The importance of understanding your Work Visa conditions

If you hold a Work Visa, it is very important to make sure you work in line with the conditions on your Visa. Some types of Work Visa are “open” ie. they allow the holder to work for any employer (for example, a Work Visa based on Partnership). However, Essential Skills Work Visas typically have conditions that the holder must work for a specific employer, in a specific role, in a specific location and be paid at least a specified amount per hour.

The consequences of breaching Work Visa conditions can be dire. It left too long, it can result in the issue of a deportation liability notice under s 157 Immigration Act 2009.


We recently assisted a client who held an Essential Skills Work Visa and had been working in breach of the conditions, by working for a different employer and in a different location than specified. Our advice was;

  1. He had to immediately stop working at the new job, even though this meant he could not work at all for a period of time until a new Essential Skills Work Visa with conditions relating to that job was granted. Stopping work was necessary to show that our applicant and his employer was willing to comply with immigration law going forward;
  2. Prepare and file a new Essential Skills Work Visa application for the correct conditions and with all standard requirements met, including advertising the role to New Zealand citizens and residents.

The Work Visa application was eventually approved, but the need to prepare and file a new application was quite an undertaking and a nerve-wracking experience for both our applicant and his employer. We had to do quite a bit of work explaining why the Work Visa conditions had been breached, apologising and promising it would not happen again. Fortunately, INZ accepted our explanation and apology – but this might not be the case in all situations.

If we had been able to assist our applicant before he started working in the new job, our applicant may not have found himself in such a difficult situation. The subsequent period of uncertainty and financial hardship which he endured, through not being able to work while waiting for the outcome of the new application, could have been avoided. This demonstrates the advantage and value of receiving high quality immigration advice. It appears our applicant had got himself into difficulty by relying on faulty information received from social media platforms regarding what he could and could not do with the conditions on his Work Visa.


An Essential Skills Work Visa with conditions to work for a specific employer, in a specific role, in a specific location can be successfully varied if the holder wants to switch to to a different employer in the same location, provided the type of job remains the same.

  • generally speaking a “specific role” or “type of job” is the same if the same ANZSCO match applies
  • INZ usually considers “same location” based on region, for example, Auckland, Waikato, Bay of Plenty

If conditions are varied, the expiry date of the the Visa will remain the same – the varied Visa is not a new Visa – but if the conditions can be varied then this will save significant time involved in preparing and filing a new application, in particular the requirement to advertise to New Zealand citizens and residents. Varying conditions is not a difficult process, but it is important to understand when it is possible, ie. what conditions can and cannot be varied.

If the type of job or location of work associated with an Essential Skills Work Visa is changing, a new Work Visa application is required.


If an employer hires someone to work in breach of their Work Visa conditions, the employer runs the risk of INZ saying that they have not been compliant with immigration law. This could affect the employer’s ability to hire migrant workers in the future. It can also be an offence under s 350 Immigration Act 2009, attracting a fine of up to $10,000 if successfully prosecuted. If the employer knows the employees cannot legally work for them and allows them to continue to do so, the fine can be up to $50,000. These fines are not insignificant.

If a company has been sufficiently careless about whether their people have the right visa for the job, or the work conditions violate employment law, then they can be blacklisted for a minimum of 6 months, during which they may not support visas for any migrant workers. Employers labelled in this way are named and shamed on a public list.

Our recommendation is that employers use the VisaView tool on the INZ website, available here, to check if a potential employee can legally work for them. This is a simple step to ensuring the employer and their worker do not run in trouble.


If you are an employer or employee and are unsure about what the conditions on Work Visas allow you to do and not do, it is prudent to seek professional advice. The Lawyers at Laurent Law can help. Visit our website, and make an online consultation booking. We look forward to speaking with you.

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Visa Exclusion Issues

James Turner talks about Exclusion Issues in his latest Video Blog. An Exclusion is a situation in which a person is excluded from New Zealand. This means the person is not eligible to be granted a visa or entry permission to be in New Zealand. This exclusion can be very serious. A request for a Special Direction is the only way an excluded person can get permission to enter New Zealand.

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Insights into the 2021 Resident Visa

After announcing a sweeping “one time” Resident Visa for people on Work Visas at the end of September 2021, Immigration New Zealand has now published the detailed policy. This contains some interesting features, but not all the answers.

Aims of the Policy

The 2021 Resident Visa Instructions are said to have the following Objectives:

a. Certainty for employers that they can keep their existing workers;
b. Retaining migrant workers by offering Residence;
c. Attracting workers in health or highly-skilled jobs who have come in on Critical Purpose Visas as a border exception.

This is not just descriptive stuff. When necessary, we will lean on the Objectives of a visa policy to argue that a case should be approved.

How You Qualify

Sahar Shamia of our office wrote a summary a couple of weeks back describing what we knew then, and this is still a good reference point for an overview. The key date in all this is 29 September 2021. There are 2 steps to be able to apply.

A. Eligible Visa: You must first hold one of a list of certain Work Visa types. Most of them are job-based, although open Post-Study Work Visas are included. You must have been in New Zealand on 29 September – there is no negotiation on that one. Yon must be on the eligible visa on 29 September, or have applied by that date and have it granted later. The one exception is that applicants who were in Australia on 29 September and departed NZ for Australia between 6 April 2021 and 23 July 2021 can apply.

I have left out the other ways to qualify, for those on “section 61” Work Visas and Critical Purpose Visitor Visas, so as to focus on the main points of the policy. Talk to us directly if you want to find out more about your own situation.

B. Settled/Skilled/Scarce: Next, you must also meet one of the following categories:

Settled: You have been in New Zealand since 29 September 2018 (3 years before the key date), and have been here for at least 821 days during those 3 years.


Skilled: You are being paid at least $27 per hour wages on 29 September, or you applied by that date for a visa based on a job paying that wage, and it is granted later.

A practical feature of the rules is that, if your pay was at $27 per hour but was cut because of COVID-19 disruptions to your employment, you can still qualify so long as you can show that it was a temporary reduction and it is later restored, or will be restored.


Scarce: Your job is on a list of occupations where there is a shortage, like the Long Terms Skill Shortage List (LTSSL). All the jobs that qualify for this are now on a separate list called Appendix 11. Part of this list includes Primary Sector Jobs which includes bakers, various farm workers (not just farmers), cooks, food factory workers, fruit pickers and vineyard workers, and many more. The door to Residence has now been opened to many people who could never have considered Residence before. The Primary Sector list, and the set of Personal Care workers on Appendix 11 as well, is recognition at last of just how important these jobs are, and the migrant workers who are doing them.

Unlike the old system for jobs on the LTSSL, you no longer need to prove that you have certain qualifications or experience to make it onto the Scarce list. You just need to show that you are doing that job. There is a risk that Immigration could start digging to find out whether you are actually doing the job that your Employment Agreement says you are doing, but INZ management keeps saying that the processing of these cases is meant to be quick and simple. Let’s see how that plays out.

A Few Possible Traps

Applying for an Eligible Work Visa: A useful feature of the policy is that, on 29 September, you might have been on a Work Visa (WV) but you did not meet any of the Settled/Skilled/Scarce rules. However, so long as you had applied by that date for a visa that does meet the Skilled or Scarce criteria, you can still go on to Residence if the application is approved.

What happens, though, if your WV application is still not decided when you apply for the 2021 Resident Visa? Will it be declined immediately, or will it be deferred until the final outcome is known? If your WV application is declined but you have a right of reconsideration, would your Residence case be left open until that is decided? The Instructions don’t answer those questions, and only says that you can apply for Residence if the WV application is “subsequently granted”.

My take on this is that you need to wait until the WV is approved, and only then apply for the 2021 Resident Visa. This means that you will fall further down the queue of applicants, and your Residence case would take longer to be decided, but at least it would save you the time and money of having the first application declined.

Rate of Pay: Some jobs are on an annual or monthly salary, and the number of hours worked can vary from week to week as allowed for in the Employment Agreement. In order to work out the per-hour pay rate, Immigration will ask for evidence of the number of hours worked over a range of weeks or months. The maximum weekly hours worked in that range becomes the number of hours worked per week across the board. Immigration has applied this standard for some time to job-based visa applications where the rate of pay is important.

So if you are on an annual salary for 40-hour weeks at, say, $65K per year ($31.25 an hour), but you have to work 55 hours on a couple of weeks during the year, INZ will treat you as working 55-hour weeks the whole time. This drops your per-hour rate to $22.72. You would then be disqualified from being recognised for the Skilled category, and your application could be declined outright. If your job has these sorts of conditions, you may already be disqualified from applying for the 2021 Resident Visa, because Immigration looks at what your hours of work would have been on 29 September 2021. Trying to change your work conditions now to make you compliant will not help you.

3 Times to Qualify: In order to get Residence approved, an applicant must show that they meet the rules at all of the following stages:

a. On 29 September 2021 – unless they have applied for a qualifying visa on that date and it is later approved;

b. On the date that they apply for Residence – from 1 December 2021 for those who have a Skilled Migrant Residence application or Expression of Interest underway, from 1 March 2022 for everyone else; and

c. On the date the application is assessed. In most types of visa applications, it is not enough to meet the rules on the day you apply – you must still do so when the application is decided. For example, if you relied on being Skilled (by being paid $27 an hour) when you applied, but you change to a job which pays less than that before the application is decided, your case will be declined.

This will be quite a challenge for some people – to remain eligible right from 29 September 2021 until their application is approved, which might be late in 2022 or beyond. Companies affected by COVID-19 lockdowns may have to lay off staff. Economic conditions could change a lot in the next year. People will need to decide whether to hang in there for quite a long time, even if they want to leave the job that they are in. In some cases that is not a healthy situation, and an unscrupulous employer could take advantage of a migrant’s dependency on staying with the company at all costs.

Changing Jobs: This relates to the previous point. For example, if you claim to be in a Skilled job as at 29 September 2021, but by the time you apply for Residence you are in another Skilled job, you need to supply evidence of both jobs in order to cover the bases. They may be the same occupation (such as a Carpenter), or two different roles, but in both cases you need to show that you were being paid at $27 per hour in each case.

Failing to have that evidence ready at the time you apply for Residence could, at best, slow down processing. At worst, if you can’t supply evidence of the old job by the time you apply, the application could well be declined.


The 2021 Resident Visa policy looks straightforward on the surface, and Immigration keeps saying that it is meant to be simple. Our experience over many years is that things can get complicated when you apply the rules to particular cases; and it can be made worse by the way visa officers interpret the Instructions.

Even if you already think you qualify, contact us in order to get an objective assessment. We are also open for business to manage the Residence process. If you want to keep up to date about how to make a successful application, email to ask to be put on our special 2021 Resident Visa newsletter.

Posted in 2021 Resident Visa, Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas, residence | Tagged , , , , , | 2 Comments

New one-off 2021 Resident Visa – will you qualify?

On 30 September 2021, the Government announced a new one-off residence visa pathway for some temporary work visa holders currently in New Zealand. It is estimated that nearly 165,000 migrants in New Zealand will be eligible under this new Resident Visa category.

The new 2021 Resident Visa category provides a one-off simplified residency pathway to temporary work visa holders in New Zealand. The COVID-19 outbreak and the border closures created difficulties and uncertainty for migrant workers in New Zealand. For instance, the Government’s decision in March 2020 to postpone selections for Expressions of Interest (EOI) for the Skilled Migrant Category (SMC) left many temporary work visa holders with no pathway to Residence. Other migrant workers have had SMC applications pending with Immigration NZ for more than two years, which I discussed in my earlier blog.

The fast-tracked one-off 2021 Resident Visa category is aimed to provide migrants who have been working in New Zealand over the last few years with some certainty. It might not be as simple as it appears, as some rules and criteria need to be met before issuing the visa. The Government will announce the specific criteria, and the application process once finalised at the end of October 2021. I will outline the eligibility criteria below under this new category based on what the Government announced on 30 September 2021. 

Who is eligible under the new 2021 Resident Visa?

One of the great benefits of this new Resident Visa category is that there are no points system, age or English language requirements in order to qualify. These exist under the Skilled Migrant Category, which prevented many people from applying.

Here is what we know so far. To be eligible under this new 2021 Resident Visa category, you will need to:

  1. have been in New Zealand on 29 September 2021, and
  2. be on an eligible visa, or have applied for an eligible visa on or before 29 September 2021 that is later granted.

The “eligible visas” are listed here, and include:

  • Post Study Work Visa
  • Talent (Accredited Employer) Work Visa
  • Essential Skills Work Visa
  • Long Term Skill Shortage List Work Visa
  • Some Critical Purpose Visitor Visas (CPVV) including those who were granted visas for more than 6 months.

One interesting addition is those who are on Work Visas granted under Section 61 (a visa granted to an overstayer). The person must have held another eligible visa type within 6 months before being granted a Section 61 visa.

You will also need to meet one of the following criteria:

1. Settled in New Zealand

To be eligible under this criteria, you must have lived in New Zealand for the past three or more years and

  • have arrived in New Zealand on or before 29 September 2018, and
  • have spent a minimum of 821 days in New Zealand between 29 September 2018 and 29 September 2021 (inclusive).

If you hold a Post Study Work Visa and you are not currently working, you will still be considered eligible if you meet the settled criteria.


2. Earning at or above the median wage ($27 per hour)

To be eligible under this criteria, you must be paid the median wage of $27 per hour or above on 29 September 2021. You will need to be working full-time (at least 30 hours per week). The employment must be genuine and credible.


3. Working in a job on a scarce list

To be eligible under this criteria, on 29 September 2021, you must work in a job that is on a scarce list. These are:

You will need to be working in one of the roles listed above on 29 September 2021 and when you make the application.

The application process

The 2021 Resident visa will be open for applications in two phases.

Phase one – 1 December 2021:

You can apply under phase from 1 December 2021 if you have already applied for residence under the Skilled Migrant and Residence from Work categories before 29 September 2021, or you have submitted a Skilled Migrant Category Expression of Interest and have included your dependent child in the Expression of Interest aged 17 years or older on 29 September 2021.

Phase two – 1 March 2022:

All other eligible applicants can apply from 1 March 2022, including those who have submitted a Skilled Migrant Category Expression of Interest.

Immigration New Zealand has announced that all applications under this new 2021 Resident Visa category must be made by 31 July 2022.

What happens if you have an existing Residence application with Immigration NZ?

Many people probably wonder what will happen to their existing Skilled Migrant Resident Visa application or a Residence from Work application. We understand that Immigration New Zealand will continue to assess residence applications based on the residence instructions in force at the time of lodgement. Therefore, if your existing residence application is declined, you will still have the right of appeal to the Immigration and Protection Tribunal. You can also make an application under the 2021 Resident Visa. It means applicants can have both applications being assessed by Immigration New Zealand at the same time. However, Immigration New Zealand will prioritise the new 2021 Resident Visa application.

A real plus under the 2021 Resident Visa programme is that, so far, it appears that there is no “substantial match” test for whether the job is skilled employment. That is, so long as you are on one of the eligible visas, and meet one of the 3 other criteria listed above, it doesn’t much matter what job you are doing. The exception is for those relying on having a job on a scarce list like the LTSSL. If you have a job which poses real challenges in a Skilled Migrant application, such as being a retail manager or restaurant manager, you should seriously consider switching to the 2021 Resident Visa and even withdrawing the SMC application in order to save yourself time and a lot of stress.

What should you do now?

While the new Resident Visa seems like a lifetime opportunity, the fine print of the policy has not been released yet. So it would be best if you were ready and prepared for the application process once it comes into effect.

Every case is different. In many cases it will be worthwhile for people to look at filing an application under the new scheme, but some may not qualify because of the time when their latest visa was issued, or the loss of their job in the meantime. It might also be worthwhile to keep your SMC application going if it will be assigned for assessment in a few months, because you could get a decision sooner. If it is declined, then you can still apply for the 2021 Resident Visa.

Here are some things you should consider:

  1. Check if you are eligible; contact us for advice if you are unsure whether you meet the criteria, or whether your particular circumstances justify you applying.
  2. Check the expiry date of your current visa. You will need to have held an eligible visa when the announcement was made on 29 September 2021 and when you apply under the new category.
  3. Applicants under the new category will still need to meet health and character requirements for Residence. Seek advice now if you have any health or character issues that need to be addressed. 
Posted in Business, Citizenship, Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas, Practice of Law | Tagged , , , , , , , | 1 Comment

Essential Skills Work Visas

James Turner discusses Essential Skills Work Visas in his latest video blog. This is the main type of visa for people who have a job offer and want to work in New Zealand. This allows people from outside New Zealand to work in New Zealand for a temporary period of time. Some people choose to apply for Residency following on from this. This is the main type of application until the accreditation scheme for employers is implemented.

Posted in Business, Citizenship, Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas, Practice of Law | Tagged , , , , , , , , | Leave a comment

Please, How Can I Help My Family?

We get this question a lot. In particular, we field requests from New Zealand Residents or Citizens about how to bring their relatives to NZ from the home country.

We often have to say that there is nothing to be done. There is simply not a solution for everybody. However, the following is a brief overview of options to consider.

During the COVID-19 border closure, most of these cannot be pursued because the processing of nearly all offshore visa applications has been suspended. However, hopefully that situation will not last forever. Read on with the mind-set that you are looking for something that can be done in 1 or 2 years time – not next week, or next month.


The Parent Residence scheme was re-opened in early 2020. This relies on the NZ son or daughter showing that they earn enough to sponsor one or both parents. The salary thresholds start with twice the median wage (currently about $112,000 a year, based on $27 per hour) and go up from there. With the border closures, this policy was put on hold indefinitely.

We don’t know when Immigration will start selecting from the Expressions of Interest that have already been put in. You can still file an EOI to get into the queue, but our guess is that, even if the scheme opened up again tomorrow, you could be waiting 3 – 5 years for a final outcome.

There are other choices, though:

  • Parent Retirement Residence – if your parents are moderately wealthy. They must invest NZ$1 million for 4 years, show that they have another $500,000 to live on, and have an income (such as a pension or rents), of $60,000 per year;
  • Temporary Retirement Visitor Visa – if your parents are 66 years or over. Similar criteria to the Retirement Residence, except that they only have to invest $750,000 for 2 years. But they only get a 2-year Visitor Visa, so the value of this policy is not great in return;
  • Multiple-Entry Visitor Visa – no age or investment requirements. This allows entry for a maximum stay of 6 months at a time, up to a maximum time in NZ of 18 months, over a 3-year period.

Adult Brothers and Sisters

There has been no specific Sibling visa policy since 2012. You cannot simply sponsor a brother or sister because of that family relationship. This means that they must look at one of the following:

  • Work Visa – based on a good job offer. What is a good job offer? It must be for work where your brother or sister has college-level qualifications and several years of work experience (usually, at least 3). It must also be for a job where the employer can prove that they cannot find NZ workers. It is unwise for a NZ family member to offer their relative a job. Immigration will immediately be suspicious that it is not genuine.
  • Student Visa – for a University-level course, preferably a Bachelor’s degree. This is an expensive route. Not only are most international student fees very high, but the applicant must prove that they have at least NZ$15,000 per year of study, of their own money, to support themselves. The NZ family can be sponsors, but they must show that they earn enough to do so, and they may also need to prove that they can provide accommodation. The advantage of getting a Student Visa like this is that, upon successful graduation, one can get a 3-year open Work Visa to look for a job related to what they studied. This could then lead to Residence.

This is an over-simplified description of what is available, but it may give some food for thought.

Dependent Children

We are talking here about the child of a Citizen or Resident of New Zealand. Generally speaking, a child is dependent if they are:

  • 24 years old or younger
  • single
  • have not had any children of their own
  • not earning enough income to support themselves – that is, they must rely upon parents or other caregivers for their food, accommodation and so on.

There are more specific rules depending upon their particular age.

The child may be biologically related, or adopted. Non-official or “customary” adoptions can sometimes be recognised, but if your home country has a well-developed administrative or legal system, then you would be expected to have the necessary Adoption Order issued by the government or by the courts.

Special Direction

People talk about these a lot. A Special Direction is a request to the Minister of Immigration to help where there doesn’t seem to be any other way. The trouble with these is that a great deal of work and cost can go into putting such a petition together, only to get a simple “Yes” or (more commonly) “No” answer, without any reasons why.

There is no point in pushing the Special Direction button unless you have tried everything else first. Otherwise, the case will simply be sent back with a “try your luck elsewhere” message.

We are usually reluctant to suggest a Special Direction because the outcome can be so uncertain. Sometimes, though, we suggest that a person asks for a certain policy requirement to be waived (set aside), such as an age restriction or an adverse health condition. You’re not asking for a visa, just for the chance to try for one. A blog from earlier this year touches on examples where Special Directions can be used to help people already in NZ, and sometimes they can work for people offshore, too.

How We Can Help

Through an initial consultation, we can usually work out whether there is any realistic avenue for you to consider. We can do this in-person, or by Skype or Zoom. In the last 18 months many of our meetings have bee online, for obvious reasons.

We can also normally quote a fixed fee to take on your case. Be warned: We aren’t the cheapest, but we like to think that we are good at what we do. And we will tell you honestly whether you should even try the strategy which we have identified.

Contact us directly to set up a meeting.

Posted in Business, Citizenship, Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas | Tagged , , , , , | Leave a comment

Success Story – SMC Appeal for a Marketing Specialist

New Zealand is facing another lockdown. It is another challenging time of the year for everyone, particularly migrants whose future in New Zealand remains uncertain. I believe there is nothing better to share than a success story of our client’s successful residence appeal.

As you may know already, since the COVID-19 lockdown in March 2020, the Government has postponed a number of visa programmes, including selections for Expressions of Interest (EOI) for the Skilled Migrant Category (SMC). This decision has left many skilled migrant workers unable to submit an SMC residence application.

An article published on stuff in April 2021 listed the latest Immigration NZ (INZ) stats for the EOI and SMC queues. Applicants are expected to wait two years for their residence applications to be decided. As of 16 August 2021, INZ currently has 11,568 unallocated SMC applications on hand for applicants who are in New Zealand. Those with an existing SMC residence application already lodged with INZ are left with two obstacles. Firstly, they have to face a two-year wait before their application is allocated. Secondly, is to have their applications approved by INZ.

Our client is one of the migrants who is in New Zealand on a temporary work visa which does not guarantee him residency. His SMC residence application was also stuck in the largest backlog of applications with a two year wait time. Therefore, when INZ declined his SMC application in February 2021, our client’s only option was to appeal his declined residence application with the Immigration and Protection Tribunal (IPT). To have the IPT overturn his SMC residence application was an important outcome for our client. By appealing, he had another shot at getting his SMC application re-assessed by INZ. He would not be able to submit another SMC application if the appeal was not successful.


Our client submitted an SMC residence application with INZ in April 2019 based on his current employment as a Marketing Specialist (ANZSCO 225113). Nineteen months later, INZ conducted a phone interview with our client and his employer to verify his employment. Following the interview, INZ issued a Potentially Prejudicial Information (“PPI”) letter raising concerns relating to his skilled employment. INZ was not satisfied that our client’s employment substantially matches the ANZSCO description of the Marketing Specialist job as required by the residence instructions. A substantive response was provided to INZ addressing all their concerns.

However, INZ concluded that he did not perform the ANZSCO core Tasks and, importantly, that the job was not sufficiently skilled to equate to “skilled employment” for the award of points. Without points for skilled employment or skilled work experience, his application could not be approved under the Skilled Migrant category. When our client approached us at that stage, he knew that his last hope was to appeal INZ’s decline decision with the IPT. The IPT’s role is to determine whether INZ conducted a correct assessment of the residence application.

The Residence Appeal

Conducting a thorough review of the SMC application and the INZ decision is the most important step before submitting a residence appeal with the IPT. We needed to identify INZ’s errors with their assessment. This required conducting external research on the actual role and what it entails, in order to demonstrate that our client’s role is indeed skilled and that INZ’s assessment was flawed.

Following the thorough review and extensive research, we identified that INZ failed to consider the relevant Core Tasks for a marketing specialist properly. INZ did not engage with the evidence presented, and placed too much emphasis on the telephone interview with our client, which influenced INZ’s decision.

We provided various arguments which criticised INZ’s approach to his SMC application. The IPT accepted almost all of the arguments we presented. 

There were two main errors in INZ’s decision that the IPT knocked down, which we want to highlight here:

1) Overlooking the evidence produced

The IPT found that INZ acted unfairly in their assessment by overlooking the evidence that had been provided. INZ was concerned that our client did not mention the supporting documents during his interview with INZ. For example, he provided evidence that he supported business growth and increase in sales growth. INZ’s concern that he did not refer in his interview to the evidence produced later on, overlooks the fact that the letter of concern is meant to provide an applicant with a genuine opportunity to produce further evidence supporting his application.

At no stage during the interview did INZ ask our client whether he carried out the specific core tasks of a marketing specialist. Instead, the IPT concluded that the interview of less than half an hour largely proceeded with the client providing basic information in response to elementary questions raised by INZ.

2) Focusing on the information provided at the interview

The IPT found that INZ’s focus on the information given at the interview did not respect the purpose of the letter of concern process. That is, to provide a genuine opportunity for further and better evidence to be provided. The result was that INZ did not have adequate regard to the more detailed evidence provided in response to the letter of concern. INZ failed to engage with documents provided in support of his residence application.

The Residence Appeal was successful, and the IPT returned the SMC residence application to INZ for a correct assessment. A copy of the IPT decision can be found here.

Moral of the story

Our role as immigration specialists is to find a solution. It’s all about transparency; dig deep and lay out all the facts on the table. Sometimes, focusing on INZ’s decision on its own is not enough. We need to go beyond the INZ decision to make proper arguments to the IPT as to why there are errors in the decision.

In the above scenario, we researched marketing specialists and their roles from external sources and other IPT decisions. It enabled us to demonstrate that the documents provided to INZ supported our client’s claim that he performs the ANZSCO core tasks. It was important to understand what the role entails and what the documents provided were. Otherwise, it would be difficult to argue why INZ was wrong to overlook the evidence provided. At the time of writing, we have not had feedback from INZ about the residence reassessment.

If you or someone you know is in a similar situation and needs assistance with lodging a residence SMC appeal, don’t hesitate to contact us.

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Section 61 Requests

My latest video blog explains what constitutes a legal status in New Zealand. I also talk us through the meaning and consequences of an illegal status and the options available to those with an unlawful status.

Posted in Citizenship, Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas, Practice of Law | Comments Off on Section 61 Requests

A Ban is a Ban – Unless it’s Not

There is a nasty little rule in the Immigration Act , which has given a lot of people grief and trouble in the past. It says that you cannot be granted a visa if you have “at any time, been removed, excluded, or deported from another country.” That is a permanent ban, no matter how long ago this happened to you. The only way to get past this is to request a Special Direction from the Minister of Immigration. See James Turner’s recent blog about deportation where he mentions this.

Quite often, people are banned from applying for visas to Australia for 3 years. When they try to get a New Zealand visa, they are told that they were “excluded” from Australia so that they can’t get a New Zealand visa. In many cases, this is wrong, and they were not excluded at all.

Being “Excluded”

Now, it is pretty clear in many cases what it means to have been removed or deported. Being put on a plane home by Government officials is how people commonly imagine deportation. In New Zealand, you are “deported” if you leave the country voluntarily, and Immigration is legally able to serve a Deportation Order on you – even if they have not done so yet.

But what does it mean to have been “excluded”? The Immigration Act is not very helpful because it doesn’t describe what it is. It basically refers to people who are not allowed to get any kind of visa at all unless the Minister intervenes. This includes people who have committed serious crimes, or are likely to; or those who represent a risk to security or public order.

The High Court considered this in the case of EM decided in 2019. After looking at the legal context, Justice Cooke concluded that to be excluded means to be completely prevented from entering a country – “re-entry is not allowed”:

To be excluded from another country contemplates a prohibition on re-entry into that country. If a person has committed some transgression that adversely affects their rights to re-enter a foreign country but it does not remove those rights, they will not have been excluded.

Chief Executive of the Ministry of Business, Innovation and Employment v EM [2019] NZHC 1966 (13 August 2019) at [36]

The Judge rejected the argument by the Government’s lawyers that partial prohibition upon entry still amounted to exclusion. Mere restrictions on entry were not sufficient. On the other hand, a complete prohibition on entry, even if it was temporary, would amount to exclusion.

The Australian Ban – PIC 4014

In most cases, when you apply for an Australian visa, you must meet one or more of the Public Interest Criteria (“PIC”) set out in the Migration Regulations. These set out risk factors to be considered when deciding whether to grant the visa. One that features frequently is PIC 4014, which applies to anyone who left Australia while they were an overstayer, or while they held certain types of Bridging Visas. They can only get a visa which requires PIC 4014 to be met, if:

  • they apply more than 3 years after they left Australia; or
  • they can show that they have “compassionate or compelling circumstances” affecting the interests of Australia, Australian nationals, or New Zealanders (again, this is a simplification).

The second option is a bit like the Special Direction avenue available under NZ law.

Importantly, though, PIC 4014 is not used for every visa type. Exceptions include certain job-based and partnership visas, and some Residence-class visas. This means that the PIC 4014 ban is not a complete ban. The problem is that Australian Home Affairs uses the term “exclusion” when they make their decisions. However, they are not applying NZ law. Their reference to “exclusion” doesn’t automatically mean the same thing as it does in this country.

EM in the High Court case mentioned above got caught out by PIC 4014 too. The High Court Judge in the EM case said that if EM had already tried, and failed, to get visas under the other categories available to him, then this would show that he was completely excluded for that 3-year period – that is, there was no way he could get a visa. However, as he had not made the attempt, he was not excluded.

Moral of the Story

To be “excluded” means a complete ban on entry into a country in any way, even if only for a temporary period. Merely being prevented from applying for certain types of visas during that period is not enough.

If you know someone with a similar history who has been told by Immigration New Zealand that they cannot get a visa, there may be an answer to that. It will depend on their personal background and their experience with the immigration authorities of the other country.

What I have set out above may not undo the problem in all cases. However, it is certainly something we can take on. Contact us to find out if we can help.

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Win a no win situation by thinking outside the box

As immigration practitioners, we are usually faced with difficult cases that seem to be a no-win situation. Such situations reminded me of one of my favourite quotes from the popular TV show “Suits”, where Harvey Spector said “Win a no-win situation by rewriting the rules”.

I recently received a thank you letter from the Immigration & Protection Tribunal (IPT) acknowledging my representation in a residence appeal case. It made me think again as to what made this case special and how we managed to win the Appeal. The simple answer, to win a no-win situation, is we needed to think big and get creative.


We were approached by a NZ citizen, a mother of two young children. Her husband is an Afghani citizen living in Pakistan. She only lived with him for approximately two months and has not seen her husband for three years since their marriage.

With the Covid-19 Pandemic and the border closures, it made it almost impossible for them to re-unite and live together as a family. Under the current border restrictions, for our client to travel to New Zealand he must hold a Partnership Work Visa or a Resident Visa. Given the couple have lived together for less than 12 months and the lengthy period of separation, Immigration NZ (INZ) will not approve the Partnership Work Visa application or a Resident Visa under the Family Partnership Category.

At this point, my initial opinion was there is no way for them to re-unite, unless the New Zealand citizen wife relocated with the children to either Pakistan or Afghanistan to live with her husband and get a chance in securing a Partnership Work Visa. However, this was not a feasible option for the NZ citizen wife and their children for various reasons, such as the Covid-19 pandemic outbreak in the region, and safety and security risks. These reasons could also apply to many people, therefore, we had to pause and think outside the box. How can we make this family’s circumstances special and advocate on their behalf to unite together in New Zealand?

Our strategy was to make an “Out of Policy” residence application. We submitted a Residence application to INZ knowing it will be declined as they do not meet the 12 months of living together requirement to be granted a Resident Visa. Once the Residence application is declined, we will appeal to the IPT that our client has special circumstances that warrants the grant of Residence as an exception to the residence instructions.

As predicted, the Residence application was lodged and declined on the grounds I mentioned above.

The Residence Appeal

We lodged the Residence appeal on the grounds that the decision to decline the residence application was correct but our client has special circumstances that warrants consideration by the Minister of Immigration to grant Residence as an exception to instructions.

Winning a Residence appeal on special circumstances is difficult. In the High Court decision of Rajan V Minister of Immigration [2004] NZAR615 (CA), Justice Glazebrook defined special circumstances as “circumstances that are uncommon, not commonplace, out of the ordinary, abnormal”. So we needed to make our client’s case stand out, which was not a walk in the park.

The first step was to demonstrate that our client has no option to re-unite with his family other than being granted Residence as an exception to instructions. The Covid-19 Pandemic outbreak is worldwide and the security issues in Pakistan and Afghanistan are shared by many people. Therefore, we had to dig deep into our client’s situation to identify the relevant factors that made his case special and uncommon, which would assist the IPT with its decision.

We argued that our client’s special circumstances arose primarily out of his relationship with his New Zealand citizen wife, the best interests of his two New Zealand-citizen children, and the significant difficulties that the wife and children will face if required to live in Afghanistan or Pakistan.

Here are some of the points we argued that:

  • Our client is in a genuine and stable partnership with his New Zealand-citizen wife and they have two New Zealand-citizen children.
  • The living circumstances for Afghanis living in Pakistan are not safe and will have a negative impact on the wife and children.
  • The COVID-19 outbreak in Afghanistan and Pakistan is serious.
  • There were genuine and realistic reasons, with evidence, why the New Zealand wife cannot relocate to Afghanistan or Pakistan. Simply stating that there are security issues in the region or the Covid-19 pandemic outbreak is out of control will not convince the IPT to decide in our client’s favour. We needed to go beyond the basic information. For example, in our case, the NZ Citizen wife’s experience from her last visit to Afghanistan and Pakistan was traumatic. She and her children encountered health issues due to being in a different environment with lack of health services. We provided medical reports that confirmed that she suffered from stress-related disorders and depression which would get worse if she returned to any of those two countries.
  • Outlined the difficult position of Afghanis living in Pakistan particularly in the Covid-19 environment. This was backed up by recent reports from Amnesty International, European, Human Rights Watch World Report 2021 and various other genuine sources.
  • We outlined to the IPT with supporting documents that the best interests of the NZ Citizen children would be met by being raised by both parents in New Zealand.

The Appeal outcome

A copy of the decision can be found on the IPT website. The Tribunal found that our client had special circumstances that warranted the grant of residence as an exception to instructions.

The IPT was satisfied that our client and his New Zealand citizen wife are in a genuine and stable partnership, despite their lengthy separation. The best interests of their two New Zealand-citizen children are best served by them being reunited with their father in New Zealand. The wife and the children have a strong family nexus and support in New Zealand. By contrast, our client and his family have no realistic option to live together in a safe and secure environment outside New Zealand. They face significant difficulties in living together in Pakistan and Afghanistan, due to the security issues and health risks there, complicated by the current pandemic.

Final outcome

The Associate Minister of Immigration agreed with the IPT’s recommendation and granted Residence to our client. He will now be able to join his wife and children in New Zealand where they can live in a safe environment.

To get to this stage, it required extensive research outside the Immigration policy. We had to rely on international sources, evidence and documents to back up our client’s claims. We had to ask the client the right questions and give them clear instructions/guidance on what documents they can provide to back up their claims.

If you or someone you know is facing a similar situation where they don’t believe there is hope, let them contact us. We can help identify their options and provide them with the right guidance to achieve their goals.

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