Home Affairs Minister Michael Fahy *Photo supplied
Home Affairs Minister Michael Fahy *Photo supplied

MONDAY, JAN. 21: Government is looking at the possibility of scrapping term limits on work permits as they create a “brain drain” and negatively affect international business.

At a press conference today, Home Affairs Minister Michael Fahy revealed that nearly three-quarters of work permit holders subject to term limits are allowed to stay in Bermuda beyond six years.

But the policy creates uncertainty and when guest workers do leave, they disrupt businesses and there is “no statistical data to demonstrate that every time a guest worker leaves that the guest worker is replaced by a Bermudian… In fact, emigration data for Bermudians and non-Bermudians alike paints an entirely different picture.”

The ”stark reality,” Mr Fahy said, is that “Bermuda is in a global war for talent” and “competition to reinvent and retain top talent remains relevant and fierce”.

Mr Fahy said he has met with stakeholders to discuss term limit plans and to reinforce government’s plan to get Bermudians back to work.

Within days, his ministry will release its Impact Assessment on the Elimination of Term Limits to the work permit stakeholder group for feedback: “We will also seek their views on the policy alternatives, that is, a suspension of the current term-limit policy for two years verses the elimination of the term limit policy entirely.”

Mr Fahy said as far back as 2006, government sought legal opinions on term limits and alternatives. His ministry is in the process of securing an updated legal opinion.

“The initial thinking is that the updated legal opinion will mirror the historical legal opinions. 

“That is, the Term Limit policy is not necessary as a tool to prevent long-term residency claims.

Also, the policy has a significant and detrimental effect on business and is hampering attempts to attract and keep those guest workers vital to our economic success. 

“Requiring guest workers to leave after six years discourages many businesses from coming to Bermuda and also denies companies the opportunity to retain experienced people with specialized local knowledge who have proven to be a good business fit, and who have integrated into the social fabric of the Island, a process that often accrues with longer term guest workers.”

Mr Fahy added: “It is the Government’s view that the term limit policy is reducing the international competiveness of Bermuda as a place to do business, and increasing the cost of doing business by requiring the replacement of qualified and experienced staff that has to leave the Island.”

Mr Fahy told the media that 70 per cent of work permit holders were being permitted to stay beyond the six-year limit. In March 2011, of the 6,817 work permits subject to term limits, most had either been granted extensions or waivers and only 2,037 (or 30 per cent) were subjected to the six-year term limit, Mr Fahy said.  

“But because the term limit policy requires that a guest worker leave after six years, or make application for an extension, a great deal of uncertainty is created that is entirely detrimental to the business environment,” the minster added.

Mr Fahy also said it was important to remember that the term limit policy doesn’t protect Bermudian jobs — it is the work permit policy that does.

“Term limits were not put in place to that a Bermudian would be trained to do the job and take it over at the end of the non-Bermudian’s six-year term limit. Term limits were put in place because it was believed they would prevent the legitimate expectation to residency and in fact, the actual name of the policy is ‘measures to inhibit long-term residency’.

“Term limits was a tool that was to be used to reinforce to guest workers that Bermuda was not their home and that unless at some point they had been given permission to stay longer that they would have to leave at some point.”

Mr Fahy offered an assurance that normal work permit policies and procedures will continue to apply, acknowledging “the legitimate needs and expectations of Bermudians – those who are Bermudian by birth and those who have already become Bermudian by grant… We remain sensitive to their concerns, and we will not take this decision lightly.

“But unless we have a major swelling in birthrates, Bermuda will never supply enough Bermudians to satisfy the job market.”

Government, he said, will incorporate additional 'get tough' reforms “that protect Bermudian jobs and encourage employer compliance with work permit policies”. 

 

 

Good afternoon and thank you for joining me.

Today marks roughly four weeks since we have become Government and I must say as Minister, this has been a tremendously productive period for me.

On Friday, you will have heard the Premier, the Hon. Craig Cannonier outline our focus for your Government, for the Country and for the people.

Premier Cannonier outlined three specific focuses that Ministers must deliver on:

These mandates include:

• Reducing government debt/spending while at the same time establishing new revenue streams;

• Creating jobs; and

• Reducing violent crime.

Each of these areas both directly and indirectly touch on the Ministry of Home Affairs.

As you will be aware over the past four weeks, Government Ministers have been quite busy assessing and reviewing the various aspects of their respective Portfolios.

And today, I’m pleased to share with you some of this Ministry’s plans, particularly as it relates to the Term Limit Policy. Now before I delve into it - I recognise that the mere mention of the words Term Limits and Work Permits tends to send people from all sectors of our community into a frenzied debate.

And that’s why as Minister one of my key objectives was to meet with as many stakeholder groups as possible to layout our plans and discuss the issue of term limits, while at the same token, taking the time to reinforce our commitment to getting Bermudians back to work and ensuring fair employment practices as it relates to the Bermudian workers.

Creating and safe-guarding jobs are paramount for this Government and this is the rationale for the policy consideration that will ultimately see the Term Limit Policy altered.

First, let’s debunk some of the myths that seem to be swirling around regarding term limits:

• Term limits DO NOT create Bermudian jobs; and DO NOT protect Bermudian jobs;

• Term limits were not put in place so that a Bermudian would be trained to do the job and take it over at the end of the non-Bermudian’s 6-year term limit;

• Term limits were put in place because it was believed they would prevent the legitimate expectation to residency. And in fact the actual name of the Policy is “Measures to Inhibit Long-Term Residency”; AND

• Term limits was a tool that was to be used to reinforce to guest workers that Bermuda was NOT their home and that unless they had been given permission to stay longer that they would have to leave at some point.

So, to be clear, it is not the term limit policy that protects Bermudian jobs; it is the work permit policy that protects Bermudian jobs. 

When a work permit expires the job must be advertised. 

If a qualified Bermudian applies for the job, the qualified Bermudian must be considered.

All the term limit policy is intended to do is to remind the non-Bermudian worker that they must leave at some point.

In fact, the data suggest that in March 2011, of the 6,817 work permits subject to term limits: 2,394 (35%) had been granted waivers, 2,386 (35%) had been granted extensions; and only 2037 (30%) were subject to the term limit of 6 years. This means that 70% of all of the work permit holders were being permitted to stay beyond the six years.

But because the term limit policy requires that a guest worker leave after six years, or make application for an extension, a great deal of uncertainty is created that is entirely detrimental to the business environment. 

You will be aware that Government has proposed to suspend the current term-limit policy for two years and institute reasonable guidelines that protect Bermudian jobs while encouraging new job creation.

I think it’s important to note that previous Ministers had sought legal opinions regarding the feasibility of term limits as well as alternatives to term limits. 

In fact, as far back as 2006, it was known by the then Government that the policy had absolutely no legal effect.

However today I can confirm that the Ministry is in the process of securing an updated legal opinion to determine the relevance of those secured in previous years, given the changing government.

The initial thinking is that the updated legal opinion will mirror the historical legal opinions. 

That is, the Term Limit policy is not necessary as a tool to prevent long term residency claims.

Also, the policy has a significant and detrimental effect on business and is hampering attempts to attract and keep those guest workers vital to our economic success. 

Requiring guest workers to leave after six years discourages many businesses from coming to Bermuda and also denies companies the opportunity to retain experienced people with specialized local knowledge who have proven to be a good business fit, and who have integrated into the social fabric of the Island, a process that often accrues with longer term guest workers.

The data suggest that Bermuda is experiencing a “Brain Drain”, yet, there is no statistical data to demonstrate that every time a guest worker leaves that the guest worker is replaced by a Bermudian.

In fact, emigration data for Bermudians and non-Bermudians alike paints an entirely different picture.

Furthermore, it is the Government’s view that the term limit policy is reducing the international competiveness of Bermuda as a place to do business, and increasing the cost of doing business by requiring the replacement of qualified and experienced staff that has to leave the Island.

Therefore, within the next day or two, the Ministry will release its Impact Assessment on the Elimination of Term Limits to the Work Permit stakeholder group in a bid to seek their views on the policy recommendations contained in the document. 

We will also seek their views on the policy alternatives, that is, a suspension of the current term-limit policy for two years verses the elimination of the term limit policy entirely.

These views will assist with policy refinement and the decision-making process.

To be clear, as the Government contemplates the final term-limit policy decision, it is important to note that the Ministry has been working very closely with the Work Permit Policy Stakeholder group to finalize work permit policy amendments that were commenced under the former government. 

In this regard the government will incorporate additional “get tough” reforms that protect Bermudian jobs and encourage employer compliance with work permit policies.

Finally, this Government recognises that today’s announcement will likely fuel the current debate regarding term limits and work permits – and in a healthy democracy such as ours, we welcome those discussions.

But I want to assure the people of this Country that we remain sensitive to their concerns, and we will not take this decision lightly.

Government is ever mindful of the legitimate needs and expectations of Bermudians – those who are Bermudian by birth and those who have already become Bermudian by grant.

But unless we have a major swelling in birthrates, Bermuda will never supply enough Bermudians to satisfy the job market. 

In order for Bermuda’s economy to thrive, there will be a need for guest workers into the foreseeable future.

To allay any concerns, the public and our stakeholders can be assured that the normal work permit policies and procedures will continue to apply. 

The employer will continue to be required to advertise the position and hire qualified Bermudians where identified.

And no matter what direction we ultimately decide to move in – that is, suspension of the current term-limit policy for two years verses the elimination of the term limit policy entirely - work permit holders will be required to sign a declaration confirming their understanding that the work permit holder understands that Bermuda law does not confer rights of permanent residence and that the holder has no expectation of such residence.

Therefore the issue of legitimate expectation to residency will adequately addressed.

It is imperative that we look at the wider picture – and the stark reality is that Bermuda is in a global war for talent.

Even as jurisdictions are facing recession, downsizing and layoffs, competition to reinvent and retain top talent remains relevant and fierce.

Bermuda’s preparation for long-term prosperity remains essential.

And in that vein, this Ministry will continue to focus on development strategies to prepare our next generation of Bermudian workers with the necessary skills and education to take advantage of an increasing sophisticated job market.

We see this policy shift as part of our overall plan which seeks to strengthen and rebuild our economy and getting us back onto the path of prosperity – for all.

Thank you.