Immigration – again a hot topic in the lead up to the General election

New Zealand will hold a General Election on 19 September 2020 and the date is approaching fast. Political parties are positioning themselves in order to win votes, including on the issue of immigration.

The New Zealand First party says it will cap immigration numbers to 15,000 per year and has said that the party obtaining the immigration portfolio would be a “bottom line” for coalition negotiations it enters into. New Zealand First Party leader Winston Peters is quoted as saying “we were bringing immigration down – but not nearly fast enough – because we weren’t in charge. That’s why we want the immigration portfolio”. In the year July 2019 – June 2020, 30,055 people were approved Residence in New Zealand. In the year July 2018 – June 2019, 34,515 people were approved Residence in New Zealand.

New Zealand First has long held a stance that could be described as anti-immigration and each time an election approaches, media tends to report this with increased attention. The New Zealand First Party’s stance will likely continue to create fear in the minds of migrants who want to make New Zealand their home. Expert economists also say the proposed immigration cap would have a negative overall impact on the New Zealand economy.

The Labour and National Parties have been reported as refusing to comment on the New Zealand First Party’s latest statements about reducing Residence numbers. However the Labour Party’s immigration policy, listed on their website states that they want to reduce net migration numbers by 20-30,000 per year through the following measures:

Student VisaLimiting visas and ability to work for low value coursesA fall of 6,000-10,000
Post Study Work Visa – OpenRemove work visas without a job offer for lower level qualification graduatesA fall of around 9,000-12,000
Work VisasRegionalise the occupation list and ensure that employers hire Kiwis firstA fall of around 5,000-8,000

Therefore at least two of the three Government coalition parties appear committed to reducing immigration numbers should they win the September election. A review of the National Party’s website reveals the party has not yet issued a clear Immigration policy, while the policy displayed on the Green Party’s website does not give numbers.

Also of significant note in recent weeks has been the departure of the Minister of Immigration, Iain Lees-Galloway, after he was fired by the Prime Minister for an abuse of power. An article on www.newsroom.co.nz boldly suggests that the former Immigration Minister “will not be missed by migrants, after an attempt to cut immigration and put Kiwis first created a whole host of bigger problems”. The Labour and New Zealand First parties campaigned in the lead up to the 2017 election on reducing immigration numbers, but on being voted into power, have presided over one of the most significant backlogs in unallocated Residence applications in recent history.

Certainly here at Laurent Law, in recent times we have come across many people who have been facing long waiting times for their Skilled Migrant Residence application to be allocated and assessed. It appears on average it is now taking nearly 18 months for a Skilled Migrant Residence application to be allocated for assessment and up to 2 years for a decision to be made. This is despite the structure of the Skilled Migrant category remaining unchanged since the National Party lost power in 2017.

The situation around international students continues to be a hot topic, with many saying the economic value they bring to New Zealand justifies allowing them to return to New Zealand sooner rather than later. Government has said that international students will not return during 2020, but is considering ways it might allow them in to arrive in 2021. It looks as if international students will need to pay for their managed isolation. Due to New Zealand’s virus free status, we are now the top ranked destination for international students looking to study. Perhaps we should be finding a way to safely take advantage of the positive reputation we have earned.

Meanwhile, interest in New Zealand from badly virus hit United States and United Kingdom has increased, with visits to Immigration New Zealand’s New Zealand Now website from the United States in June 2020 up 160% compared to June 2019. It does appear New Zealand is becoming an increasingly attractive destination for people worldwide. Some even describe New Zealand as a “utopia”. It is interesting that as interest in migrating to New Zealand increases, politicians campaign for votes by saying they will reduce immigration numbers. In the future, policy changes may mean it becomes more difficult to migrate to New Zealand than it has been in the past. It might be a case of getting in before it is too late.

In further recent announcements, Government says it plans to invest $50 million over the next four years to combat migrant exploitation. New measures include:

  • Creating a new visa that will support migrants to leave exploitative situations without negatively affecting their immigration status.
  • Setting up a new dedicated free phone number, online reporting and better triaging to make it easier to report migrant worker exploitation.

The National Party has said this is “too little, too late”. It seems likely there will be more announcements from politicians prior to election day.

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Work Visas – the Moving Playing Field

Among all the noise about the NZ border closure, the separation of families, and the difficulties in getting into the country, some dramatic changes to Work Visa settings have sneaked up on us.

One Threshold to Rule Them All

Since August 2017, employer-assisted Work Visas have been defined as high-, mid- and lower-skilled according to the hourly salary you were being paid. They were also tied to the job classification under the Australia New Zealand Standard Classification of Occupations (ANZSCO).

The skill level affected the length of the visa, the way the labour market for that job had to be tested, and the visas people could get for their family. A highly paid engineer could get a 5-year visa, her partner would come in on an open Work Visa, and their children could go to school for free. A farm hand could only get 1-year visas at a time, for 3 years at most; and their family could only visit – not work or go to school.

From 27 July, a single dividing line comes in. ANZSCO is no longer relevant – that is, a poorly paid engineer will be treated as lower-skilled just because of the salary they get. Everything hangs on the hourly wage, either above or below $25.50 per hour which is currently the national median wage. Those above the line:

  • get 3-year visas
  • can bring partner or children in on Work and Student Visas

Those below the line:

  • get 6-month visas at a time, for a maximum stay of 18 months – then they must stay away for 12 months
  • can only support their family for Visitor Visas
  • have to get the employer to list the job with WINZ

Ramifications

One thing that leaps out is the short duration of each visa for those below the median wage – 6 months. The rationale is that those being paid less are filling a very temporary space, which will soon be taken up by New Zealand workers including those returning from overseas.

I have a few things to say about that:

  • Such short-term visas force migrants, and employers, to apply more frequently. This is going to tie up already overstretched visa processing resources. It is probably unsustainable and will lead to more of the sort of paralysis in the visa system that has prevailed since late 2018;
  • The continual uncertainty for migrant workers, especially when their own country is probably in the grip of the worldwide pandemic, will spill over in mental health crises and social disruption, violence and substance abuse. It was already happening under the old scheme;
  • The assumption that local people will beat down the doors to do those jobs is misplaced, in the case of many less attractive occupations like rest home care. The burden of keeping these essential employees on the books will fall on employers who are still trying to recover from the Lockdown.

One group that is going to be hit hard is those employees who currently earn between $21.68 and $25.49 per hour – that is, just under the median wage. There are probably a lot of them. Up till now, they could get 3-year Work Visas and bring partner and children on Work and Student Visas. When they go to renew their visas, they and their family will only get 6 months at a time. Their partner must stop working. Their children must stop going to school, or pay international school fees.

Their bosses will notice the difference too. Previously, if the job was a trade, technical or managerial role, the company could rely on showing that they had advertised in the normal way. In future, in order to keep their migrant staff on, they will have to list the job with the Ministry of Social Development every 6 months; and they may have to spend time assessing applicants referred to them by WINZ. Many employers have told us that this is often a fruitless exercise, as many job-seekers are unreliable, have a poor attitude to work, or have drug problems that make them unfit.

The changes described above are painted as a response to the seismic shifts in the economy and labour market brought about by the response to Covid-19. The supply of labour must be “flexible” to adapt to changing demand. All of this ignores what those of us in the industry have known, and said, for years – impeding the supply of migrants, either directly or indirectly, won’t magically solve New Zealand’s employment and skills shortages by plumbing the domestic market.

New Zealand needs migrants. It has needed them for a long time. It will still need them during the recession and recovery. And it will need them, perhaps more than ever, after Covid-19 has gone.

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Unlawful children and their right to attend school

There are various reasons why parents or caregivers cannot renew their visas. As a result, they have become unlawful in New Zealand, and their children become unlawful as well.

We have come across situations where parents’ visas have expired because they are unable to renew their visas. They are then approached by the child’s school, requesting evidence that the child has a student visa; otherwise, the school cannot proceed with the enrollment registration for the child.

If you received a letter from your child’s school requesting evidence of their immigration status or visa renewals and you do not have this, then don’t worry. Your child, despite their or your immigration status, may still be able to attend school as a domestic student.

Access to education is every child’s fundamental right. Articles 28 and 29 of the United Nations Convention on the Rights of the Child (UNCROC) states that all children and young people “have the right to a good quality education that helps you develop your personality, talents and abilities to the full”.

New Zealand requirements

Unless you are a New Zealand citizen or resident, you will likely need a Student Visa to study in New Zealand. Some students are deemed domestic students, and others are fee-paying students. 

The term “domestic student” applies to some dependent children of temporary visa holders. Such children can attend primary or high schools.  

However, students who are unlawfully in New Zealand can still apply to study as a domestic student.

Section 3 of the Education Act 1989 provides for the right to free primary and secondary education from age 5-19.

Therefore, if your child is between the ages 5-19 years, they may apply to study as a domestic student despite the parents or caregiver’s unlawful status.

Criteria to be approved domestic Student Visa

The criteria to be eligible for a domestic student visa are very specific. The child will be eligible under one of two categories:

  1. If the child arrived in New Zealand on or before 23 August 2013:
    1. They are aged 5 to 19 years old;
    2. They are unlawfully in New Zealand, they do not hold a visa to be here;
    3. They have been living continuously in New Zealand with a parent or legal guardian for over six months;
    4. have never enrolled in a New Zealand school or has most recently been enrolled as a domestic student. 
  2. If the child arrived in New Zealand after 23 August 2013:
    1. They are aged 5 -19 years old;
    1. The child is unlawfully living in New Zealand, and
    2. The child and a parent/legal guardian have been living together in New Zealand continuously for over six months (note that extended family members are excluded), and
    3. Either the child hasn’t enrolled in a New Zealand school, or private training establishment or the child’s most recent enrollment was as a domestic student, and
    4. The child’s last visa was not one of the following:
      1. a student visa – unless the child’s last student visa issued under the Immigration Act 2009 and most recent enrollment at a registered school was as a domestic student.
      2. an interim visa with study conditions
      3. a visitor visa
      4. a limited purpose permit under the Immigration Act 1987
      5. a limited visa under the Immigration Act 2009

What to do if your child is unlawful and fits under one of the above categories:

Students living unlawfully in New Zealand can apply to the Ministry of Education (MOE) to be a domestic student. There is an application form that can be found on their website and can be download from this link. The parent or the caregiver of the child will need to complete the form. The school can help parents and caregivers complete the form. Parents can also visit the local MOE office. A list of MOE offices can be found here.

Once completed, you will need to submit the application to the MOE, either by giving it to the school who will send it to the Ministry, or by sending it to your local MOE office. The Ministry will then send a letter advising the parents or the caregivers whether they have been successful or not. According to their website, this process usually takes four weeks. 

Application outcome

If the application is approved, you must enroll your child to attend school and follow all the standard school rules for attendance. The approval will be valid for the duration given on the MOE approval letter, or until the child leaves New Zealand, or on 1 January of the year after the child turns 19 years old. 

If the application is declined, your child will need to enrol as a fee-paying international student at the school. 

Therefore, when your child’s student visa is about to expire, you must apply for a new student visa before they become unlawful in New Zealand. If you are unable to renew the visa, and your child becomes unlawful in New Zealand, do not let your child be deprived of their right to education. We suggest that parents and caregivers visit www.education.govt.nz to see if your child qualifies for a domestic Student visa.

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Hitting the books – NZ Student Visas

New Zealand is a popular study destination for many. New Zealand education providers generally have a good reputation and offer a quality learning experience. Attractive weather and lifestyle in New Zealand contributes to an enjoyable student environment and often completes the picture.

The number of tertiary international students in New Zealand has increased substantially over the last 10 years. International students comprise a growing proportion of all tertiary students. Statistics from the Ministry of Education show that the number of full-time tertiary international students in 2017 was 43,100. By early 2020 this had gone above 60,000. Between 2007 and 2017, the number of tertiary international students as a proportion of all students increased from 8.3% to 15%. In 2017 83% of tertiary international students were from Asia, 22,200 from China and 13,800 from India.

Can I study in New Zealand?

Unless you are a New Zealand citizen or resident, you will likely need a Student Visa in order to study in New Zealand. The holder of a Student Visa is permitted to study in New Zealand for the duration of their Visa. There are some people who do not require a Student Visa;

  • Holders of other types of Temporary Visa, to study for less than three calendar months within a 12 month period;
  • Working Holiday Visa holders, to study for less than 6 months during their total stay in New Zealand;
  • Work Visa holders, to undertake study or training which is authorised by their employer as part of their employment;
  • New Zealand citizens and residents.

Some can study while paying the same fees that a New Zealand citizen or resident would pay. This category of person is called a “domestic student”. The most significant category of person considered to be domestic students are the dependent children of most Work Visa holders, where the child is studying at a primary or secondary level. However, most people who come to study in New Zealand do so as fee-paying international students. Fees that international students pay are generally substantially more than what is required from domestic students.

To assist with the cost of study, tertiary international students can usually work for up to 20 hours a week during the academic year and full time during the Christmas-New Year holiday period. International students are often found working as retail assistants, waiting tables or otherwise working in restaurants and bars, and working in supermarkets.

What should I study in New Zealand?

There is no restriction on what course can be studied in New Zealand, but if gaining Residence in New Zealand is the end goal, it is important to study a course that will set you up to obtain employment which is skilled for the purpose of the Skilled Migrant category. In our experience here at Laurent Law, while many people are able to secure the post-study Work Visa which follows completion of study in New Zealand, many are unable to secure skilled employment in their field of study and therefore fall short of the requirements to be granted Residence.

For example, an applicant is better off studying something that requires specialist, technical knowledge or expertise, particularly in an area in which New Zealand suffers a skill shortage so that many jobs will be available, as opposed to something more general in nature. This may require some research.

The classic example of a situation which does not lead to Residence is completing a Business qualification and then going to secure employment in the retail sector. Only a Retail Manager will meet the requirement for skilled employment, not a Retail Sales Assistant, and Immigration New Zealand takes a very strict view of who and what is a proper Retail Manager as opposed to Sales Assistant. Whether an applicant is a genuine Retail Manager has been the subject of a large number of hard-fought appeals to the Immigration and Protection Tribunal, many of which are unsuccessful.

Student Visas and the effect of Covid-19

Radio New Zealand has reported that the number of international students in New Zealand has declined due to Covid-19.

In late April 2020 there were 51,580 people with a valid Student Visa in New Zealand, 14.5 percent fewer than the 60,348 who were in New Zealand in mid-March. Some had their Student Visas expire and others returned home on repatriation flights, but the closure of the New Zealand border and uncertainty about when it will re-open will have led to many delaying or cancelling their study plans.

Nevertheless, education providers are reporting that interest in study in New Zealand remains strong, with many now receiving enquiries for study in 2021. It appears that now New Zealand appears to have eliminated Covid-19, the country is viewed as a very safe and attractive destination, particularly compared to places such as the USA and the UK.

The National Party has recently proposed that international students be allowed back into the country, provided they undergo a health check and can self-isolate for 14 days on arrival in New Zealand. The concern appears to relate to the fact that the New Zealand economy will suffer further without international students. The National Party is also saying that in the interests of keeping jobs for New Zealanders, international students will not be able to work. How the international students may feel about that is not clear, but because you need to be a New Zealand citizen or Permanent Resident in order to vote, the opinion of international students themselves are not likely to influence the stance of these politicians.

Queenstown has been suggested as a suitable location for international students to self-isolate, given the international airport and the number of hotels situated there.

How can I get a Student Visa?

You can apply for a fee-paying international Student Visa through Immigration New Zealand’s online service. Applicants need to;

  • Provide an offer of place from a New Zealand education provider and pay or show the ability to pay tuition fees;
  • Show sufficient funds for support while in New Zealand and evidence of an outward flight;
  • Complete a Chest X ray and carry Medical Insurance;
  • Provide Police Certificates to show they are of good character;
  • Genuinely intend to study in New Zealand (be a bona fide Student).

Application fees vary depending on your country of citizenship and where you are applying from. Some applicants may be required to submit their passport to a Visa Application Centre. Some Student Visa holders can bring a partner and children on Temporary Visas if they wish.

Contact us here at Laurent Law for assistance with your Student Visa application.

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Essential Skills Work Visas under Covid-19

Covid-19, no doubt, has significantly impacted many sectors of the New Zealand economy because of the border closures and travel restrictions.

What does this mean for the New Zealand employer, and how will Immigration New Zealand (“INZ”) approach Essential Work Visa applications, in particular, the labour market test.

 

Visa Processing of applications under Alert level 2

Under Alert Level 4, the processing of visa applications has been limited and focused on implementing the Epidemic Management Notice. That is focusing on requests from individuals who have a critical purpose for coming to New Zealand, and some temporary visa categories for applicants who are in New Zealand. 

Under Alert 2, INZ is now in a position to begin processing a wider range of visa applications as more staff return to the INZ offices onshore. As of 14 May 2020, INZ has resumed the processing of residence class visa applications, and temporary class visa applications, including Essential Skills Work Visa for applicants currently in New Zealand. However, priority will be given to applications for critical workers to support the Government response to COVID-19 and for other temporary visa applicants that are in New Zealand. The processing of visa applications is expected to change as the border closures and travel restrictions change.

 

Availability of New Zealanders / Labour Market Test

Many employers are already aware that in order to employ a migrant worker, they must first take all reasonable steps to hire a New Zealander for the role. INZ must be satisfied that there are no New Zealanders available for the position offered. The employer is required to supply the following information:

  • The steps they followed to recruit New Zealand workers;
  • Reasons why the New Zealanders who applied for the role are not suitable; and
  • Evidence of advertising the position via Trade Me, Seek etc., such as reports of views and submissions to confirm the number and types of applicants who applied for the job. 

Covid-19 has affected New Zealand’s job markets dramatically, both by reducing the volume of business various industries can do, and by pushing many local workers out of their jobs. Therefore, INZ is expected to take this into account when assessing work visa applications under the Essential Skills Category. However, under the Essential Skills instructions, WK1.1 Objective, INZ must also consider a range of factors, including the need to help New Zealand businesses provide their services while protecting the employment opportunities for New Zealanders. 

Advertising the role

Employers can advertise and recruit staff under any Covid-19 Alert Level. Of course, higher alert levels resulted in different methods of recruitment such as remote interviews, restrictions on movement between regions, on-site training etc. The restrictions obviously applied to both New Zealanders and overseas applicants. Employers would have faced delays and many challenges in the recruitment process to facilitate contactless interviews under the Alert level applicable at the time.  

INZ will ask employers to provide evidence that, at the time the applicant’s work visa application is assessed, the availability of New Zealanders to undertake the job remains unchanged. They will probably be required to confirm that the offer of employment is still valid, and employment is sustainable – that is, can the company afford to pay wages. 

Employers will not need to re-advertise the role. However, they may need to provide evidence of ongoing recruitment. 

Skills Match Report

Employers wanting to employ overseas workers for ANZSCO skill level 4 and 5 roles (lower- skilled occupations) are required to provide a Skills Match Report and advice from Work and Income NZ (WINZ). This is necessary before they offer the role to the applicant. The employer needs to satisfy INZ that no New Zealanders are available to be trained to do the work. 

In the past, the labour market was unlikely to change from the time the employer provides evidence of genuine attempts to recruit New Zealanders and the time INZ assess the application. 

However, due to the Covid-19 outbreak, which resulted in travel restrictions and impacted business operations in NZ, unemployment rates have increased significantly in the space of a few weeks. In the months of April and May 2020, 38,425 people received jobseeker support. You can view this data on the Ministry of Social Development website for Income Support and Wage Subsidy Weekly Update. The 1 May 2020 weekly update represents 6.1 per cent of the working-age population receiving jobseeker benefit.

This means INZ will assess the Essential Skills Work Visa applications by balancing the objective of the Essential Skills Work Visa category with other factors:

  • helping New Zealand firms maintain capacity and supporting the provision of services meeting important social needs; while
  • not displacing New Zealanders from employment opportunities or hindering improvements to wages or working conditions.

Balancing exercise at the time of assessment

Immigration officers can request further information from the employer when assessing the Essential Skills Work Visa application. The reason is to show that despite earlier attempts to recruit New Zealanders, there are still no New Zealanders available for the position offered at the time of assessment.

Given the high unemployment rate, this will be a challenging exercise for the New Zealand employer. It will also be a challenge to demonstrate this with evidence. It would depend on the role offered, regions of employment and the circumstances of the employer.

Here are a few tips for the employer on the type of evidence an Immigration officer may request:

  • Ongoing recruitment of New Zealanders for a similar role may show evidence that available New Zealanders would have been hired by that employer.

 

  • Another employer in the same industry may be able to provide a letter confirming their own difficulties in finding suitable staff.

 

  • In regions out of Auckland, employers can demonstrate that there is still a shortage of suitable New Zealanders for the role. Employers can check the regional skills shortage list via the INZ website available on this link.

 

INZ is not expecting employers to re-advertise the position. Still, employers can choose to do so if the immigration officer is not satisfied that there are no New Zealanders available. 

 

Genuine and sustainable employment

We have seen in the past, INZ raising various issues that the employment is not genuine and sustainable as required under the Essential Skills instructions. If the employer received funding from the Covid-19 Wage Subsidy Scheme, this should not on its own indicate that employment offered is not genuine or not sustainable. The COVID -19 Wage Subsidy provides support to employers who are unable to operate their business due to restrictions required to manage public health risks; and not due to concerns about the employer’s sustainability. 

The reality is that INZ will be treating genuine attempts to recruit New Zealanders more critically than before. Employers will face questions and requests from a case officer confirming the offer of employment they made to the applicant and the genuine attempts to recruit New Zealanders.

If you are applying for a job-based visa, or you are the New Zealand employer, and you feel like are you placed between a rock and a hard place and need professional help to address such concerns or requests from INZ,  please contact us at Laurent Law. 

 

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Character Waivers for New Zealand

Everyone applying for a NZ visa must prove that they are of good character. Simon Laurent talks about some of the pitfalls, and what you can do to get out of them.

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New Zealand Investor Residence

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Covid-19 – Upcoming Changes to Immigration Law

As we write, new law relating to Immigration is being discussed in Parliament. Once it has passed through Parliament and has received the Royal Assent, the Immigration (Covid-19 Response) Amendment Bill will make major changes to New Zealand Immigration Law. Details regarding the new law can be found on the New Zealand Parliament website here.

The Way Things are Now

The current law has limited ability to deal with groups of individuals, which creates difficulty in emergency situations such the Covid-19 epidemic where a large number of visa holders have been affected.

The Immigration Act contains some emergency provisions which apply where the Prime Minister has issued an Epidemic Management Notice, for example the extension of valid visas for 3 months after the day on which the Notice expires. However, some migrants may have lost jobs and want to start a new one, some have had their hours reduced and some migrants may have had their pay affected. The current law does not deal well with such situations. It was drafted in 2006 when New Zealand had much fewer Temporary migrants, and the Government believes it is not fit for purpose right now.

As at 27 April 2020, there were approximately 350,000 temporary visa holders in New Zealand.

• 200,400 have work visas whose visa employment conditions may need to be varied in response to Covid-19;

• 74,800 are student visa holders whose visa conditions may need to be relaxed, to enable them to change their course or work extra hours until education providers are able to reopen;

• 56,500 are on visitor visas, who may need to have the expiry date extended, if commercial flights out of New Zealand continue to be unavailable;

What’s in the Amendment Bill?

The new law creates 8 powers, most of which are exercised by the Minister of Immigration by way of Special Direction. They enable decisions to be made about whole classes of people, and may depend on things like their visas status, their nationality, or what kind of travel document they are required to hold. The powers are:

  • to vary or cancel conditions for resident class visa holders;
  • to impose, vary, or cancel conditions for temporary entry class visa holders;
  • to waive any regulatory requirements for certain visa applications;
  • to grant visas in the absence of an application;
  • to extend the expiry dates of visas;
  • to waive the requirement to obtain a transit visa;
  • to revoke the entry permission of a person who has been deemed by regulations to hold a visa and to have been granted entry permission;
  • to suspend the ability of some people to make applications for visas or submit expressions of interest in applying for visas.

It is expected that the Amendment will be enacted by 15 May 2020, which is very quick. The speed at which the new law is being made could raise concern. It is a critical feature of a functioning democracy that the public and Parliament are able to scrutinise law. We are yet to know the precise manner in which the powers may be exercised. Certainly, the new law gives significant power to the Minister of Immigration.

Having said this, the new powers do not allow the Minister to do absolutely anything unchecked. They are time limited and will automatically come to an end after 12 months. The powers can only be exercised to contain or mitigate Covid-19 and its effects.

Furthermore, when a power is to be exercised, this must first be put before Parliament who may “disallow” it. If Parliament allows it to go ahead, it must be published on the website of the Ministry of Business Innovation and Employmentas well as in a Government document called the Gazette. The thinking is that this will allow for sufficient scrutiny of the powers when exercised.

Some say that these measures are not enough, and that there are inadequate safeguards on the exercise of the new powers. At the time of writing, the new law is being discussed at Select Committee. Some submissions to the Committee raise the concern that, without proper checks and balances, a situation of “unbridled power” could be created. “Unbridled power” is the title of a book by former Prime Minister Geoffrey Palmer (1989-1990) and refers to a situation where a member of the Executive branch of Government, for example a Cabinet Minister, is effectively able to make decisions of their choosing, unchecked by opposition parties in Parliament. Unchecked power resting in a Cabinet Minister may represent a threat to democracy.

Damage Control

However it is clear at the moment that Immigration New Zealand is facing a significant difficulty in dealing with a large queue of applications, with delays in the processing of application being made worse by INZ staff being unable to work remotely from home during the lockdown; see for example here. The Covid-19 situation is war-time like and unprecedented, which provides a context for the new powers. In such crisis situations, Government may well need powers that enable it to act quickly and swiftly. In any lesser context, the powers may not be appropriate.

If the Minister of Immigration does not receive the new powers, once the lockdown ends INZ is going to find itself with a very significant visa application headache. It is suggested that, at a time of uncertainty for migrants, the swift exercise of relevant powers by the Minister of Immigration may be necessary to resolve the situation. In addition to the safeguards that do exist in the new law, the Minister of Immigration will be accountable to Parliament in the usual way during Question Time and also by the media.

We will try to keep people up to date on how the Amendment Bill will play out. If you have not done so already, subscribe to this blog or get on our newsletter mailing list.

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Residence from Work (Accredited Employer) Visas – What has changed?

On 7 October 2019, the Government announced changes to the Talent (Accredited Employer) Work Visas (“Talent Work Visa”). These have raised questions about how this will impact applicants’ eligibility under the Residence from Work Category:

  • The annual salary has increased from NZ$55,000 to $79,560. The new salary applies to all Talent Work Visa applications we receive from 7 October, regardless of when the employer became accredited;
  • Removing the option to get a Permanent Resident Visa if you apply for a Talent (Accredited Employer) Resident Visa; and
  • Limiting the amount of time employers can be accredited to 24 months.

Already hold a Talent Work Visa?

If you already have a Talent Work Visa or you applied before 7 October 2019, you are not affected by these changes and the conditions and length of your visa will not change.

If you later apply for a Talent (Accredited Employer) Resident Visa you will only need a salary of $55,000 or more.

If your salary is $90,000 or more when you apply for Residence under Talent policy, you may be eligible for a Permanent Resident Visa.  While a normal Resident Visa has travel conditions which can limit your ability to be out of NZ for the first few years, the PRV has no such conditions and may be of significant benefit to some people, depending on their career or life ambitions.

Eligibility under the Talent (Accredited Employer) Resident Visa

The objective of this part of the Residence from Work Category is to enable the grant of residence class visas to people whose talents are needed by New Zealand employers.  To apply for this visa, you must:

  1. hold a Talent Work Visa and have worked for an accredited employer for a period of at least 24 months; or
  2. during the currency of that visa, have been employed in New Zealand throughout a period of 24 months:
    1. by any accredited employer; or
    2. by an employer who is not an accredited employer, provided that the conditions of your visa were varied to let you work for them, or
    3. by any accredited employer, whose accreditation is rescinded or not renewed during the currency of that visa, provided the employment continued to meet the following requirements.
  3. the base salary offered must be no less than the base salary that was required at the time the initial work visa application was made – for example $55,000 per year;
  4. the offer of employment must be full time and genuine;
  5. they have employment in New Zealand with a minimum base salary of NZ$55,000 per annum if the associated work to residence visa application (WR1) was made before 7 October 2019; or NZ$79,560 per annum if the associated work to residence visa application (WR1) was made on or after 7 October 2019;

Currency of Talent Work Visas

A Talent Work Visa is issued for 30 months. After being employed with an accredited employer for 24 months, you can apply for a Talent (Accredited Employer) Resident Visa.

If the Resident Visa application is not completed by the time the Work Visa expires, you can get a further Work Visa if you are still being paid the minimum base salary that was in place when you applied for the current visa, and you have an offer of employment for a period of at least another 12 months.

Talent Work Visa – A route to Residence under the Skilled Migrant Category (SMC)

Obtaining a Talent Work Visa could also be a stepping stone to applying for Residence under SMC.  The advantage of securing a Talent Work Visa rather than a Work Visa under the Essential Skills Category is avoiding the need to meet the labour market test dramas. Because, under the Essential Skills Work Visa Category, employers are required to demonstrate there are no New Zealand citizens or residents that can fill the role. This has proven to be a struggle for many employers.

Also, if you meet the points under SMC, you will not need to wait for two years to apply for Residence, which is normally what you need to do on a Talent Work Visa (see above). You can use the Talent Work Visa as a short-cut to Skilled Migrant Residence.

The requirements are not straight forward. Not sure if you are impacted by these changes or need help with visas under the Talent (Accredited Employer), contact Laurent Law for assistance.

Posted in Citizenship, Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas, Practice of Law | 4 Comments

Can I Still Come to New Zealand?

For most overseas people, the answer is “No”. The border is closed to contain the spread of Covid-19. But there are some exceptions, and you might qualify. In particular, I will talk about requests to come in on humanitarian grounds, and entry of “essential workers”.

The default position is that no-one can come back in, except New Zealand Citizens and Residents. Family members of New Zealanders have to be accompanied by the New Zealand partner or parent, or the NZ child whom they are taking care of. Even Australians, who can normally fly in as Residents, first have to ask permission or risk being stopped from boarding their flight. Immigration New Zealand has set out the rules in general terms.

Humanitarian Cases

Anyone claiming that they need to come in for humanitarian reasons must show that they have a “critical purpose” for doing so. The wording in the new Immigration Instructions for humanitarian entry makes it clear that this is a tough test to meet. The words I have heard used by Immigration officials send the same message.

Humanitarian reasons are “exceptional circumstances of a humanitarian nature that make it strongly desirable for the applicant to travel and enter New Zealand.” This wording is similar to that used for deportation appeals, where we have had some experience and success over many years.

Whether you pass the test depends on:

  • the strength of your links to NZ, usually through family, or by how long you have lived here in the past, and how much time you have been away; and
  • the consequences of not allowing you in – what other options you have, and the impact on you or on someone else if you can’t come to NZ.

Our experience with making such requests is that it is critical to tell a strong story, which is easy to understand right away. We look for the “hook line” which makes your case stand out from others’. There may be features in your case which you take for granted, but which can make all the difference to someone who has to make the hard call whether to let you visit or not.

Essential Workers

Again, the question is whether someone coming in can show a “critical purpose” for entering New Zealand. The focus here is on how your skills can aid the health and wellbeing of this country. There are 2 main groups of interest:

Essential Health Workers: 2-year Work Visas are available for those who:

  • have a job offer with one of the listed agencies – including hospitals, medical centres and rest homes;
  • will work in a listed occupation – doctors, nurses, theatre technicians and other specialists. This includes aged care workers, which may reflect concerns about the heightened risks to the elderly posed by Covid-19; and
  • have the support of a Government agency involved in the response to Covid-19.

These Work Visas allow people to work for any employer in any occupation. It reflects the reality that medical staff should be able to move to where they are needed as the pandemic situation develops.

It also appears that people with desirable medical skills and qualifications, but without a job offer, can get a Visitor Visa to enter the county and take up work anywhere they choose, although at first they would only get a 6-month Visitor Visa with work conditions attached.

Other Essential Workers: These are people who can deliver services and maintain infrastructure which are critical for the country to function during its response to the pandemic.

The list of those critical occupations has not yet been published. Along with others on the NZAMI Board, I have helped with suggestions to senior MBIE officials which they can feed through to the All of Government Working Group. In the meantime, conditions for visa holders working in supermarkets and rest homes have been relaxed to enable them to contribute more fully to what are now vital areas of work.

The decisionmakers face a dilemma here. There have historically been staff shortages in many industries, either because New Zealanders don’t have the skill-set, or because they don’t want to do the work – think caregivers at rest homes, or fruit pickers. We need people to look after the elderly; we need someone to pick the grapes right now. At the same time, many are talking about a sudden recession, and there are dark warnings of a massive increase in unemployment. It would not be a good look to bring in more people from overseas when so many locals might be looking for jobs very soon.

Other News

We have just heard that the draw of Expressions of Interest for the new Parent Category has been deferred. It was meant to happen in May, and has been postponed – but not cancelled entirely.

And Working Holiday Visas have been put on hold. This is hardly surprising. Processing of almost all visa applications for offshore applicants has stopped. Priority will be given to Partner applications, and there will of course be work on the “essential worker” exceptions mentioned above.

The situation is evolving literally every day. What we publish as news today, will be out of date by the end of the week. Subscribe to our blog to remain informed.

Posted in Citizenship, Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas, Office Update, Practice of Law | 3 Comments