This publication has been prepared for the assistance of those who are considering moving to Bermuda and establishing an office on the Island. It deals in broad terms with the requirements of Bermuda law and it is not intended to be exhaustive but merely to provide information which we hope will be of use to our clients. We recommend that our clients seek legal advice in Bermuda on their specific proposals before taking steps to implement them.
Copies of the Bermuda Immigration and Protection Act 1956 and any other legislation referred to herein are available upon request.
References to "$" mean Bermuda dollars which should be considered on par with the United States dollar for the purposes of this publication.
- INTRODUCTION
Bermuda has long been recognised as a robust, sophisticated and secure place to do business. Bermuda is the oldest self-governing British Overseas Territory with a stable infrastructure. It has for many years been at the forefront of international finance and wealth management business. Bermuda's advantageous geographical location makes it an attractive choice for establishing an office and a home.
1.1 Immigration
The Bermuda Immigration and Protection Act 1956, as amended (the "Immigration Act"), governs immigration matters in Bermuda. For those wishing to work in Bermuda, the Immigration Act provides that a non‐Bermudian, who is not married to a Bermudian, requires a work permit to be gainfully employed in Bermuda. There are different types of work permits which are issued by the Department of Immigration1.
The policies applicable to the granting of work permits are substantially the same for local employers and exempted companies, permit companies and exempted partnerships (collectively the "exempted undertakings"). Unless the position to be filled is that of the president, chief executive officer, or other very senior employee, the first step in seeking a work permit is to advertise the position in a box advertisement appearing on three separate dates in a daily newspaper as well as eight consecutive days on the Bermuda Government Job Board. Each advertisement must include the name, address and telephone number of the employing undertaking, a brief description of the position to be filled, the qualifications required of an applicant and notice of the deadline for applications. If no suitably qualified Bermudian, person married to a Bermudian or person who is the holder of a Permanent Resident's Certificate has responded to the advertisement and five business days have elapsed after the last insertion of the advertisement, then an exempted undertaking may apply to the Department of Immigration for a work permit to employ a non‐Bermudian. Where there is a Bermudian applicant, an employer who makes an application to employ a non-Bermudian must give reasons for not employing the Bermudian. The requirement to advertise can usually be waived in the case of exempted undertakings where: (i) the beneficial owner wishes to run the undertaking; (ii) there is proprietary information and the prospective permit holder is an existing employee or has specific expertise required for the job; and (iii) where there is a clear demonstrable benefit to Bermuda and Bermudians.
The application for the work permit must be accompanied by a completed application which supplies personal information on the proposed employee. In addition to the application, three passport photographs, a full size chest x‐ray, a medical certificate, at least two personal character references and previous employment references, notarised copies of any professional qualifications or academic degrees held by the proposed employee, a notarised copy of a current passport, and a certified copy of any valid visas or permanent resident card must also be submitted. A medical certificate and a certified proof of nationality are required for all dependants.
The policy of the Department of Immigration allows sponsored dependants of a work permit holder to reside in Bermuda. Upon application, sponsored dependants may be given permission to reside with the work permit holder and seek employment provided the total remuneration thresholds are met.
Employers may apply for standard work permits of one, two, three, four or five years. Standard work permits are for jobs that are in the open, special or restricted category2.
A periodic work permit may be granted to allow an employee to work in Bermuda from time to time during the period of the permit's validity. Overseas companies can be issued a "blanket" periodic permit, enabling any representative of the overseas company to come and work in Bermuda for a period of 30 days. Extensions can be obtained for a further period of 30 days by submitting a Visitor Extension Application. The periodic work permit holder shall not be in Bermuda for more than a total of 180 days per calendar year. An individual person can also be issued a periodic work permit, and in such cases, that person may stay and work in Bermuda for the period specified in that permit (usually 30 days). Similarly, temporary permits may be granted for the purpose of employing persons for specific jobs for a period not exceeding six months from the date of issue.
A short term work permit may be granted to allow an employee to work in Bermuda for periods of up to six months and an employer can apply for an extension up to a maximum of six months. A short term work permit can be granted for any type of work, outside of the closed categories, but the position must be advertised first, subject to certain exemptions.
An exempted company that is new to Bermuda may apply for a new business work permit which allows the employer to receive automatic approval of work permits, without the need to advertise, for the first six months after obtaining the first new business permit. New business work permits can be issued for one, two, three, four or five years. At the end of the new business work permits, the employer must apply for standard work permits.
One year global entrepreneur work permits (GE Permit) are granted in respect of certain work activities including business planning, seeking appropriate government or regulatory approval(s), meeting compliance, financial requirements or raising capital. They are available to exempted or local companies. A person employed by a global company in another jurisdiction may apply for a global work permit to transfer to the Bermuda office without the need to advertise. Global work permits may be granted for one, two, three, four or five years.
A Fintech company that is new to Bermuda may apply for a Fintech business work permit which allows the company to receive automatic approval of up to five Fintech business work permits for the first six months after obtaining the Fintech business work permit. The requirement to advertise is waived. Fintech business work permits can be issued for one, two, three, four or five years.
If a work permit has been approved, but the employer has not received the work permit for an incoming employee, then a landing permit may be obtained from the Department of Immigration. The original landing permit can be presented to the immigration officer at the airport by the employer when the employee arrives.
An employer of a non‐Bermudian is required by law to repatriate the non‐Bermudian and any dependants residing in Bermuda.
When work permit holders leave Bermuda on business or holiday, they should carry their work permits. This will ensure a smooth passage through Bermuda Immigration on return to the Island.
1.2 Incentives for Job Makers Act
The Incentives for Job Makers Acts modify certain concessions offered to important businesses that are considered critical to the economy of Bermuda. A business may qualify as such if it employs at least 10 persons with Bermudian status, has persons with Bermudian status employed at all levels in the company, subject to the availability of suitably qualified Bermudians, provides entry‐level positions for persons with Bermudian status and has programs in place for developing and promoting persons with Bermudian status.
Senior executive employees of such businesses who are exempted from the work permit provisions of the Bermuda Immigration and Protection Act 1956 may apply for permanent residency after ten years. The Acts also reduce the application fee for such senior executive employees.
In acknowledging that there is not a one size fits all model, the Economic Development Act 1968, as amended, further allows for discretion to provide for smaller companies and newly incorporated companies that may not have as many staff but are still making a tangible and significant contribution to Bermuda. In fact, account can be taken of relevant factors such as:
(a) the size of the company;
(b) the significance of the company to the economy of Bermuda;
(c) the existing or likely economic situation in Bermuda;
(d) the protection of local interests; and
(e) generally, the interests of the community as a whole.
1.3 Employment Contract
The Employment Act 2000, as amended (the "Employment Act"), provides minimum standards of employment, including procedures and notice periods for the termination of employment. Most of the provisions of the Employment Act apply only to 'employees', being a person (a) who is employed wholly or mainly in Bermuda for remuneration under a contract of employment or (b) who performs services wholly or mainly in Bermuda for another person for remuneration on such terms and conditions that their relationship with that person more closely resembles that of an employee than an independent contractor and (c) who works at least 15 hours a week and (d) does not fall into any of the excepted categories, being casual workers, part-time employees, students, temporary workers and voluntary workers (as defined in the Employment Act).
A statement of employment must be provided to employees setting out various required particulars set out in the Employment Act, for example, among other things, a description of the job and the gross wage payable. The statement of employment can be provided as a separate document or the required particulars can be incorporated into a contract of employment. As of 1 June 2021, casual workers, part[1]time employees, students, temporary workers and voluntary workers must also be provided a statement of employment but this requirement does not entitle such persons to any entitlements that they would not otherwise be entitled to under the Employment Act given that they are not "employees".
As of 1 June 2021, the Employment Act also contains obligations relating to having in place a policy statement against bullying and sexual harassment. Such policy must comply with the provision of the Employment Act and, among other steps the employer must take, must be provided to employees on the commencement of their employment.
Non-compliance with the provisions of the Employment Act relating to statements of employment and the policy statement against bullying and sexual harassment can result in civil penalties. It is therefore important to get employment documentation in order.
The Employment Act also covers such matters as benefit and leave entitlements, disciplinary measures and severance pay.
Footnotes
1 Fees relating to work permits are available upon request.
2 They are not allowed for closed category jobs; please contact us for more information about the different job categories.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
