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TURKS & CAICOS SUN
APRIL 7TH, 2018 – APRIL 14TH, 2018
LOCAL NEWS
LABOUR CLEARANCE ISSUE CLARIFIED BY CHIEF JUSTICE
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“In order to refuse labour clearance, the Commissioner would have to be satisfied that a suitably qualified Belonger who meets the employer’s requirements had applied for the post and been rejected for no good reason. If there have been no applicants for the position, then so long as the position has been properly advertised, the requirement for Belonger preference is met and Labour Clearance should be awarded. In this case, there weren’t any applicants for the post and there was no one in the Employment Department’s database who could be referred to the employer. I would also note what should be obvious, which is that the fact that ‘”entertainers in the production business had called our office from time to time regarding the availability of work in the production business ’ is not a ground for refusing an application for labour clearance to work as a technician.” Sampath, a Trinidad national who had been living in the Turks and Caicos Islands for over 10 years, held nine consecutive work permits, the first being issued in 2004. He was originally employed as a technician to make repairs to electronic equipment, photocopiers and fax machines on a work permit granted on the application of A1 Business & Electronics. The final permit issued to that employer was granted on the 24 February 2008. In January 2009, Deluxe Business Center made an application to employ Mr. Sampath in the position of technician. That company was licensed to carry- on business in computer sales and service. He remained in the employment of Deluxe Business Centre on work permit until February 2012. Mr. Sampath’s 2012 work permit was endorsed by the Immigration Board as “FINAL”. The Board’s decision was challenged on appeal to the Immigration Appeal Tribunal which upheld the decision on 27 July 2013. The Tribunal’s decision was not challenged. The Applicant subsequently applied for a self-employed work permit as a Director of Sphinx Entertainment Company Ltd. (“Sphinx”) but his application was refused by the Immigration Board. He divested himself of his shareholding in the Company which then submitted a new application for a work permit in June 2014 which was first submitted to the Labour Commissioner for grant of labour clearance. By letter dated 30 September 2014, Sphinx was advised that labour clearance had been denied. The letter, written by one Alpheus Smith, a Labour Inspector, set out the reasons for refusing Mr. Sampath’s of labour clearance as follows: “We are not satisfied that: the application is in accordance with the Regulations: the requirements for Advertising have been met: the requirements for Belonger Preference have been met. ’ The writer went on to demand “proof of worker’s legal Immigration status” and stated, in parentheses, that “”this gentleman refuse to comply with the law. He is working illegally
for a few years now. ” the requirement for medical certificates Mr. Sampath sought judicial and police records “of within 6 months”. review of that decision on the ground Absent any advice to applicants that that it had been unlawfully delegated the advertisements had to be placed to a Labour Inspector by the Labour within a particular timeframe the Commissioner. Mr. George Missick, decision to refuse Labour Clearance who appeared on Mr. Sampath’s on the ground that the advertisements behalf, submits further that even if the were not recent was unreasonable. I decision had been properly delegated, conclude then, that the decision of the decision should be set aside as the the Labour Inspector (Smith) which Labour Inspector was influenced by the Labour Commissioner endorsed his belief that the Applicant had been is unlawful for the foregoing reasons working illegally and had thus taken and say that Applicant is entitled to irrelevant matters into account. the order he seeks quashing the said The Chief Justice said that decision and remitting his application despite what amounts to an admission for labour clearance to the Labour by the Labour Inspector that he had no Commissioner for reconsideration,” proof that Mr. Sampath was working Ramsay-Hale continued. as an entertainer, she is “driven to conclude” that, in recommending NO RIGHT OF RESIDENCE that Mr. Sampath’s application be refused, he (Smith) was acting on his The Chief Justice also stated suspicions that Mr. Sampath had been that although Mr. Sampath has lived working outside the terms of his work here while working on permit, he has permit as an entertainer with Deluxe no right of residence in the Turks and Entertainment while employed as a Caicos Islands. technician by Deluxe Business Center “Ownership of property here and was continuing to work as an does not confer that right nor does entertainer at Fish Fry and at Beaches having a child who has the right to without a permit.” reside in the Turks and Caicos Islands. “Whether Mr. Sampath He is not married to his child’s mother was working illegal or was on island and the laws of the Turks and Caicos when he made his application for a Islands do not recognise common-law work permit or had committed other unions. Even if they did, “the state breaches of the Immigration Ordinance owes no duty generally to give effect are matters for the Immigration Board to a couple choice of place of residence when considering Mr. Sampath’s and it will be very much up to the application for a work permit and not a state to strike the balance between matter to be considered by the Labour the requirements of immigration Commissioner whose remit is limited control and the immigrant’s freedom by the Regulations to determining if to choose how and where he will enjoy the requirement for advertising and his Article 8 rights.” Belonger preference has been met,” The Chief Justice continued: the Chief Justice added. “He has not been deported. The There is nothing novel in decision taken by of the Immigration Mr. Smith’s observation that if there authorities, to limit his entry to the are Belongers who can do what Mr. Turks and Caicos Islands to 7 days at Sampath is doing they should be given a time, does not compel him and his the preference,’ but notably absent common-law wife to live apart nor from his affidavit is any evidence that does it prevent him having a family the Department had in its database life with his daughter who has, it any Belonger possessing the requisite appears, a Trinidadian passport. technical qualifications to repair and The Immigration official, who dealt maintain equipment who was actively with Mr. Sampath when he arrived seeking employment as a Technician on island on 8 December 2014, when or, indeed, any Belonger entertainer asked by the Applicant for more time was seeking employment in that field. as he wished to spend Christmas with She said the then Labour his daughter and his wife, responded Commissioner (Michelle Gardiner) that if he wanted to spend Christmas echoes the Inspector’s evidence with his daughter he could take her asserting that,”. ... my Department with him to Trinidad and Tobago. I would have been aware that other consider that the officer reasonably Turks and Caicos Islander entertainers concluded that Mr. Sampath’s wife in the production business had and daughter were free to join him called our office from time to time in Trinidad and that the decision to regarding the availability of work in limit his entry did not infringe Mr. the production business. It is for this Sampath’s right to respect for his reason that the Labour Clearance was family life. refused on August 1, 2014.” She said that in her judgment, The Chief Justice said that the Sampath was not entitled to the Labour Inspector (Smith) made “the declaration that he sought, as the further incomprehensible claim” that Director of Immigration’s decision Mr. Sampath’s application for labour to restrict his leave to enter to seven clearance was refused because the days, did not interfere with his human position for which Mr. Sampath rights. was seeking a work permit was not advertised. This is contrary to the SEVEN-DAY RESTRICTION evidence of the Labour Commissioner UNLAWFUL who says it was refused because “there was no proof of recent advertisements. ’ The Chief Justice added that She noted that the circular distributed whether a person seeking to enter is by the Department for the guidance a bona fide visitor or is intending to of applicants for labour clearance compete in the local job market is a makes no stipulation as to time for matter for an Immigration officer to advertising the post. consider when deciding whether to give “The only reference to time is him leave to enter as is the question of
whether the person seeking entry is a property owner who wishes to visit for a long vacation or has strong family ties to the Islands. “As it does not appear from the evidence that Mr. (Anthony) Swann, in deciding that Mr. Sampath should be given leave to enter for 7 days only on any occasion, gave any consideration to any other matter that might explain the frequency of Mr. Sampath’s visits here, save the allegations that Mr. Sampath was engaging in employment without being licensed to do so, the decision to restrict his entry to 7 days on any occasion was unlawful,” she ruled. “On Mr. Swann’s evidence, he formed this view because of the frequency of Mr. Sampath’s visits to the Islands. According to Mr. Sampath, however, the suspicion did not arise from the frequency of his visits so much as from unfounded - or perhaps, better said, unverified - complaints that had been made to immigration officials by one Frankie Grant about his working as an entertainer. In his application for extension of time, Mr. Sampath gave as his reason for the frequency of his visits his desire to spend time with his family.’ I infer from the evidence that the immigration Department was aware that his partner of the last 10 years and his daughter live in these Islands and that he owned property here yet it does not appear from Mr. Swann’s affidavit that any consideration was given to those matters when the decision was made to restrict his entry to 7 days on any occasion that he landed in the Island,” she wrote. “His family ties and property ownership provided other - lawful reasons for the frequency of his visits to the Islands and were relevant matters which Mr. Swann ought to have taken into account in exercising his discretion to grant Mr. Sampath leave to enter. That it was a necessary consideration is clear given the policy shift signaled by the amendment to the Immigration Ordinance which increased the period for which visitors could be given leave to enter for 90 days. In a press clipping exhibited by the Applicant, the policy shift was explained by the permanent secretary, Clara Gardiner, in the following terms attributed to her therein: ““As we look to bring on economic recovery, ii s key that we make it clear that TCI welcomes genuine visitors to the islands. Our new 90 day policy is intended to reflect that, “ she said. “ Take for example a retired couple from abroad who own property in the TCI and wish to visit for a long vacation or the investor supervising the setting up a new business. There’s no reason we should be making them hurry home or seek multiple extensions. ” Gardiner said such visitors are not competing in the local Job market, nor do they place a burden on public services. “But they do contribute significantly to the local economy and give generously to local charities and community events. People like this should be welcomed to these shores, TCI should be encouraging them to pan for an extended hassle-free stay.”