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.

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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

Immigration has Caught a Virus Too

And it’s a virus of confusion. This is nobody’s fault. Two weeks ago – if you can remember back that far – the way that business got done was pretty familiar. Suddenly we are in a different world of isolation and restriction. Even though it is an agency of the State, Immigration New Zealand has been hit as hard as anyone.

The Level 4 lockdown and the Epidemic Management regulations mentioned in our last blog have raised more questions than they might have answered. From what I have seen in communications with INZ, the policy-makers don’t yet have answers to those questions.

For example, if someone on an employer-sponsored Work Visa has to choose to work less than 30 hours a week, or be made redundant, what happens to their application for Skilled Migrant Residence? The way things are now, their application would be declined because they are not in full-time work (which must be at least 30 hours per week). Do they have to take the chance of filing an appeal and arguing that they face special circumstances? On one view, they certainly do. Are the circumstances all that special, when tens of thousands of other people face the same issue?

By accepting lower hours, they might have breached the conditions of their Work Visa, which was granted on the basis that they would be in full-time work. This makes them liable for deportation. Is INZ going to act on that, or will they just look the other way because they don’t have the time or resources to chase everyone down? Might they decide to deport people in order to remove migrants from the picture, so that local workers get a chance to take the job? This is a live question, with talk now circulating about unemployment going into double digits. Or, perhaps, will the rules be relaxed for a period, in order to recognise that we actually need to keep migrants in jobs because they have skills that Kiwis do not?

That is just one aspect of the whole, sprawling mess. I have been involved in formulating questions which need answers, from the industry. Immigration has invited this. Perhaps they recognise that they are not equal to tackling this alone. Bear in mind that most visa staff and managers are unable to function at all because they are not set up for remote working, or they are having to make do at home and get onto conference calls and Zoom meetings.

Then there are unforeseen disconnects in the system. As we mentioned, everyone whose temporary visa was to expire between 2 April and 9 July gets an extension to 25 September because of the effect of the Epidemic Management Notice. Normally, people get an automated warning 45 days in advance of the end of their visa, to tell them to reapply or leave New Zealand. Well, they are still getting those emails. Someone forgot to switch them off, or recode them. This is probably causing quite a bit of stress for people who don’t know which message to trust.

Again, really it’s nobody’s fault. There are just so many loose ends to try to pick up right now that everyone is scrambling.

We don’t have all the answers either. Like our colleagues in the industry, we haven’t been told a great deal. However, we may be able to shed some light on your particular case if we can. We’re probably about as well placed as anyone outside the Policy and Service Design meeting room in Wellington, to suggest how things might go. Contact us if you have some important decisions to make, and we’ll see what we can do.

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It’s Business as Usual at Laurent Law

While everyone gets settled into their new daily lives, with a lot of unanswered questions at this stage, we would like to assure you that Laurent Law is continuing to operate as normal.

If you have any questions or concerns regarding your visa situation, your family or staff members please do not hesitate to get in contact with us.

Here is what you need to know:

  • Our team are currently working remotely
  • We continue to assist with any immigration related matters
  • Although processing times will be a lot slower, we continue to assist with NZ visa applications
  • You can give us a call on 0064 9 630 0411
  • OR email askus@laurentlaw.co.nz or whoever is handling your case right now
  • We will keep you informed on any updates via our Facebook page https://www.facebook.com/NZImmigrationLawyers/ or through our blogs and newsletters.

Visas and the National Lockdown

On Monday 23 March 2020 the Prime Minister issued an Epidemic Management Notice under the Epidemic Preparedness Act 2006.  It gives special powers to various Government agencies, including Immigration.  It comes into effect on 2 April 2020 and expires on 25 June 2020, but can be extended if required.  It has the following effects:

  • Work, Student, Visitor, Interim and Limited Visas (“temporary visas”) which expire between 2 April and 9 July 2020 will be automatically extended until 25 September 2020.  INZ says that confirmation of extensions will be emailed to all Visa holders.  A Visa holder must be in New Zealand in order to have their Visa extended.  This does not relate to Resident Visas.
  • People holding temporary visas which expire on or before 1 April 2020, and who cannot leave New Zealand, must apply online for a new Visa.

The Notice gives additional powers to Judges and Immigration Compliance officers when detaining people who face deportation.

Getting Back to New Zealand

As you know by now, the border is closed to everyone except NZ Citizens and Residents.  Some narrow exceptions exist (for example, workers in essential services like health).  It is also possible to request entry permission for “humanitarian reasons” on a case-by-case basis.  However, it won’t be easy to convince Government that your circumstances are compelling, unless the situation is exceptional.

Anyone coming into the country must self-isolate for 14 days after arrival.  No exceptions.  People who do not follow instructions given by a Health Officer at the airport can be deported, because this now means that they have breached the conditions of their visa.

Impact on the Courts

Some of our work involves taking appeals to the Immigration & Protection Tribunal (IPT), and to the higher Courts in New Zealand.  The Chief Justice has ordered that only essential or urgent matters may be heard during the State of Emergency, and most Ministry of Justice offices are shut or working remotely like everyone else.

The IPT has cancelled live hearings for the time being (for example, Resident deportation and Refugee/Protection cases).  We can still file new appeals, which can be emailed to IPT staff.  As we operate in a largely electronic environment, we are well-placed to prepare evidence and legal submissions for our existing appellant clients.

What if I get Infected?

Covid-19 is now registered as an infectious or quarantinable disease under the New Zealand Health Act 1956.  This means that all people in New Zealand, regardless of their visa status, are eligible for publicly funded services to treat Covid-19.   All acute care relating to Covid-19 in New Zealand will be managed by the public health system.  There is currently no provision for this type of care in the private sector (source, Accuro Health Insurance).

Please stay safe and stay home.

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Limited evidence partnership applications

Can I get my partner a Visa if we have not lived together or have only lived together for a short period of time? What if we met online?

A New Zealand citizen or resident can support their applicant overseas partner for a Visitor or Work Visa if they are living together in a genuine and stable partnership. Immigration instructions do not specify a time period for an applicant to have been living together in a genuine and stable partnership with their New Zealand partner in order for a partnership Visitor Visa or partnership Work Visa to be approved. However in practice, the time required living together in a genuine and stable partnership to achieve an approval of such an application is at least 3 – 4 months.

A New Zealand citizen or resident can support their partner for a Residence Visa if they have been living together in a genuine and stable partnership for at least 12 months.

In all cases, the onus of demonstrating that an applicant and their New Zealand partner are living together in a genuine and stable partnership lies with the applicant and their New Zealand partner. This must be demonstrated in document form, because partnership applications are considered on the papers at least in the first instance. Sometimes an immigration officer will invite an applicant and their New Zealand partner to an interview in person, but this is after an initial assessment on the papers has been carried out.

Requirement for partnership to be genuine and stable

According to immigration instructions, a partnership is “genuine and stable” if an immigration officer is satisfied that;

  1. It is genuine, because it has been entered into with the intention of being maintained on a long-term and exclusive basis; and
  2. Is stable, because it is likely to endure

Evidence that a partnership is genuine and stable can include supporting letters from friends and family, evidence of financial interdependence, being married, having children, photos together. However no single type of evidence is determinative, all evidence will all be taken into account in an overall assessment of whether a partnership is genuine and stable.

Relevance of applicant and New Zealand partner living together

Evidence that an applicant and their New Zealand partner are living together can include joint ownership of residential property, joint tenancy agreement, correspondence addressed to both parties at the same address.

An interesting scenario arises where the applicant has not lived together with their New Zealand citizen or resident partner, or has not lived together with them for very long. Or, the applicant and their New Zealand partner may not be able to provide any or much evidence of living together in a genuine and stable partnership. These situations do not neatly meet the requirement in immigration instructions that the applicant and their New Zealand partner are “living together in a genuine and stable partnership”.

If the applicant is in New Zealand already on a Temporary Visa, a lack of living together usually needs to be rectified by ensuring the applicant and the New Zealand partner start living together and soon. If the applicant and the New Zealand partner are serious about their partnership, then this should not present a problem.

However the situation when not much living together has occurred or not much evidence of this can be produced can also arise where the applicant is overseas. Sometimes they may have never been to New Zealand. For example, consider the situation where the applicant and the New Zealand partner have met through an online dating website. They may have communicated frequently or recently married, but this is not enough to meet the requirement of living together.

INZ direction on how to deal with this situation

INZ has released an “advice to staff” which deals with this situation. Advice to staff dated 5 June 2015 explains that where the requirement for living together is not met, immigration officers should consider whether or not to exercise their discretion to issue a general Visitor Visa for the purpose of a family visit;

If the couple cannot demonstrate they meet one or more of the partnership requirements, including living together, Immigration Officers should refrain from granting visas as exceptions to instructions (ETIs) as this undermines the integrity of partnership instructions. Instead, if a couple appear to be genuine and credible but cannot demonstrate they meet living together requirements, officer should consider whether or not to exercise their discretion to issue a general visitor visa for the purpose of a family visit.

A further advice to staff dated 10 May 2019 states;

A number of applicants have been applying for temporary visas when they have not met part of instruction(s) … – specifically, they have not lived together – and have been requesting a General Visitor Visa to allow them to establish their relationship in New Zealand. While a General Visitor Visa can be granted to partners of NZ citizens/residents at INZs discretion, this should only be done when it has been established that the relationship is genuine and stable and that the applicants entered the relationship with the intention that it would be on a long term basis. A General Visitor Visa should not be the automatic default position when an applicant cannot demonstrate part of partnership instructions are met, as this risks appearing to create a de facto policy and would go against the intent of instructions. Each case needs to be assessed on its merits.

Grant of General Visitor Visa possible

Strong evidence of the relationship being genuine stable and as much evidence of any limited living together needs to be provided, in order to achieve the grant of a General Visitor Visa , in reliance on this advice to staff. Bona fides – whether the applicant is genuine in their intentions for coming to New Zealand – will likely be considered as part of the General Visitor Visa assessment by INZ.  Bona fides will not be established if an immigration officer is not satisfied an applicant will return to their home country should the relationship dissolve.

If the relationship is formative in nature and there has been little or no living together, a good outcome would be the grant of a Visitor Visa for say 6 or 9 months. An applicant may use the time they have in New Zealand on the General Visitor Visa to build have sufficient evidence of living together in a genuine and stable partnership to lodge a further partnership application, possibly Residence once 12 months is living together in a genuine and stable partnership is established.

It is not crucial that the applicant and their New Zealand partner are living together in a genuine and stable partnership at the time the application is lodged. Periods of separation between an applicant and a New Zealand partner are acceptable, however evidence of communications while separated should be provided to INZ.

Note that applicants from a Visa waiver country can enter New Zealand for 3 month without needing to apply for a Visa first (they do however need to apply for a NZ electronic travel authority). However if the intention is to remain in New Zealand with their partner and go on to apply for further partnership Visa, it is generally not recommended to make use of the 3 month Visa. Instead, the applicant should remain in their home country and apply for a Visa from there, the existence of the partnership and the probable intention to apply for a further partnership Visa once in New Zealand explained. The reason for this relates to the issue of bona fides – an applicant may not be seen as a genuine visitor for 3 months on arrival in New Zealand on a Visa waiver if they have a partner in New Zealand they will be staying with.

If the relationship has been in existence for a number of years and there has been some living together, maybe the couple are married and have a child together, it may be possible to convince INZ to  grant a 12 month Work Visa at the initial stage. Often Laurent Law will present an application for a Work Visa of this nature as also being for a Visitor Visa as a fallback option, if INZ is not prepared to grant the Work Visa.

Contact us here at Laurent Law to help with you partnership application, where you and your partner may not have lived together for very long or at all and we will see what we can do to assist.

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