I INTRODUCTION TO THE IMMIGRATION FRAMEWORK
The Federation of St Christopher (St Kitts) and Nevis gained its independence from Britain in 1983.2 With a total population of 46,000, it is the smallest sovereign country in the Americas.
i Legislation and policy
Migration is governed by the Immigration Act.3 The government’s advice to persons wishing to migrate to St Kitts and Nevis is to visit one of its embassies or missions abroad. These can be found in Washington, DC, New York, Belgium, Taiwan, London, Canada and Jamaica.4 There is now also a consulate established in Dubai.
To be granted the status of resident, the immigrant:
- must be entitled to register as a citizen under the Constitution;
- because of education and other qualifications, will be employed full-time by the government;
- is successfully established in a profession, trade or business; or
- is likely to establish himself or herself in a successful business.5
There are four classes of residents, namely permanent residents, annual residents, temporary residents and work permit holder residents.6 Application must be made to the Minister responsible for immigration in the prescribed form with presentation of the required documents, such as passport, birth certificate and evidence of own assets, and payment of the prescribed fees.7
Permanent residence may be granted to persons who have resided in St Kitts and Nevis for at least seven years and own substantial assets in the Federation, and to persons with sufficient assets who wish to retire in the country. Employers may make application for foreign workers after they have unsuccessfully advertised the position. The work permit recipient must have any required visa and as a matter of policy should also have a return ticket to his or her home country. Some persons, such as children of permanent residents or children of citizens, may be granted annual residence.8 A visa is required by some nations to enter St Kitts and Nevis.9 This may be applied for online or through a local attorney.
ii The immigration authorities
The Immigration Department is established in the Ministry of Foreign Affairs, Homeland Security, Immigration and Labour. This department is under the general policy control of the Minister responsible for national security and consists of a chief immigration officer, a deputy chief immigration officer and a number of other senior and junior immigration officers. The power to appoint, remove or exercise disciplinary control over the immigration officers vests in the Governor General, acting in accordance with recommendations of the Public Service Commission.
No person is allowed to enter St Kitts and Nevis by air or sea except at a port of entry, or to enter without the consent of an immigration officer. Penalties are prescribed for such breaches. The immigration authorities may grant entry in the first instance for periods of up to six months.
iii Exemptions and favoured industries
Some industries, such as light manufacturing industries and tourism, are more favoured than others and benefit from tax and customs duty exemptions. Tourism is regarded as the number-one income generator for the economy and the Saint Christopher Tourism Authority Act, Chapter 20.36 provides for the promotion and development of tourism. The Hotels Aid Act, Chapter 18.17 makes provision for duty-free materials and equipment for hotel construction. As a matter of policy, government has granted tax holidays of up to 25 years to hotels, depending on their size.
In relation to manufacturing industries, investors can make application, through the Minister of International Trade, to the Governor General, to have their product or enterprise approved for incentives.10 These incentives include complete or partial tax holidays of 10 to 15 years, depending on the enterprise, and duty-free concessions on plant and equipment. The government, which owns most of the undeveloped former sugar lands, also encourages the development of agriculture. A government agency, the St Kitts Investment Promotion Agency, has been established to assist potential investors in setting up businesses in the various industries.
II INTERNATIONAL TREATY OBLIGATIONS
The 12 independent countries of the Caribbean Community (CARICOM) and the British overseas territory of Montserrat have established a multilateral exchange of benefits for workers, and free trade of goods, by virtue of the CARICOM Treaty and the CARICOM Single Market and Economy agreement. Skilled workers and professionals who are nationals of CARICOM countries may enter and work in St Kitts and Nevis without a visa or work permit.11
A CARICOM citizen must hold a passport from a qualifying CARICOM country and have a certificate from that country certifying the immigrant as a skilled worker. Entry to the country will be granted initially for a period of six months, followed by an indefinite stay, if all required documents are in order.
III THE YEAR IN REVIEW
There has been very little change in the immigration situation over the past year. However, there is a pending case in the Supreme Court that may see some clarification in the category of students attending the offshore universities in St Kitts and Nevis. Under the Immigration Act students are not residents but merely listed as permitted entrants. Some students of Commonwealth countries such as India and Nigeria have registered to vote and have voted in general elections, which is an activity reserved for nationals and certain residents. The country now awaits the ruling of the Court on this vexed matter, since it is felt that visiting temporary students should not be allowed to determine who is elected to govern the country.
IV EMPLOYER SPONSORSHIP
Employers who need employees with skills that are in short supply are allowed to sponsor foreign employees. Application is made to the Minister responsible for employment. To succeed, the employer is usually required to demonstrate that there is no suitable local employee to fill the post.
i Work permits
A person, other than a citizen, is not entitled to engage in any occupation or accept employment without obtaining a work permit. In addition, a person shall not engage or employ another person who is not a citizen or resident unless there is a valid work permit in force for that person and in relation to the specific employment.
An applicant for a work permit must make the application while the prospective employee is outside the Federation (this requirement does not apply to renewals of work permits). Upon approval, the applicant is required to pay the prescribed fee. The work permit is usually granted for up to one year at a time.
The employer or proposed employer may be required to furnish to the chief immigration officer such security as the Minister may determine sufficient to meet the cost of repatriating the employee and his or her dependants. The work permit will be invalid until any required security is furnished.
An applicant who is refused a work permit may appeal to the High Court under the Rules of Court for a judicial review of the Minister’s decision. There is no appeal if entry to the country is refused by the Minister or an immigration officer acting in accordance with the Immigration Act.12
ii Labour market regulation
The labour market is supervised and monitored by the Department of Labour, which is established by law.13 The Department of Labour is headed by the Labour Commissioner and its duties include the supervision and inspection of workers’ conditions of employment.
There are a number of regulations under various pieces of legislation that make up the framework of employer and employee relations. These include:
- the Holidays with Pay Act (Chapter 18.15);
- the Labour (Minimum Wage) Act (Chapter 18.19);
- the Protection of Employment Act (Chapter 18.27);
- the Protection of Wages Act (Chapter 18.28); and
- the Social Security Act (Chapter 22.10).
By far the most comprehensive piece of legislation is the Protection of Employment Act, which lays out the regulations dealing with such topics as termination of employment, establishment of a severance payment fund to provide for severance payments to employees, payment in lieu of notice, requirements of an employment contract and notification to the Labour Commissioner. These regulations apply to workers generally, whether local or foreign, but do not apply to government employees, who are governed by their own regulations.
iii Rights and duties of sponsored employees
Employees holding work permits are required to work only for the sponsoring employer, in the requested employment. The employee is required to leave the country upon completion of the duties.
V INVESTORS, SKILLED MIGRANTS AND ENTREPRENEURS
St Kitts and Nevis welcomes investors and makes provisions under various laws and institutions for their participation in the economy.14
The Immigration Act provides several categories of persons who can be granted residence that allows them to be employed without a sponsor. These include persons who, because of their education, occupational qualifications, personal history, employment record, training skills or other special qualifications, are likely to establish themselves successfully in a profession, trade business or agricultural enterprise and have sufficient means of support. Residence can also be granted to persons who own substantial assets in the Federation, the sufficiency of which is determined by the Minister responsible for immigration on the advice of the Cabinet.
The economic citizenship programme provides another avenue for unsponsored self-employed people. It is reputed to be the oldest, and is perhaps the best, existing citizenship by investment programme. A foreign national may apply to the Citizenship by Investment Unit, through an authorised local agent, for registration as a citizen in two ways: either by purchasing an approved property and holding it for at least five years; or by making a contribution to the Sugar Industry Diversification Foundation (SIDF).15
The applicant is expected to be of good character, good health and high net worth. The property option requires an investment of at least US$400,000 in an approved project, such as a condominium, hotel or villa, while donations under the SIDF range from US$250,000 for a single applicant to US$450,000 for a family with up to seven dependants. Other dependants may be added for an additional US$50,000 each. On approval, the economic citizen will have all the rights of a natural citizen, except voting, and can therefore engage in all types of business and employment.
VI OUTLOOK AND CONCLUSIONS
The present level of unemployment, partly due to the economic recession, is likely to encourage more liberal incentives for investment projects and particularly projects that could generate substantial employment opportunities.
On the other hand, there is likely to be a contraction in the number of work permits issued, to satisfy the local unemployed population, who see work permit holders as threats to their employment. The people of St Kitts and Nevis, like those of many other countries, hope there are better economic times ahead.
1 Constance V Mitcham is the founder and senior partner at Mitcham & Benjamin and Sam M Bayat is the senior resident lawyer at Bayat Legal Services. The information in this chapter was accurate as of May 2016.
2 Statutory Instrument No. 881 of 1983.
3 Chapter 6.02 of the Laws of St Christopher and Nevis.
4 See the government’s website: www.gov.kn.
5 Immigration Act, Section 5(2).
6 Immigration Act, Section 6(1).
7 Immigration Act, Third Schedule – Immigration Regulations.
8 Immigration Act, Section 6.
9 See list on the Ministry of Foreign Affairs website: www.mofa.gov.kn.
10 Fiscal Incentives Act (Chapter 20.14).
11 Caribbean Community Skilled Nationals Act (Chapter 25.04).
12 Immigration Act, Section 23 (Chapter 6.02).
13 Labour Act (Chapter 18.18).
14 Immigration Act, Fiscal Incentives Act, Hotel Aids Act and Citizenship Act 1984 and Sections 90–95 of the St Christopher and Nevis Constitution of 1983.
15 St Christopher and Nevis Citizenship by Investment Regulations No. 52 of 2011.