Onus shifts to justify work permit exemption
First Published in The Royal Gazette, Legally Speaking, May 2018
A shift in the interpretation of a key section of employment and immigration legislation has put the onus on companies to justify why their senior executives should qualify for a Permanent Resident’s Certificate (PRC).
Currently, the only pathway to obtain PRC status is through the Incentive for Job Makers Acts 2011 and 2013 (Job Makers Act), which amended section 31A of the Bermuda Immigration and Protection Act 1956 and inserted section 3B of the Economic Development Act 1968 (Economic Development Act).
The Job Makers Act provides exemptions to senior executives or those responsible for creating job(s) for Bermudians and who are critical to the continuity of the company in Bermuda, from needing a work permit.
While there have been no updates to the legislation since 2013, since the current government came into power in 2017 there has been a shift in the interpretation of section 3B.
Section 3B(2) of the Economic Development Act sets out the requirements that a company must meet in order for its senior executive employees to be eligible for exemption. These requirements are that the company:
- has at least 10 persons with Bermudian status on its staff;
- has persons with Bermudian status employed at all levels in the company, subject to the availability of suitably qualified Bermudians;
- provides entry-level positions for persons with Bermudian status;
- has programmes in place for developing and promoting persons with Bermudian status; and
- exercises employment practices that have not regularly required the intervention of labour relations officers under the authority of the Manager of Labour Relations or the Human Rights Commission.
The shift in interpretation comes into play in respect of section 3B(3) of the Economic Development Act, which provides that the Minister may, after taking into consideration various criteria, lower the number of persons with Bermudian status that a company should have on its staff for the purposes of section 3B(2).
Under the previous government, section 3B(3) was used as a catch all discretionary section for government to investigate further into a company whose application did not quite meet the criteria for the exemption under section 3B(2).
Currently, under the new government, where a company does not meet the criteria for the exemption under section 3B(2), such company must provide submissions as to the criteria set out in section 3B(3), namely:
the size of the company;
the significance of the company to the economy of Bermuda;
the existing or likely economic situation in Bermuda;
the protection of local interests; and
generally, the interest of the community as a whole.
While in the grand scheme of things, this change in interpretation does not significantly alter the application process, it puts the onus on the company to set out the considerations that the Minister should have in respect of the section 3B(3) criteria and may result in delays in the processing of a company’s application – i.e. where such submission is not included in the initial application.
Considering that the Job Makers Act is the only way for non-Bermudians with no real Bermudian connection to remain on the island and engage in gainful occupation indefinitely, this extra step ensures that applicants that are granted a PRC have proven to be of benefit to Bermuda’s overall community and economic health.
