently challenge it on human rights grounds whereas you would.   

      • Anonymous says:

        Employees are important to every Employer. What about the baby sitters and the cooks , while the poor employer is out to work and return home in the afternoon it is very good to sit down to a good meal.

    • Anonymous says:

      This is an easy problem to solve. For many years I said that RESIDENCE AND STATUS should be done away with. Those who qualify for a work permit and their behaviour on the job is excellent then they should be allowed to stay as long as their behaviour remains so. Those who give problems should be sent back immediately. The roll over is only encouraging double the amount who is here, as when one reaches the 7 year and returns home another comes to fill that position and they remain here and the roll ver worker returns within a year. This is easy mathamatics.

      • Anonymous says:

        You are missing the fundamental point that international human rights standards, which will be enforced by Britain, will not allow us to have people resident here indefinitely without at least giving them the opportunity to obtain permanent rights. Obviously if the problem were as simple as you think it would have been solved long ago.  

        You need to have a thorough understanding of the reasons for rollover before you discard or replace it. I am not sure what "encourage double the amount" means.

  4. Anonymous says:

      Grand Cayman,  If something is not screwed up yet then someone is getting paid to look into it.  If something is screwed up then someone is getting paid a lot to make sure it stays that way.

  5. Anonymous says:

    Checks should be in place to stop people using this as a method to live with someone on this WP and not have a job.As some are doing now.

  6. Anonymous says:

    if only laws to clamp down VIGOROUSLY on crime/violence/corruption/drugs/crimes against woman and children/protection of our environment were passed so easily!  

    • Anonymous says:

      Passing laws that remain unenforced is feel good legislation only. The enforcement of law in Cayman remain sellective at best and there are countless examples of laws on the books that remain ignored.

  7. Ray says:

    If "new" legal opinions have been obtained that differ from those put forward during the constitution discussions, then the Premier should provide the details of the opinion and the authorities that gave them. Otherwise, I for one do not see how much faith can be put in his statements.

  8. Anonymous says:

    "McKeeva Bush stated that he had been advised that every state is allowed to determine its own conditions of residence."

    This is not the song he sang when he handed out Status grants.  He sure does flip Flop if it is convenient to his needs.
     

  9. Anonymous says:

    “Our law is supreme and there are no international obligations telling us that we can’t so this,” he added.

     

    There you go, you officially (in his own words) have how he views the world.  His law (what he says) is supreme.  Evidently he doesn’t care about International Human Rights or International Law, and has officially stated that the only thing that matters is what he thinks matters.

    I am astounded…well maybe not astounded as I expect nothing bu the best from him! (Sarcasim Intended).

    • Anonymous says:

       In this context the use of the phrase "our law" denotes "Cayman Islands Law" as in the laws of the Cayman Islands and not the laws of the Premier. 

  10. Wowzers says:

    What was the point of the rollover policy, if it will continue to be altered for different scenarios all the time.

    • Anonymous says:

       In all fairness, in the case of the civil service it has never been altered. 

      • Anonymous says:

        It’s ironic that the government pushes roll over and a horribly inefficient work permit bureacracy onto the private sector and then skirts both issues when it comes to contracts for expat civil servants. It appears that the government cannot afford to obey its own laws or finds them too inconvenient.

        The government does not like eating its own dog food.

  11. S. Stirrer says:

    Following on from the previous rollover themed thread, I’m glad you all think this rollover is something new. It’s been happening since the beginning of time. You really think they need a reason not to renew your work permit after a year, two years, three years? Come on now, it’s always been the case that those coming close to the Status requirements of the time that are not seen to be fit by those self-righteous people who make those decisions are simply not renewed. Rollover is merely an attempt to sugar coat it.

     

    • Love My Adopted Homeland says:

      S. Stirrer you are indeed correct.

      There has always been a ‘rollover’. It just wasn’t called that at the time.  It wasn’t such a big deal since you knew that any year your next permit may not be renewed.

      I came in ‘9 and it was explained to me "that those coming close to the Status requirements of the time ….are simply not renewed"

      At that time it was 5 years, then 7, then 10. (I’m sure someone will correct me if I am wrong)

      Then 10 years later, 2002, I heard people that people were applying if you had been here 10 years. I applied and received my status by length of stay. Very soon during that process, they were being handed them out as freebies to any old shoe. (I really didn’t believe it at first)

      Took the wind out of my sail a bit, but I can honestly say that I got mine by right.

      xoxo to Cayman

      • Anonymous says:

        That’s funny, you never stated what year you came in…’9 isn’t a year?

  12. Anonymous says:

    I hope this legal opinion is not from the AG or the legal dept. in this country. This track record leaves a lot to be desired and I dare say they have gotten a lot wrong. Only a matter of time before one of these caregivers challenged this law.

    Why then, can we not apply this same logic to key employees? Why do they have to be eligible for status?

    • Anonymous says:

      The article said "Bush, however, said legal opinion had been sought in London…".  I assume this means from legal constitutional experts such as David Pannick, Q.C. Frankly, I would like to see precisely what this advice said as I find it doubtful that leading counsel would give an unqualified opinion that we have carte blanche to deem a period of residency as not constituting residency for the purpose of gaining rights under the various international conventions.       

    • Anonymous says:

      Surely you jest. When will a care giver be able to pay an attorney $600.00 per hour to take this court?

      • Anonymous says:

        Surely you have heard of Humane Rights agencies that will foot the bill or a lawyer that might do it pro bono?

        • Anonymous says:

          Either you are being sarcastic or you are from a different planet. 

        • Anonymous says:

          There seem to be two very contrasting views here. Can you name those agencies to put an end to this particular converation? 

      • Sheerluck Holmes says:

        If there was a failure to comply with a European Convention of Human Rights obligation any Cayman resident could sue the UK government in England under the Human Rights Act, get damages and an order that the Cayman legislation be changed from London.  Such a claim could be brought on a no win no fee basis and would have less technical hurdles than trying to bring a claim in Cayman.

        Unfortunately the immigration issue mentioned in this thread does not fall with the remit of the ECHR so that option would not be available for this topic.  It will be available for many many other breaches of the fundamental rights of residents here.

  13. Fellow Caymanian says:

     The can of worms in officially open…

    Once someone has been here 17 years, they may not be able to apply for PR under the certificate – but under international human rights conventions, there is nothing, I understand, that can be done to prevent them getting it!!!  All it takes is one person to challenge it to Privy Council…

    Now, in truth, rollover needs to go – it has done nothing but destroy our homeland by creating animosity and a divide between expats and many Caymanians, while at the same time, creating a mindset of transiency amongst the expats that leads to a lack of commitment to Cayman, as they will be kicked off regardless!!

    Bythe way, Mr Mac – where are the new rules to bring rollover (if we must keep it) to a more palatable 6-month break??  Giving someone a manageable time abroad might lessen the feelings of being an outsider.

     

    • Anonymous says:

      I disagree about rollover. If refined is serves a legitimate and sound role.

      The period of absence required was shortened from 2 years to 1 year by the previous govt. Six months has been reckoned to be the dividing line between whether you have broken residence or not but even this is subject to a number of qualifications. There is a distinct danger that this could be held in certain cases as not constituting a break in residency, e.g. where it is simply used for an extended holiday, whatever the law deems.    

      • Fellow Caymanian says:

         Most countries define 6 months and a day as a break in residence.  This is usually used to apply to tax paying requirements – ask the Brits and Canadians – stay there a day over 6 months, and it is your residence and you are subject to full taxation ‘for that year’.  

        By extension, this could be applied to immigration – stay away from here for 6 months and a day – you are not resident ‘for that year’ thus effectively applying a full year break.

        As for an extended vacation of 6 months – I can only say I am glad you could afford a vacation that long…  Maybe a sabatical – but then that is a break from work…  People who can afford six month vacations would probably have more than sufficient funds to achieve residency by means of wealth!!!

        On another note, I fail to see where a policy that stifles investments by the majority and forces a constant turn over of the expat population could be in any way beneficial overall…  I have lost a lot of good friends to roll over and most aren’t willing to go through the uprooting and thus don’t come back.

        Further – how many banks will give a 15 year mortgage when they know you will be kicked off in seven?

        Also – for every person you roll over, there is usually some degree of replacement.  Every employer takes the risk of that replacement being a bad apple.  If you have an honest hard working employee, why should we have a policy that forces you to risk getting a bad apple replacement?

        In truth, I am not 100% opposed to rollover – I am opposed to the way it was implemented and the divide that caused.  Truthfully, ALL employees currently on the islands with a legal work permit when the policy went into place should have been grandfathered in under the old policies.  Too many families had been here 4-5-6-7 years when the policy came in, and they were living, working and investing based on the assurances under the old laws.  Sure, permits were denied under the old rules, but there were avenues of appeal.  These same people, suddenly found they had to leave, in some cases, within weeks or months.  Try selling a home, car, business and moving in weeks.  Try telling kids they are moving schools next week in the middle of term…  It was a poorly executed implementation that did not look at the big picture and the repercussions.

        Today, you cannot tell me our community is safer, more friendly and tolerant and a better place than it was 10 years ago.  

        Sure, it is safer and friendlier than many places – which is why many newcomers (fortunately for us) still think it is a pretty good place to be.  But it sure ain’t the Cayman I grew up in!!!

         

        • Anonymous says:

          "I am not 100% opposed to rollover – I am opposed to the way it was implemented and the divide that caused. Truthfully, ALL employees currently on the islands with a legal work permit when the policy went into place should have been grandfathered in under the old policies.  Too many families hadbeen here 4-5-6-7 years when the policy came in, and they were living, working and investing based on the assurances under the old laws. ".

          This is a song that I keep hearing from the UDP who hope that they will thereby disclaim responsibility for any ill-effects of rollover. The term limits were implemented according to the Immigration Law which created them. The Law expressly applied to persons already resident in the Islands.  True, there were none of the planned mass exemptions for "special" firms (but not for others).  

           Work permits are typically issued for a period of 1-3 years. There is no guarantee of renewal. That has always been the case. In fact that law expressly stated that there should be no expectation of renewal or of securing permanent rights.

          There were no "assurances" under the old laws. Before rollover permitholders complained bitterly of the "uncertainty" of their tenure.  Rollover provided certainty but not of the variety hoped for.

          "You cannot tell me our community is safer, more friendly and tolerant and a better place than it was 10 years ago".

          We agree on that, however you are making a leap to suggest that this is on account of rollover. I don’t believe it is. There are many factors at play including the coming home to roost of the unaddressed juvenile deliquency and school gangs of the 1990s, the unsettling effect of Hurricane Ivan and the state of the economy which in turn is a reflection of the global recession and the international initiatives ranged againstus. Do you really believe that all will be hunky doory if we simply allow all residents to acquire permanent rights, or will that cause untold social unrest?

          Why is there an assumption that all of the permit holders pre Rollover were great whereas all of those since are bad? Rollover actually helped some employers inexpensively rid themselves of ‘hangers- on’ employees and replace them with better ones. 

          Re the six months break, I pointed out in my original post that six months is often reckoned to be dividing line. The problem is that that line is not as clear and immutable as you believe it to be, and residency for tax purposes may not be interpreted in the same way as residency for purposes of acquiring permanent rights.  In any event you are missing the point that such a short break could be comprised of different segments some of which qualify as a break and others of which don’t so that the net effect is that there has not been a break in residency notwithstanding that you have been away for six months. 

          I am afraid you are being too simplistic about the issue.  It is not Rollover = every conceivable evil, versus No Rollover = life is good because all my friends can stay.    

          • Fellow Caymanian says:

             I see your points, as you, I am sure, see mine.  Bottom line, there is no clear-cut on this.  I find it funny you think my line of argument is UDP-alligned when I can assure you I did not vote for a single member of that party.  If you recall, contrary to what many people keep saying here, it was the UDP that implemented rollover.

            Far from it being either of your rollover= arguments at the end of your post, it is a much broader series of changes.

            Yes, the Ivan effect did not help.

            Yes, the gangs have been warned about since the mid to late 80’s.

            But also, any time you force a change over in population, you open the doors to new people and new ideas.  Some of these will be bad.  The more often you force the population base to change, the more you are risking letting in more bad apples.

            We can agree to disagree on the benefits of rollover.  I can assure you, I am all to aware of it having always been in existence to some degree, and was subject to many instances of it as I grew up.  And, sadly, this was largely a biased decision – seldom was a senior manager permit denied, but helpers were seldom left to run more than 3-4 permits before having to "go down" (they were pretty much all Jamaicans back then – now we have other policies that permit holders cannot have Jamaican helpers, so we have an influx of Philippeanos and increasingly, Indians and no doubt soon the Chinese. But that is another subject for another debate!)

            Either way, I stand by my view that the rollover has created guaranteed uncertainty, and can only speak for the personal experiences with friends and acquaintances who have been forced away and have no plans to return.  

            I can also reel off a dozen cases of people I know who have bought property so they can achieve points to get residency, but due to the uncertainty of that, have sat waiting 3-4 and even 7 years waiting to hear and go through appeals before they put a single cent into building.  The way the economy is now, we would do well to be focusing on expediting the residency process and getting some ofthis building going!!  As I noted before, banks aren’t going to lend money if there is a chance they won’t get repaid because a person is denied the right to stay and has to fire sale their property!!

             

             

            • Anonymous says:

              Not sure what you mean by rollover has created "guaranteed uncertainty". If you are not a key employee (or a caregiver) you can be quite certain that you won’t be here longer than 7 years.

              OK. We are nearer agreement than it seemed. I sense your sincerity about your concerns.  The trouble is that there are some who suggest that rollover was not a reflection of legitimate and reasonable concerns. What can we replace it with that will meet those concerns?

    • Anonymous says:

      Now, in truth, rollover needs to go – it has done nothing but destroy our homeland by creating animosity and a divide between expats and many Caymanians, while at the same time, creating a mindset of transiency amongst the expats that leads to a lack of commitment to Cayman, as they will be kicked off regardless!!

      Absolutely.  I completely concur with your sentiments.  Add to that those who won’t be kicked off regardless (because they have PR) have to wait so long to have a right to vote that this also creates a similar mindset of transiency.

  14. Anonymous says:

    The question which is need of being answered however, are we now a state? Statehood and nationhood surely is different from being a territory of another country.

    • Anonymous says:

      Quite agree.  When did the Cayman Islands become a state.

      This is quite a disturbing statement: “Our law is supreme and there are no international obligations telling us that we can’t so this,”.  Perhaps some clarification of this would be useful?

      Some confirmation as to the truth of a ‘family departing Cayman to go to Jamaica to stay with their helper’ would not go amiss!  Somehow I do not see a Caymanian family doing this.

      • lisa says:

        It appears as though no matter what either Government do or suggest there is a stream of criticism.  Some people seem to not be able to come up with good suggestions but is always willing to tear down after the fact.  When will we start looking at both sides of the coin instead of complaining for the sake of complaining? 

        • Anonymous says:

          Explain how you see that the poster you are replying to was complaining?

          What are your good suggestions and and what do you mean by ‘tear downafter the fact’?

        • Anonymous says:

          Well, perhaps when the Government finally do do something constructive this will change.  So far as I can see, most of the criticism here is warranted.  The problem is successive governments here have taken advantage of the good people’s complacency and now the people have realised they have been ‘taken for a ride’ they are finally speaking up and making their voices heard.  But they need to do more.  They need to take a stand.

    • Anonymous says:

      According to the Montevideo Convention on Rights and Duties of States,

      a state is: a 1 person in International Law which has the following qualities:

      2,a deifned territory,3 a government,4 a common language and 5 a permanent population.

      How well does Cayman fits within this definition?

      Is it a person in in International Law? Can it enter into international treaties or set up embassies in various countries or only the Uk can do so on its behalf? no

      Does in have defined territory? yes

      Does Cayman have a settled population? yes

      Does Cayman have a Government? yes

      Do we have a Common Language? yes

      It should be pointed out that a hand full of countries have two languages  but this does not do any injustice to the Montevideo Convention. as to the entry into international treaties. if Cayman can only do so with the permission of the UK then this aspect of the definition is not satisfied. As such, Cayman could not be classified as a state. I am thinking of the Mutual legal assistance teaty with US and agreements to prevent money laundering that have signed by the premier.

      Just food for thought