The effect of Government's introduction of six-year time limits for work permit holders continues to unfold.

The Department of Labour & Immigration policy "Measures to Inhibit Long Term Residency", which was introduced in March 2001, took effect on 1st April 2007.

Under the term limits policy, work permit holders who have clocked up six years or more working in Bermuda are not entitled to a renewal of their work permit.

There have been many applications to the Department of Immigration for a waiver or extension of the term limits for key personnel within an organisation. Many companies have already received notification regarding whether they have been successful in securing a waiver or extension, but many still have yet to hear.

The Department of Immigration, in the main, have either:

■ Denied the application for key status and affirmed the six-year term limit requiring the work permit holder to leave Bermuda at the expiry of the six-year term, granting short extensions of time in view of the delay in notifying employers of the decision; or

■ Granted an extension of the six-year term limit of between one and three years for particular work permit holders, after which the work permit holder must leave Bermuda.

The waiver (and confirmation of key person status) affords the permit holder an exemption from the term limit of six years. This means that the individual is not subject to term limits and can remain in Bermuda beyond the original six years (or nine years for those granted an extension).

Even where individuals have been granted either a waiver or an extension, an employer must continue to advertise the work permit holder's position on the renewal of subsequent work permits. The usual rules apply ¿ if there is a qualified and able Bermudian for the position advertised, then the work permit holder will not be granted a renewal.

The Department of Immigration is also notifying employers who have made application of those employees who are eligible to apply for a Permanent Residence Certificate (PRC) or Bermudian status provided that the work permit holder makes application for such PRC or status before 1st August 2010. The work permit holder must have arrived in Bermuda before 1st August 1989 to qualify.

If the work permit holder who arrived in Bermuda before 1st August 1989 is married or subsequently becomes married, then the spouse (being a work permit holder) will normally be eligible for a waiver from term limits as long as they remain married and living together as husband and wife.

There are other conditional extensions or waivers that may also be granted where, for example, a dependent of a primary work permit holder who has been granted a waiver shall also be granted a waiver from term limits. Similarly, a conditional waiver will be granted where a work permit holder is married to a PRC holder, provided that they remain living together as husband and wife.

Generally, if the conditions are breached, e.g. there is a separation, the six-year term limit will apply.

The applications for key status, waivers and extensions are not confined to the 1st April 2007 deadline. The process continues for as long as the work permit term limit policy continues. Every employer of a work permit holder will need to assess, prior to the renewal, whether or not the work permit holder falls into a category of key person in the organisation and whether or not the employer should apply for a waiver or an extension of the term limit policy.

Where there is a severe shortage both in Bermuda and worldwide of people to fill certain occupations it is likely that the work permit holder in those occupations will be designated key and will receive a waiver or extension of the work permit term limits.

An employer must satisfy the Minister of Labour & Immigration that it is a good corporate citizen. Such an application will require the employer to demonstrate that it is:

■ Actively attracting, recruiting and training Bermudians;

■ Reporting on training opportunities provided by the employer for Bermudians;

■ Producing clear and correct advertisements; and

■ Free of any legal conviction or adverse administrative ruling or final adjudication against the organisation in respect of poor employment/industrial relations practices or human rights violations.

The Minister will expect to see business plans, involvement in attaining high standards within the organisation and within society in Bermuda, and contributions towards the training and general development of Bermudians to join the workforce in a meaningful way.

The employer must also explain why a particular work permit holder should be designated key. The policy provides an exhaustive list of those attributes that the Minister will expect to see if a waiver/extension is to be granted.

Attorney E. Kelvin Hastings-Smith, FCIArb, is Counsel and Manager of the Litigation Practice Group at Appleby. A copy of Mr. Hastings-Smith's column can be obtained on the Appleby website at www.applebyglobal.com.

This column should not be used as a substitute for professional legal advice. Before proceeding with any matters discussed here, persons are advised to consult with a lawyer.