I have previously written in this column about the impact of Government's term limit policy on employers and employees and how, over the last six plus years, steps should have been taken by employers to ease or eliminate work permit problems that lay ahead.

Introduced in April 2001, the policy imposed a maximum stay in Bermuda for work permit holders of six years. At that time any permit holder who had already been in Bermuda for six years or more did not have that previous time counted against them. Consequently, new permit holders and those existing at April 1, 2001 could stay in Bermuda for a maximum of six years thereafter. The effect of the term limit would be felt first on April 1, 2007.

However, this date was somewhat extended because of delays and heavy workloads at the Department of Immigration. Short extensions of up to a year were permitted in certain circumstances; this was known as the 'transition' period, which is now over.

Where an employer can justify that the permit holder is 'key' to the business the employer may apply for an exemption or waiver to the six-year limit. However, being considered 'key' by an employer, and being designated and approved as 'key' by Government are two very different things.

The anxiety and uncertainty created among permit holders by the term limit policy can be overcome if there is a proper understanding of the term limit policy at the beginning of the employment relationship and a review of the immigration status at regular intervals, perhaps at the time of annual appraisals.

Employers also feel anxious because they not only face losing a significant employee, the loss will also disrupt the employer's business, affect training, personal contacts, expertise and continuity. Planning for the future should not only include the promotion and expansion of the business but also succession planning at an early stage. If possible, a Bermudian should be trained and placed in the position of the departing permit holder.

There are some popular misconceptions, including a belief that a permit holder who has reached or exceeded the six-year limit will be told by Immigration that it is time to leave. Or, because the permit holder's position/profession is in a category listed in Appendix C to the policymaking the person eligible for a waiver of term limits, the permit holder/employer does not have to apply for an extension or exemption.

However, Immigration does not send reminders for the permit holder to leave at the end of six years. If the permit holder is on his/her final permit (six years) then, unless extended or exempted, the permit holder must not work beyond the last date on the work permit. The permit holder should also leave Bermuda. However, it is possible for a permit holder to gain a limited additional time to close up their affairs and ship out – but the permit holder must apply for this directly.

Ultimately if a permit holder does not leave as directed, the next involvement with the Immigration Department will be the enforcement of the permit holder's exit from Bermuda.

Employers must write to Immigration to request any extension beyond the six-year term limit, or for an exemption from the policy, in respect of a particular permit holder. No permit holder should consider themselves extended, exempt or immune from term limit policy unless and until they have a specific sanction to this effect from the Minister of Immigration. The designation of 'key' is personal to the employer, not the employee, although the employee benefits from this designation by an extended ability to remain in Bermuda.

If a permit holder is designated and approved 'key' with their employer, the 'key' status will not follow the employee should he/she wish to change employers. If the permit holder has already exceeded six years working and residing in Bermuda there is no guarantee that the permit holder will be approved for any new position. The employer will have to make a detailed case to the Minister if the new employment is to be approved and may have a stronger case if the employee falls into the categories set out in Appendix C.

Being designated as exempt from term limits does not mean that the permit holder is exempt from advertising requirements. Work permits will be issued for periods of one to five years in accordance with the broader Immigration policy and will require the position to be advertised ahead of any renewal (unless waiver from advertising is obtained).

It is not good enough for an employer to apply for an extension or exemption at the time of the last renewal, or as an afterthought when the six years is about to expire. Such applications, however meritorious, will be refused. A proper understanding of the term limit policies and appropriate planning by employers should relieve the stress and anxiety in the work permit process.

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.