Both opposition and independent lawmakers have questioned whether a plan to exempt certain domestic helpers from Cayman’s so-called rollover policy would stand up to legal tests.

The Legislative Assembly was expected to pass a proposal that would let foreign-born caregivers who nurse sick, elderly or handicapped residents stay in the Cayman Islands beyond the expiration of their final work permits. The domestics can only do so if their employers obtained a certificate from either the Work Permit Board or chief immigration officer that allowed helpers to remain up to five more years. That extension only applies as long as they remained with the same employer.

Premier McKeeva Bush said the proposal was needed to ensure the provision of the best possible care and comfort for the country’s most vulnerable residents.

“Not only have (these domestic helpers) become particularly attuned to the needs of that person, but the person being cared for has often formed a close bond with that helper,” Mr. Bush told the Legislative Assembly during Wednesday’s debate. “We cannot be so inflexible as to enforce this policy (referring to the rollover) to the detriment of those who are vulnerable in our community.”

Without the special certificate, caregivers who do not obtain key employee or permanent resident status are forced to leave Cayman after seven years of continuous residence here. That seven year term limit applies to all foreign workers in the Cayman Islands who do not work for government or who are not married to a Caymanian.  

Mr. Bush pointed out that the certificate – known as the Certificate of Specialist Caregivers – would not allow the domestics who hold it to apply for permanent residence under Cayman’s Immigration Law.

That could be the problem.

“I believe it may be difficult for immigration and the government to deny someone who has been able to work here for 17 years any rights,” said North Side MLA Ezzard Miller during his portion of the debate, adding that he counted seven years for the typical term limit policy plus five years for the initial certificate for caregivers and another five years for a certificate renewal.

Opposition MLA Alden McLaughlin noted that before the implementation of Cayman’s initial term limit policy – in 1 January, 2004 – a number of foreign residents had lived in the Islands for 10, 20, 25 and in some rare cases close to 30 years without citizenship rights or any security of tenure. Mr. McLaughlin said he believed various international human rights conventions, as well as Cayman’s new Bill of Rights, might prevent that same situation from occurring with domestic helpers who hold the extended certificates.

He noted that the previous Immigration Review Team noted in 2003 that it was “socially undesirable” and “morally unacceptable” to allow individuals to stay in Cayman for longer than ten years without some form of security of tenure.

At the same time, Mr. McLaughlin said members of the opposition party were sympathetic to the situation where “key people that we know are caught by coming to the end of their term limits”.

“You rarely see an employer happy about the prospect of losing a good employee,” he said.

Debate on the proposal continued Wednesday afternoon. Late in the day, the proposal passed a crucial second reading by majority vote and appeared to be on its way to final approval.

The bill

Under the provisions of the Immigration (Amendment) (No.2) Bill, 2010, a caregiver would have to be employed as a nurse, nanny or in another care-giving capacity for at least three years prior to their employer making an application for a Certificate of Specialist Caregivers. The caregiver would also have to demonstrate that he or she is in good health.

A fee would be payable upon successful application for the caregivers certificate, according to the bill.

The certificate can be renewed at the option of the person’s employer, but that application for renewal would not be successful if the caregiver ceases to work for their current employer; or if the person being cared for dies, ceases to be sick or ceases to be handicapped. The Work Permit Board or Chief Immigration Officer would also have some discretion in awarding a certificate renewal.

If an application for renewal of the Certificate of Specialist Caregivers is not successful and is not appealed, the caregiver would have to leave the Islands for at least a year – as is standard for all foreign workers whose work permits have expired.