Alerts

Ministerial Statement By Senator, The Hon. Michael M. Fahy, J.P: Civil Penalties Are In Effect

Tuesday, May 19, 2015

Madam President, I would like to take a few minutes this morning to remind all employers, work permit holders and Bermuda at large, that civil penalties are in effect and have been in effect since April 1, 2014.

Madam President, pursuant to the Bermuda Immigration and Protection Amendment (No. 2) Act 2013, civil penalties are levied by the Chief Immigration Officer for the following violations against the Amendment Act:

  • Employing a person to engage in gainful occupation without a work permit;
  • Employing a person to engage in gainful occupation outside the scope of that person’s work permit;
  • Engaging in gainful occupation without a work permit;
  • Engaging in gainful occupation outside the scope of the work permit

Madam President, an employer and an employee can each be levied civil penalties - and multiple penalties can be levied to either the employer or employee in the same case for different offences in accordance with the role each plays. For a first violation, the penalty is $5,000.00 and for a second (or ensuing) violation, the penalty is $10,000.00.

Madam President, in order to be levied a second violation that violation must have occurred within seven (7) years of the first violation. Equally, if a work permit holder presents himself as an ‘employee’ and an ‘employer’ in the same case, civil penalties can be reflected as a first and second violation, making the total civil penalty of $15,000.00 being required for payment by the work permit holder alone.

Madam President, while it is quite common for any of the abovementioned violations to be reported via complaints from the general public, violations can quite readily result because employers and work permit holders are not diligent in submitting work permit applications in accordance with the current Work Permit Policies.

Madam President, by way of reminder, section 4.1 of the Work Permit Policies, requires that a new work permit application for an already resident work permit holder be submitted “no less than one (1) month and no more than three (3) months prior to the expiration of the current work permit.” Only the Ministry of Education and schools can apply for work permits for teaching staff up to nine (9) months prior to the start of the academic year. This is due to the recruiting cycles for teachers. Given this reminder and given the various queries that have arisen since the new policy was put in place I believe it is prudent to lay out to the public how late fees and appeal fees will be applied to submission of work permit applications.

Madam President, under what I will call Scenario 1, if an employer submits a complete work permit application within the one (1) to three (3) month timeframe highlighted above, the employee can continue to work beyond the expiration of his current work permit whilst a decision is made. If the application is incomplete it will be returned and the employee must stop working at the expiration of his work permit. If a completed application is resubmitted prior to the expiry of the work permit, but outside the minimum one (1) month period then an appeal fee ($250.00) will apply. If a completed application is submitted after expiry of the work permit then the employee must stop working unless late fees are paid, and an appeal is made by the employer and approved by the Minister (see below). The employee is not permitted to resume work until there is a decision on the appeal; in other words the mere submission of an appeal does not give an automatic right to the employer to re-engage the employee for work.

Madam President, under what I will term Scenario 2, if an employer submits a complete work permit application, but if the submission is less than one (1) month (essentially twenty (20) working days per expected turnaround times from the Department) from the expiration of the current work permit, then the employee must stop working upon expiry of the work permit, unless an appeal is made to the Minister to allow the employee to continue to work whilst the work permit application is being considered. For, clarity the application must be complete. If not, the application will not be considered. If an incomplete application is submitted and the work permit expires prior to the resubmission of a completed application the employee must stop working, pending an appeal (see below). As with Scenario 1, the employee is not permitted to resume work until there is a decision on the appealThe Minister may place conditions on the right to re-engage employment in that interim period.

Madam President, under Scenario 3, if an employer submits a complete or incomplete work permit application after the current work permit expires, the employee must stop working upon expiry of the work permit. Late fees are payable under this circumstances for late submission of the work permit. However, if the employer wishes the employee to continue to work whilst the completed application is being considered, the employer must pay all late fees and submit an appeal and the appeal fee to the Minister. Again, the employee is not permitted to resume work until there is a decision on the appeal. The Minister may place conditions on the right to re-engage employment in that interim period. If an incomplete application is submitted the appeal will not be considered until a complete work permit application with all relevant late fees and appeal fees are submitted.

If the appeal is denied, the employer and employee must wait until there is a decision on the new work permit before the employee can resume work, (if the permit is granted). For clarity, if the employee does not stop working after his work permit has expired, and the employee does not have the Minister’s permission to continue working, an investigation will be undertaken by the Compliance Section of the Department of Immigration for breaches under the Act. The full case will be passed to the Chief Immigration Officer for consideration of civil penalties to the employer and the employee. Under a separate process, and at the same time, the Minister responsible for Immigration will be presented with the facts of the case and will determine whether the work permit application will be approved or refused. The Minister also has the option to send the work permit application to the Immigration Board for a decision. If the Minister permits an employee to work following an appeal this should not be taken as sanction by the Minister of the employer’s or employee’s actions in employing a person to work and/or engaging in employment, without a work permit.

Madam President, where a Short Term Work Permit is requested prior to a Standard Work Permit application being submitted, the Standard Work Permit application, per the Policy, must be submitted within forty-five (45) days of expiration of the initial Short Term Work Permit or the work permit holder must cease employment upon the expiration of the Short Term Work Permit. Where a second Short Term Work Permit is required and where there is no expectation that a Standard Work Permit would be requested, the second Short Term Work Permit must be submitted ten (10) working days prior to the expiration of the first Short Term Work Permit. This time aligns with the expected turnaround times set out in the policy. Failure to do so will result in the regime above being applied.

Madam President, under the new work permit regime, employees must stop work upon expiry of their work permits and civil penalties may apply if they don’t. The rationale here is simple. Employers and employees are well aware when work permits are due to expire. We must change the habits of employers who took advantage of a system whereby their employee could work as long as an application was made, even if the previous work permit had expired. This loop hole, if you will, has been there for many years. Additional fees for appeals will, I believe, make employers and employees more diligent.
Madam President, there is one more area that I would like to address as it relates to the processes described above; it is the issuance of landing permits. As you may be aware, landing permits are issued to assist work permit holders who have a need to travel during the period of time when a new work permit is being processed by the Department of Immigration on their behalf. In all cases, although the application has been submitted, there is no decision on the work permit at the time of travel. A landing permit provides proof that the work permit holder has a right of residence in Bermuda and allows the work permit holder to be appropriately landing upon return to Bermuda.

Madam President, the issuance of a landing permit is only applicable when a new work permit is submitted in accordance with Section 4.1 of the current Work Permit Policies; i.e. the application must be complete and must be submitted no less than one (1) month and no more than three (3) months prior to the expiration of the current work permit. If the application is incomplete or is submitted late (less than one (1) month before expiry), then a landing permit cannot be applied for or issued, unless the appropriate appeal has been lodged and fees have been paid.

If the new work permit is submitted after expiry of the current work permit, and a landing permit application is submitted at the same time as the new work permit application, the employer will be immediately contacted by the Department of Immigration to advise that the landing permit will not be considered and that a full refund (for the landing permit) will be processed in due course. Work permit holders whose work permit falls to this scenario, will, upon return to Bermuda, be subjected to landing parameters as listed in Appendix II of the Work Permit Policies. If however, the employer successfully appeals to the Minister to allow the employee to continue working during the consideration of the work permit application, a landing permit will be issued. It is therefore important that appeals are lodged at the same time as the new work permit application.

Madam President, I am calling all employers to follow the prescribed guidelines for the submission of work permit applications, as set out in the Work Permit Policies. I am calling on all foreign nationals who intend to undertake employment (either for the first time or as current residents) to ensure their employer gives them a work permit before they undertake employment. Finally, I am calling all persons who may know of someone who is working without a work permit, to contact the Department of Immigration to provide all relevant details about the circumstances; i.e. the name of the employer, the name of the employee, and the place of employment. Information can be submitted by calling 297-7950/297-7694 or via the Immigration Hotline 296-5202 or the Immigration Online Tips website at https://www.doiapps.gov.bm/immigrationtips/. The Department of Immigration will immediately take action to deal with the offending parties.

Madam President, civil penalties have been introduced to change behaviours. It is hoped that this Statement will provide a clear reminder that foreign nationals cannot work without the Minister’s permission. If employers and employees ignore the processes for obtaining work permits, without question, the process for determining civil penalties will be effected and there is also the possibility that work permits will be and persons directed to settle their affairs and leave Bermuda. We advised that as the new policy became familiar to the users issues like these would arise and appropriate guidance would be given. Over the next few months we will continue to gather comments and input and then give further clarity on forms and in the Work Permit Policy in the collaborative spirit we have previously undertaken. Finally, the processes laid out above will become effective 1st June 2015.

 

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