‘Senior Executive position’ – What’s in a name?
First published in The Bermuda Chamber Of Commerce Newsletter (Chamber Insider) January 2019
Some may not consider the importance of their job title so long as they are being suitably remunerated for the roles that they fill.
However, employers should take special care in ensuring that job titles, particularly for work permit holders, clearly reflect the position and roles carried out by their employees, particularly with respect to the level of seniority. Failing to do so may, amongst other things, delay or jeopardize an employee’s eligibility to obtain a Permanent Resident’s Certificate (PRC).
Pursuant to the Bermuda Immigration and Protection Act 1956 (Immigration Act) and the Economic Development Act 1968 (Economic Development Act) senior executives of eligible companies (each being a designated company) are eligible to obtain a PRC.
In order for a person to be eligible for a PRC, such person must:
(a) be eligible for exemption from Part V of the Immigration Act under section 5 of the Economic Development Act for at least 10 years, and has either been granted an exemption or made an application which has not been refused;
(b) be ordinarily resident in Bermuda for a period of at least 10 years; and
(c) be ordinarily resident in Bermuda during the two years immediately preceding the application.
The relevant section for the purposes of this article, and the section we will focus on, is section (a). Eligibility for an exemption from Part V of the Immigration Act refers to the requirement to obtain a work permit before engaging in gainful occupation in Bermuda (Work Permit Exemption). Pursuant to section 5 of the Economic Development Act, a person in a senior executive position in a designated company is eligible to apply to the Minister for a Work Permit Exemption. Accordingly, eligibility to obtain a PRC depends on, inter alia, whether such employee has been in a “senior executive position” for at least 10 years. In determining an applicant’s eligibility, the Minister will look at the job titles used in the applicant’s work permits throughout those 10 years.
The term “senior executive position” is not defined in the relevant Acts. This is where the risk lies. Whether a title is sufficiently senior depends on the interpretation of that title by the Minister. As such, while an employee may have been in a senior executive position for the requisite time, the level of seniority may not have been reflected in the employee’s job title. This would likely result in any application for a PRC to be refused on the basis that the application has not been in a “senior executive position” for at least 10 years. Care therefore needs to be taken that the job title accurately reflects the employee’s seniority and work actually undertaken.
A refusal does not necessarily mean the end of the road for the applicant, as it can be appealed and a refusal by the Minister does not bar any future applications. However, any refusal would inevitably result in delays to obtaining a PRC or where a future application is the only option; there is a risk that the applicant’s circumstances may change resulting in the application no longer being eligible.
This note is intended as a high level overview of this topic and there may be a number of other issues which will also require consideration. Legal advice should always be sought on a case by case basis.
