Now that I have been approved Residence in New Zealand, is there anything else I need to do?

The Lawyers at Laurent Law are often asked to assist with securing a client the approval of a Residence Visa. If this task is completed successfully, it is great news! However, remember that the journey usually does not end there. In this blog, we discuss some of the most important things to consider after the approval of a Residence Visa.

1. Applying for Permanent Residence

A Residence Visa enables the holder to remain in New Zealand permanently, but usually carries travel conditions that allow travel to and from New Zealand for the first 2 years. If a Residence Visa holder never leaves New Zealand, they will have no problem. But if the holder wants to travel to and from New Zealand after the first 2 years, they need to apply for Permanent Residence or a Variation of Travel conditions.

If the holder of a Residence Visa is outside New Zealand with expired travel conditions, the Residence Visa expires. In some situations, the expired Residence Visa may be able to be reinstated, by applying for a “second or subsequent Residence Visa”. However if this is not possible, the process of applying for Residence must start again from the beginning.

The holder of a Permanent Residence Visa is able to remain in New Zealand permanently AND travel to and from New Zealand on a permanent basis (travel conditions are not limited to the first 2 years).

In order to qualify for a Permanent Residence Visa, the holder of a Residence Visa must:

  1. Have held it for at least 24 months;
  2. Have spent their first day in New Zealand as a Resident at least 24 months before the application for Permanent Residence is made;
  3. Demonstrate a “commitment to New Zealand”;
  4. Meet any conditions imposed on their Residence Visa (for example, Residence Visas granted under the Investor categories usually carry “section 49” conditions of either 3 or 4 years in duration, and these must be met before applying for Permanent Residence);
  5. Still meet the requirement to be of good character – usually, no criminal convictions in the meantime.

“Commitment to New Zealand” can be demonstrated in one of five ways. The most common method – because it is the easiest to meet – is spending a significant period of time in New Zealand. This means that they have spent 184 days or more in New Zealand, in each of the two 12 month periods of the 24 months immediately before they apply for Permanent Residence.

There are some other ways to meet the “commitment to New Zealand” requirement, which you can read about in our blog here.

Family members who were included in a Residence application will also qualify for Permanent Residence, where the Principal Applicant meets at least one of the five “commitment to New Zealand” requirements.

2. Applying for a Variation of Travel Conditions

If for some reason a Residence Visa holder does not meet one of the “commitment to New Zealand” requirements for approval of Permanent Residence, but still wishes to travel to and from New Zealand after the first 2 years, they may be able to apply to extend their travel condition (called a “variation” of travel conditions).

The rules relating to variation of travel conditions are quite complicated, so if you need help with this one, we recommend you contact us so we can discuss your situation in detail.

3. Lifting conditions imposed under section 49 Immigration Act 2009

There are some classes of Residence Visas which carry “section 49 conditions”.  This includes those granted Residence under Investor and Parent categories. Discussion of some of these special cases can be found in our blog from February 2019.

If the Residence Visa holder does not comply with s 49 conditions, they will become liable for deportation under section 159 of the Immigration Act 2009. For this reason, it is important to check and understand if your Residence Visa is subject to any section 49 conditions. You can ask us if you are unsure and we will let you know.

4. Avoid getting any criminal convictions!

We come across this one from time to time. The most common situation is a Residence Visa holder will receive a criminal conviction for drink driving within the first 2 years of holding Residence. This starts a process under section 161 Immigration Act 2009. INZ will usually write to the Residence Visa holder to seek comment first, then decide whether to issue a deportation liability notice.

We have a lot of experience assisting Residence Visa holders who have criminal convictions, see our blog on this topic here.

It is also relevant to bear in mind that providing false and misleading information to Immigration New Zealand at any stage is not only a criminal offence under section 342 Immigration Act 2009, it could also make you liable for deportation under section 158 Immigration Act 2009. See our blog on this topic here.

4. Applying for New Zealand citizenship

To qualify for New Zealand citizenship, the following requirements must be met:

  1. The applicant has been living in New Zealand as a Resident for at least the last five years;
  2. They have spent enough time in New Zealand in the last 5 years, which is at least 240 days in each 12-month period and 1,350 days across the 5 years;
  3. They can hold a conversation in English;
  4. They are of good character. Criminal convictions may delay a person’s ability to obtain New Zealand citizenship by a number of years.

For more detail, see our blog about applying for New Zealand citizenship here.

New Zealand allows dual citizenship to be held, so if an applicant’s home country also allows dual citizenship, the result can be that the holder is a citizen of more than one country.

However, some countries do not themselves allow dual citizenship. If you are from one of those countries, then you may face a difficult choice about whether to keep your old nationality, or give it up for New Zealand Citizenship. See our blog about renouncing New Zealand citizenship here.

5. Once you have New Zealand citizenship, you can live and work in Australia too! – it is a significant reward to be able to live and work in both countries

New Zealand citizens are eligible for a Subclass 444 Visa Special Category Visa on arrival in Australia, which allows the holder to study, live and work in Australia. This is a longstanding arrangement existing between New Zealand and Australia, with Australian citizens also entitled to the grant of a Residence Visa on arrival in New Zealand. For some people, the ability to study, live and work in both New Zealand and Australia is an attractive consideration when thinking about migrating to one of the two countries.

If you have done everything right along the way, then as a New Zealand citizen, you could be jetting off to spend some time in Australia soon!

6. Conclusion

As you can see, there is quite a bit to consider after being approved a Residence Visa. Getting Residence is usually the hardest part, but it is certainly not the end of the journey. You may require careful Immigration Advice to achieve the outcome you desire. See our blog on the benefits of using an Immigration expert here.

Please feel welcome to contact us to discuss any of the issues raised here.

Posted in Immigration Visas | Leave a comment

Benefits of using an immigration expert

As legal professionals, we often hear during our meetings with potential clients comments such as “Why do I need to pay you this much to file an application?, or “Why should I use a lawyer/adviser to assist me with the application process?, “How is it different if I file this myself?” and so on. These are all legitimate questions. Hence, we need to be able to justify the fees and explain to our clients the benefits of using a professional immigration lawyer/adviser to assist them with the application process.

You do not need a lawyer or an adviser to file an application with Immigration New Zealand (“INZ”). However, there are certainly benefits of getting professional help to manage the visa application with INZ. We specialise in immigration law, and together we bring over 40 years of experience to the table. This means that we have a lot of exposure to many aspects of the law and have come across many scenarios that can help you understand the law and address any potential issues that may arise.

Our job is not simply filing an application with INZ. We interpret and apply the Immigration Act 2009 and the immigration instructions (Policy). We write proper legal submissions to represent the best case on your behalf to INZ. We manage the whole application process with INZ. Our job is to ensure that you meet the criteria of the application itself; identifying the possible risks that may arise with the application, we collect and provide the correct documents. Many applications may seem simple via INZ’s website, but it does not consider other documents that may assist in getting your application approved, or the meaning of key words used in the Act or in policy. Let us look at some examples of why getting professional help is sometimes necessary.

A Visitor Visa application

INZ’s website provides the following requirements to file a Visitor Visa application.

  • You must provide proof of your identity
  • You must be of good health
  • You must be of good character
  • You must genuinely intend to meet the conditions of your visa.
  • Bring Family
  • Funds or sponsorship
  • Health Care
  • Onward travel

A person can click on the above requirements on INZ’s website to see what evidence they can provide to support the application. However, the information on the website is vague. It does not list what you can provide to support your case and circumstances. For instance, it states that you must provide supporting documents that:

Show you meet all the criteria for the visa you are applying for, and support your reasons for spending time in New Zealand.”

However, it does not say what type of supporting documents you can submit to support your visa application.

INZ also provides on its website that when assessing information about your personal circumstances, INZ looks at things like:

any family ties you may have in your home country or in New Zealand, any personal, financial, work or other commitments you may have in your home country or New Zealand, any circumstances that mean you may not want to return to your home country.”

Again, many applicants may think that providing a statement or a document that they have family or work commitments back in their home country will be sufficient for INZ to approve their application. Unfortunately, that is not the case. The most common reasons INZ declines visitor visa applications are:

– that the applicant does not meet the “bona fide” requirements, or

– INZ is not satisfied that the applicant has genuine intentions to visit in New Zealand, or

– there is insufficient evidence to demonstrate that the applicant will return to their home country at the end of their visit.

There is no specific list on INZ’s website to say what documents you can use to support your genuine reasons for visiting New Zealand. Here is why using immigration experts can be useful. We usually go beyond INZ’s standard requirements and provide more documents to cover all aspects of your personal circumstances. For example – family ties, we may ask you to provide evidence of their status in their home country, employment, etc. For evidence of work and financial commitments – we may go beyond submitting one bank statement which shows sufficient funds. We often ask for evidence of property, assets, previous travel history etc. We also request specific documents relevant to your circumstances which we know from experience will get you across the line.

As experienced lawyers, we know what INZ expect from visitor visa applicants based on their nationality. For some countries, we may need to provide additional documents to satisfy INZ that they are bona fide applicants. After gathering all the required documentation, including the additional documents from specific nationalities, we provide a detailed legal submission to back this up. Our submissions are not simply a cover page that states what type of application we are filing. We provide detailed arguments about how you will meet the requirements under the relevant immigration instructions, and references to the documents provided to meet each requirement under the visitor visa category.

Therefore, hiring an immigration expert will ensure you submit a complete application with all the required supporting documents. If you do not get it right from the start, in that case, you will risk your application getting declined. There is no right of appeal or reconsideration for temporary visa applicants who are applying from offshore. We should also point out that avoiding mistakes in an application is important, as sometimes it can become difficult to remedy the errors made in a previous application.

Previous immigration history

If you have had previous visa applications declined or character/health issues, in that case, using an immigration lawyer will be beneficial. As mentioned above, it can be difficult to fix a mistake made in a previous application. However, we can still manage applications for applicants who have had past immigration issues with INZ. Our deep knowledge of the law and familiarity with complex cases can benefit you in addressing those concerns with INZ.

For example, I have discussed how we can win a no-win situation by thinking outside the box in an earlier blog. We encountered a case where an applicant has a history of breaching the conditions of previous visas. We chose not to play INZ’s game and set out our reasoning to respond to INZ’s concerns.

Another example is applicants who have character issues that need to be addressed. INZ will simply write to the applicant setting out the character concerns and why the applicant will not meet the character requirements for residence or temporary entry visa. INZ will invite the applicant to provide comments and submissions to support a character waiver request. Many will be struck with a character waiver request, and what is required? INZ’s letters would usually provide the following when requesting comments from the applicant for a residence character waiver:

  • the seriousness of the offence (generally indicated by the term of imprisonment or size of the fine);
  • whether there is more than one offence;
  • the significance of the false, misleading or forged information provided, or information withheld, and whether the applicant is able to supply a reasonable and credible explanation or other evidence indicating that in supplying or withholding such information they did not intend to deceive INZ;
  • how long ago the relevant event occurred;
  • whether the applicant has any immediate family lawfully and permanently in New Zealand;
  • whether the applicant has some strong emotional or physical tie to New Zealand;
  • whether the applicant’s potential contribution to New Zealand will be significant.

Once again, the list above does not specify what type of documents you can provide to support the character waiver request, and how these justify the grant of a waiver. We will guide you with what documents you can collect based on your circumstances. We then provide detailed legal submissions arguing the above points to support why you should be granted a character waiver.

INZ can get it wrong

INZ is not always right. We have recently encountered a case where INZ issued a letter raising character concerns that our client will not meet the character requirements for the grant of residence. INZ invited the client to provide comments in support of a character waiver. We identified two issues with INZ’s letter:

  1. INZ applied the wrong character instructions. If they had been correct, it would require INZ to decline the application as our client will not be eligible for a character waiver in the first place. So INZ’s request to inviting the client to provide comments for a character waiver was completely wrong.
  2. Upon conducting some legal research, it appeared that the character instructions INZ relied on were incorrect and did not apply to our client. Therefore, INZ has made an incorrect assessment of the facts of the application.

While you have no obligation to use an immigration lawyer, hiring one can save you a lot of headaches and money. Lodging a complete application that meets the requirements will reduce your chances of getting the application declined. If the application you filed with INZ is declined, you will end up using an immigration lawyer to assist you with filing another application, or a reconsideration if you are in NZ. You will be paying more money to INZ (i.e. government application fees), and the lawyer may charge more if issues were raised from the previous visa decline that needs to be addressed. In the case of residence, you will instead need professional assistance to file an appeal with the Immigration & Protection Tribunal. See our vlog to find out what is involved.

Remember immigration lawyers will operate in your best interest, so feel free to contact us if you need us handle your immigration case.

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

The US Supreme Court and NZ Visas

The number of enquiries to Immigration NZ’s website from the US has quadrupled in the last couple of weeks. This follows the Supreme Court decision of Dobbs v Jackson Women’s Health Organisation (24 June 2022) which overruled Roe v Wade from 1973, the case which established the ability to have an abortion as a right protected by the Constitution. Why are Amercians so worried by this decision?

Ramifications of Dobbs

The Supreme Court claimed that its ruling was restricted to abortion, and said nothing about any other rights and freedoms. Yet in the same decision it was asserted that, because Roe had “distorted” the law for many years, there was now a justification for overruling other decisions that had relied upon the Roe doctrine and which had affirmed Constitutional protection for various rights. That is, the door was now open to winding back rights which are unpalatable to the Republican constituency in the US – the Supreme Court itself consisting of a Republican majority.

Dobbs declared that abortion was no longer a constitutional right, and was a matter for each State to legislate. It runs directly counter to the development of human rights law in many democratic jurisdictions, which have affirmed and entrenched various rights of individuals as being matters of private choice and self-determination, rather than those which can be given or withheld by an elected assembly. Without constitutional protection, such rights can be taken away without needing to answer the question “is this contrary to our Constitution?”

And there is more. For instance, there are now fears that part of Alito J’s opinion will be a barrier to litigation filed by those who cannot show that they are directly injured by the effects of climate change.

In their bids for nomination, several of the Supreme Court Justices declared that they would not touch Roe v Wade because of its precedent status. Their about-face in Dobbs has caused many, including those who supported their nomination, to feel betrayed and misled, and to ask what other promises they will break. Such is the risk inherent in politically-driven judicial appointments.

There is reason, then, for Americans to be afraid about the fallout from the Supreme Court’s approach. Some are now looking for another home. What options does New Zealand offer?

Working Holiday Visa (WHV)

People under 30 from a number of countries were able to come in WHVs until the scheme was frozen by the COVID-19 border closure in March 2020. This option has recently reopened, and allows US citizens aged between 18 and 30 to be in NZ on an open Work Visa for 12 months. They must have access to NZ$4,200 to cover their expenses, and must take out medical and comprehensive hospitalisation insurance for the duration of their stay.

Being on the ground here with a Work Visa provides an opportunity to explore longer term work opportunities, some of which might even lead to Residence in the long run. Those with university degrees and specialist skills – especially in areas like IT, construction or health – may have good prospects in an economy which is woefully short-staffed.

Accredited Employer Work Visas (AEWV)

From 4 July (yes, it is a coincidence), migrants can apply for Work Visas under the AEWV policy. However, they can only be offered a job by a NZ employer which has been granted the new form of Accreditation, and for a job which has been approved under the Job Check stage of the AEWV process. See our recent Corporate Newsletter describing the “3 gate” process.

Companies could only apply for Accreditation from 23 May 2022; and the Job Check phase only opened for business on 20 June. This means that, right now, few if any jobs will have been validated for offer to overseas workers. This is an evolving space, and Immigration’s ability to process the volume of both Accreditation and Job Check applications is still not clear.

Specific Purpose Work Visa (SPWV)

The most common flavour of the SPWV which will be of interest to people from North America is what is commonly known as the intra-corporate transfer. A multinational company places a key staff member in NZ to carry out a project or provide specialist assistance, and normally for a defined time period. Alternatively, a specialist is sent on assignment by their US employer to carry out work in a NZ company on contract.

Again, this SPWV route was shut during the border closure, but it is now an option which companies and employees can consider as a way of relocating to NZ, even if it is initially for a year or two. In some cases, we have been able to convert a SPWV to a longer-term Work Visa, as a springboard to Residence. The current Residence settings – or what’s left of them – are not amenable to this strategy. However, mounting political pressure to address chronic labour shortages across many sectors suggests that the Government ought to think hard about establishing new ways that migrants can secure a future here. Otherwise they will just leave, as they have been in droves over the last few months.

Investor Visas

This category is only for those who can invest a significant sum in NZ:

  • a minimum of NZ$3 million (US$1.85 million) for 4 years for Investor 2, and the investor must show at least 3 years’ of prior experience of owing or managing a business;
  • NZ$10 million (US$6.2 million) for 3 years under the flagship Investor 1.

Our vlog gives more details about the criteria, and some of the pitfalls. There was a drop-off in new applications over the last couple of years, possibly driven in part by a dramatic slowdown in deciding such cases. But early in 2022 it appears that additional resources were directed to clearing the backlog, so that this may be an ideal time to consider starting such an application.

Posted in Immigration Visas | Leave a comment

What is an “exception to Instructions” and could this help me?

The detailed rules that Immigration Officers must apply to decide New Zealand Visa applications are found in the Immigration New Zealand Operational Manual. These are called “Immigration Instructions”. As Immigration Lawyers it is our knowledge of these detailed Immigration Instructions which allows us to provide advice and guide clients in relation to their Visa applications.

Based on our knowledge of the Immigration Instructions, we may tell a client that either they should or should not proceed with filing a Visa application. A good level of skill in reading, interpreting and applying Immigration Instructions to the various situations we are presented with by clients is critical to our success.

Usually, if the detailed requirements of Immigration Instructions for a particular Visa application are not met, our advice is that the application will be declined.

However if your application seems doomed to failure and all hope is lost – don’t give up just yet! Our message in this Blog is that there is some ability for Immigration Officers to make an exception to Immigration Instructions – shortened as, an “exception to Instructions” . This is despite Instructions indicating that the Visa must be declined.

So what is an exception to Instructions?

An exception to Instructions is granted when an Immigration Officer makes an exception to the usual requirements for a Visa and approves a Visa. Without the exception to Instructions, the Visa application would be declined. Securing the grant of a Visa as an exception can be a very valuable outcome.

It is important to note that INZ has no discretion to consider an Exception to Residence Instructions (Instructions which apply to applications for Residence Visas). However, in our experience INZ can and does consider, then approve a Temporary Visa by way of exception to Temporary Visa Instructions (Instructions which apply to applications for Temporary Visas).

Immigration Instruction E7.10(b) states;

If an application fails to meet the requirements of temporary entry instructions, officers must then consider all the circumstances of the application to see if an exception to temporary entry instructions is justified, taking into account the objectives of temporary entry instructions and the situation and purpose of the applicant.

In deciding whether to grant an exception, an Immigration Officer must consider all the circumstances, taking into account;

  • The objective of temporary entry instructions (every Temporary Visa category has an objective).
  • The situation and purpose of the applicant.

It is also relevant to note that some Temporary Visa Instructions are “restricted”. An Immigration Officer does not have the ability to make an exception to these. An example of restricted Temporary Visa Instructions are the detailed Instructions regarding critical purpose Visitor Visas, which have been available while the NZ border has been closed owing to Covid-19. However, it does appear that the Minister of Immigration may be able to grant an exception to restricted Temporary Visa Instructions – see s 76 Immigration Act 2009.

At Laurent Law we can help clients prepare their case for the grant of a Visa as an exception to instructions.

Recent success story

Recently at Laurent Law we were approached by a client who had exceeded the maximum stay allowed in New Zealand on a Visitor Visa. Usually, visitors to New Zealand can stay for a maximum of 9 months, within the last 18 months. This means that if a visitor stays in New Zealand for 9 months, they must remain outside New Zealand for a further 9 months before they can come back.

The client we met with asked if we could assist to secure a Visitor Visa to be in New Zealand for a further 4 months beyond the 9 month visit they had already made.

Our answer was that this could only be secured by way of an exception to Instructions.

The first thing to note is that the grant of an exception to instructions is not at all certain. In many cases an exception to instructions is not justified. Some strong reasons need to be put forward in favour of the exception to Instructions.

In our client’s case, he wanted to remain in New Zealand for longer because his daughter (a New Zealand citizen) was pregnant and due to give birth soon. The client’s daughter needed her father for help and support during the pregnancy, because her brother-in-law recently had an accident, her husband did not speak good English and there was no other family member that could assist. Our client provided evidence that he would in fact depart New Zealand, by way of a return flight itinerary.

The Visitor Visa was approved, as an exception to Instructions, for 4 months as requested.

In our view, this was a relatively compelling case for the approval of a further Visitor Visa as an exception. The period of further stay was relatively short, defined, and the client gave an assurance that he would depart in due course. If the client had asked for a further stay longer than 4 months, for example 12 months, this may not have been possible.

Some other situations requiring an exception to Instructions may not be as simple.

At the moment we are assisting a client who is asking for the approval of a Partnership Work Visa as an exception to Instructions, because he does not meet health requirements owing to suffering a medical issue requiring expensive treatment. In this case, INZ may or may not be willing to approve the Work Visa as an exception, given the cost of the required medical treatment.

However, the client has lived in New Zealand for more than 10 years and has been gainfully employed during that time, meaning he has made a strong commitment and contribution to New Zealand. He also has a partner in New Zealand who has a pathway to Residence. It may be reasonable for INZ to return the commitment in allowing the client to stay and receive medical treatment, even though it is expensive. We will see what the outcome is within the next month or two.

Please feel welcome to contact us if you need help with a Visa application, or if you think you may require an exception to Instructions. We can help.

Posted in Immigration Visas | 1 Comment

Think outside the box and rewrite the rules to win

Last year I wrote a blog on how to win a no-win situation by thinking outside the box. Today, I would like to share a similar story where we did not play Immigration New Zealand’s (INZ) game and rewrote the rules.

Background

We were approached by a client who received a five-page letter from INZ raising various concerns relating to visa breaches. When I first looked at INZ’s letter, I thought this would be a difficult case to win. I was not sure how I would overcome all the previous visa breaches. However, I stopped and looked at the letter again and my client’s circumstances and remembered that as advocates, our job is to try and find a solution to the issue. Therefore, I decided to put a strategy together to make a case on behalf of my client.

Our client applied for a Partner of a Worker Visa application with INZ. INZ believed that she breached the conditions of her previous temporary visa applications. Firstly, they believed she had worked while holding an earlier Visitor Visa. Applicants are not allowed to undertake any employment whilst holding a Visitor Visa. Secondly, INZ believed she was working in a slightly different role from the one specified in her Essential Skills Work Visa. People on that type of visa can only work in the role specified on that visa. If INZ believes that the visa holder worked outside their visa conditions, they are entitled to raise concerns that the person is not a “bona fide” applicant.

Immigration Instructions define the term “bona fide” as follows:

A bona fide applicant for temporary entry is a person who:

a. genuinely intends a temporary stay in New Zealand for a lawful purpose; and

b. in the opinion of an immigration officer is not likely:

i.to remain in New Zealand unlawfully; or

ii. to breach the conditions of any visa granted; or

iii. to be unable to leave or be deported from New Zealand (see E5.10).

Therefore, INZ concluded that our client was not bona fide because she previously worked in breach of her visa conditions and would likely breach the conditions of any visa granted.

The Strategy

At that point, I realised the only way to win this was to think outside the box and set my own topic to respond to INZ’s concerns. The first step was to obtain the client’s file from INZ to understand their assessment of her application so far. The second step was to identify the applicable law, immigration instructions and any other source to see if there was a way to tackle INZ’s bona fide concerns.

Following my research, I found that INZ was required to assess the applicable instructions for the visa category my client applied under before they could assess the bona fide criteria. We directed INZ to assess the Partner of a Worker visa category criteria before the bona fide criteria to ensure that due consideration is given to our client’s personal circumstances and the other factors impacting the assessment of bona fides. The substantive application criteria can also be important for assessing the relevance and weight of each of the factors set out under the bona fide criteria.

We also directed INZ to important aspects of our client’s situation that could mitigate the risk of breaching future visa conditions. One of those factors was that our client was applying for a Partner Work Visa. If the visa was granted, it would have open work conditions. Whereas, if she applied for an Essential Skills Work Visa or another Visitor Visa, there was an associated risk of breaching the conditions of those visas. Therefore, the risk of breaching any future visa was reduced by the visa category my client applied under, which was Partnership and not a job-based Work Visa.

Lastly, following my review of the client’s notes held on her immigration file, it appeared that INZ had previously assessed her to be a bona fide applicant several times. INZ’s file assessment appeared to be inconsistent with the evidence that my client provided. In fact, INZ failed to distinguish fact from opinion, which is a breach of the principles of fairness and natural justice set out in the immigration instructions. A1.15 requires INZ to:

  • consider all the facts, keeping an open mind towards all relevant forms of evidence; and
  • distinguish fact from opinion, rumour, allegation, assumption or report; and
  • apply relevant immigration instructions.

In my client’s case, it was clear that INZ was not keeping an open mind to all the information and evidence provided. INZ made various assumptions doubting the credibility of my client’s relationship with her partner. I pointed INZ to its own earlier assessment notes stating that she was in a credible and genuine relationship.

Based on the above approach, it was easier to address the bona fide criteria that my client needed to meet, setting aside the breach of visa conditions. INZ was able to give due consideration to her circumstances, assess the relevant instructions, and weigh the bona fide factors that applied to my client. As a result, INZ approved the Partner Work Visa application, where it had appeared at first that they were strongly predisposed to declining it.

Moral of the story

I learned that no matter how complicated the situation is, we can still win by thinking outside the box. Conducting proper research and setting the terms of our own argument to respond to INZ’s concerns can help make a good case for our clients. In other words, we can redirect INZ to look at the case from a different perspective, rather than being confined by the rules of engagement INZ set out in their assessment. 

If you or someone you know face a similar situation, let them contact us. We can help identify the options and provide them with the right guidance to achieve their goals.

Posted in Immigration Visas | Leave a comment

Engineering an Elite Migrant Workforce

The Government is shifting many levers in what it calls the Immigration Reset. A lot of what has now been put in place, and what is to come, clearly has the objective of wiping out what is perceived as a migrant underclass. In this narrative, overseas workers are poorly paid and poorly treated. They need to be saved from employers who can’t be trusted to behave decently with their staff.

I’m not convinced that shifting the burden of compliance onto employers is the answer. This is certainly what the new Accredited Employer Work Visa scheme does. As explained in a previous blog, it is a 3-stage system – employer accreditation, the Job Check and the individual’s application for a visa. Two of those steps belong to the employer. It has been said by INZ that getting accredited first time around should be simple enough, although as the scheme’s online portal only opened on Monday this week, we have not had time to evaluate if this is the case, or even tell employers what to expect in detail.

As with a lot of regulation, the bad behaviour of a minority means that everybody is loaded with extra rules and bureaucracy. Businesses that are still recovering from lockdowns, disruptions to their business, the increasing cost of credit and a non-existent labour pool have been handed another barrier to recovery. And this is just at the time when we might hope that overseas workers will be coming back to fill some painful gaps. The talk of “well-being” does not seem to extend to small- to medium business owners who create jobs and taxable income.

Now, I’m not on the front line of MBIE’s Labour Inspectorate or Immigration New Zealand Verification and Compliance. Maybe things are that bad. A 2019 study into the exploitation of temporary migrant workers from 2019 found that deception and coercion of those on Work Visas is more widespread than many from the business sector believed. Parliament’s Education & Workforce Committee commissioned an enquiry into migrant exploitation last October, although it doesn’t appear that its conclusions have been published yet. Still, some of what is being done about this doesn’t quite sit right.

Let’s Price Migrants out of the Gutter

One tool that the Government is evidently using to eradicate the perceived migrant underclass is through the salary settings in the new Accredited Employer Work Visa scheme (“AEWV”) which is opening in stages right now. From 4 July 2022, all employers wishing to support non-New Zealanders to apply for a visa must get accredited. For most occupations, they must also pay at least $27.76 per hour or the annual salary equivalent. This figure is the national median wage.

Think about that. The median wage is at the midpoint of all the wages being paid to people around the country. Among the general population, the same number of people get paid below the median wage as get paid above it. This means that all migrant workers on job-based visas are to be paid as well as, or better than, half the rest of New Zealand. Sounds to me like we’re creating a super-class of overseas workers who, statistically, will all do better financially than a substantial portion of the citizen or resident population.

This could create some workplace tensions. In the past, employers who needed migrant workers but who didn’t pay everyone at the median wage, for whatever reason, could simply take people on at the same rate as their other staff, on the mutual understanding that they might only be eligible for a 1-year visa at a time. Now, if they want to hire anyone from overseas at all, they are compelled to pay them more than New Zealanders doing the same job, just to be allowed to employ them. This has probably already been the case in some situations, but it will become more widespread and could fuel the sort of resentment which overseas workers really don’t need.

A left-leaning administration favours improving the conditions of the labour force, so that finding ways to lift wages is naturally on its agenda. There’s nothing wrong with that – in fact, the way inflation is going, wages will have to rise a whole lot more in the next couple of years just to keep up. The point here, though, is that if everyone’s pay goes up across the board, the median wage goes up too. And overseas workers will always have to be paid above that level, no matter how high it goes.

This blanket approach to migrant wage settings ignores regional differences in pay. People working in small towns may not necessarily get paid as much as those in Auckland or Christchurch, because the cost of living in lower (especially housing). Businesses may not earn as much income if they are serving a small or rural market. There has been quite a bit in the media about how the smaller centres are suffering from lack of workers. The effect of this scheme will either be to discourage businesses from hiring – and perhaps downsizing or shutting down entirely – or will squeeze their margins even further after a couple of years of doing it tough through the rocky COVID-19 road that we have travelled together.

Other Options – Sort Of

Certain jobs do not have to pay $27.76 per hour. Among this fairly short list are welders, rest home caregivers and cafe workers, all of whom we need to encourage. Even then, there is another bottom threshold of around $25.00 per hour; and the lower setting for hospo workers only runs until May next year. Is it believed that, somehow, by then we’ll have a batch of keen Kiwis ready to swing on trays and lattes, or a fresh influx of backpackers from Europe once the word gets out that the borders are open again? The first option is not likely, and the second simply means that cafes and restaurants will go back to hiring those on working holiday visas and subjecting them to just the sorts of exploitation which this policy was meant to knock out . . .

Now, open Work Visas are a safety-valve. These allow people to work for whomever they like, such as those sponsored by a New Zealand partner, or those who qualify for a Post Study Work Visa after completing a NZ qualification. Sometime in 2023 – we don’t know when – people on Post-Study Work Visas will only be allowed to work for accredited employers. At present they get a 3-year visa if they finish their degree, for example, which lets them work for whoever they like. This gear-shift will significantly limit their choices about who to work for.

The official line for a long time is that we need to wean ourselves off low-paid overseas workers, upskill New Zealanders and improve conditions for all in employment. The first of those premises is fundamentally flawed at a time when unemployment is at an all-time low. And there are quite a lot of jobs that New Zealanders just don’t want to do, no matter how many training incentives might be waved their way. Certainly, drawing a black line under the median wage as the criterion for hiring a migrant is – I’m afraid – a crude solution which might solve one problem but will create others.

Posted in Business, Immigration Industry, Immigration Problems, Immigration Visas | Tagged , , , , , , , | 3 Comments

Partnership applications: the requirement to be living together

The Lawyers at Laurent Law are frequently asked to assist with bringing a partner to New Zealand. Now the New Zealand border is gradually re-opening, many family members including partners of New Zealanders are able to be reunited in New Zealand.

I have previously prepared a short video on Partnership Visas, which you can find here.

This new written blog focusses on the requirement to be “living together”. This can be a “catch-22” for many people because;

  • an overseas partner cannot get a Partnership Visa unless they are living together with a NZ citizen or resident; but
  • an overseas partner cannot live together in NZ with a NZ citizen or resident unless they can get a Visa

Partnership Visa applications are sometimes straightforward but often they can be more complicated.

The key requirement for Partnership Visas = living together

The key requirement in all applications for Visas based on partnership, is that the applicant is living together in a genuine and stable partnership.

Immigration New Zealand is strict about the requirement for a couple to be living together, so that if a couple are not or have never lived together, our advice is likely to be that the overseas partner’s Visa will be declined.

If a couple has never lived together, our advice if they want to get a Visa for New Zealand, is that the couple must start living together.

What does “living together” mean?

Living together means sharing the same home. However, Immigration Instructions make clear it does not include;

  • time spent in each other’s home while still maintaining individual residences
  • shared accommodation during holidays together
  • flatmate arrangements

Sometimes the line between what is and is not living together can be difficult to draw.

Citizens of Visa-waiver countries: starting to live together

Visa waiver countries are those where a national of that country can travel to New Zealand to visit without first having to apply for a Visa. They tend to be those that are similar to New Zealand. They include most of Europe, North America and parts of Asia.

From 2 May 2022, the border reopened to allow Visa-waiver people to come back. In the case of couples who have never lived together, for overseas partners who are citizens of Visa waiver countries, living together can be facilitated by coming to New Zealand and being granted a 3 month Visitor Visa on arrival. For instance, they may be a young couple that met overseas while travelling, Another method for those aged under 30 from certain countries is to apply for a Working Holiday Visa.

Once the couple have lived together for close to 3 months, they can file a Partner Work Visa application. Once that application has been filed, the overseas partner will get an Interim Visa until a decision on the Partner Work Visa is made.

If the couple has not lived together before, the first Partner Work Visa will only be granted for up to 12 months. An application for a second Partnership Work Visa is likely to be required in order to establish the 12 months living together required before a Partnership Residence application can be filed.

In many situations, if an overseas partner wants to come to NZ and apply for further Partnership Visas once in NZ, it can be safer to file an application from overseas for say, a 9-month Visitor Visa. This will not only give a longer period of time to live together before the Partner Work Visa need to be filed, but it can prevent difficult conversations with border officials on arrival about what the true purpose was for visiting New Zealand. If it becomes apparent on arrival that a visitor’s real intention is not to visit but to live together with a New Zealand citizen or resident, they risk being denied a 3 month Visitor Visa and refused entry permission for not being a “bona fide” applicant.

Citizens of non-Visa Waiver countries: starting to live together

This is the most difficult category of person to get a Partner Visa for, because;

  • initial living together in New Zealand cannot be facilitated by the grant of a 3-month Visitor Visa on arrival
  • Immigration New Zealand will often hold concerns about an applicant’s “bona fides”. This is due to the fact non-Visa waiver countries tend to be less desirable places to live compared to New Zealand and Immigration New Zealand can be concerned an applicant will overstay their Visa and not return to their home country if further Visa applications once in New Zealand are declined.

To be in New Zealand, citizens of non-Visa waiver countries must prepare and file a Visitor Visa application from overseas. If a couple has never lived together, a good outcome is a 9 month Visitor Visa. The couple can then live together in New Zealand and file further Partnership Visas.

To satisfy Immigration New Zealand of an non-visa waiver applicant’s bona fides, additional documents and forms are needed, which make the process more complicated and time consuming. The applications are difficult but not always impossible. In recent years, we have successfully assisted applicants from countries such as Papua New Guinea, South Africa and Iran.

In some cases it may be too difficult to get the overseas partner a Visa to start living together with the NZ citizen or resident in NZ. In these situations, the NZ citizen or resident may need to go to the overseas country to live together with their partner there, before applying for a Partner Visa. This may mean giving up employment to New Zealand and going to live in a country that is not safe. Clients must be committed to the process.

Couples who have lived together overseas (visa waiver or non-visa waiver countries)

In some situations, the couple may have lived together overseas. If they have already lived together for 12 months overseas (e.g. the couple may be more mature in their years), a Partner Work Visa may be granted for 24 months. This makes applying for Residence easier, as a second Partner Work Visa will not be required while a Residence application is in process.

If a couple have lived together overseas for more than 5 years, an application directly for Permanent Residence may be possible. There are some differences between Residence and Permanent Residence, which I have written about previously here.

Conclusion

Because a couple must be living together in order to be granted a Partnership Visa, there can be multiple steps, in getting the overseas partner from holding just a Visitor Visa, to a Work Visa, then to Residence.

Periods of not living together (periods of separation) within a longer period of living together can be acceptable to INZ, provided there are “compelling reasons” for the period of separation. Reasons for any periods of separation need to be clearly explained as part of an application, to ensure the application has the best chance of success.

It is not always straightforward. Please feel welcome to contact us to find out if we can help.

Posted in Immigration Visas | 2 Comments

Success Story: How NZ Resident Family Avoided Deportation

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Earlier in the year, I wrote a blog on deportation liability, particularly if the person liable for deportation is a New Zealand Resident Visa holder. Today, I share a successful outcome for a family where the Immigration NZ (INZ) Resolution team decided not to pursue deportation action.

Case Overview

The background was complex, but we will give you a brief summary. We were approached by a family who secured New Zealand resident visas in 2020. The main applicant included his dependent child in the resident visa application. To include a dependent child in a resident visa application, the child must be single, under the age of 25 years, have no children of their own and be financially dependent on an adult for support.

Two years later, that child supported her partner’s application for New Zealand. With the partner visa application, they provided INZ the date when the relationship began. INZ realised that the dependent child was in a relationship with her partner when she was granted a NZ Resident Visa. If INZ had been made aware of her relationship during the residence application process, she would not have been considered a dependent child to be included in her father’s residence application. Therefore, INZ determined that relevant information was concealed during the residence application, because the family recorded their dependent child as “single” when she was not. As a result, the whole family included in the initial resident visa application became liable for deportation under Section 158(1)(b)(i) of the Immigration Act 2009.

INZ’s Resolutions team sent a letter to each family member stating that it was considering serving each of them with a Deportation Liability Notice. They were invited to comment on why this should not proceed. At this point, we were engaged to put the family’s case forward.

Our approach

As mentioned in my earlier blog, providing false and misleading information to INZ has serious consequences whether you are a temporary visa holder or a resident visa holder.

In our client’s case, it was not an easy task. We had to ask them the right questions to understand how and why the dependent child’s relationship was concealed from INZ during the residence application process. For example, getting the exact date that INZ issued the resident visas to the family; the start date of the dependent child’s relationship with her partner; and the family’s knowledge of that relationship when INZ issued the resident visas. Such information enabled us to determine how we will approach INZ Resolutions to decide in our client’s favour.

After what we learned, it appeared to us that the couple was merely dating. They entered the relationship in the belief that it would end once she left her home country for New Zealand. The dependent child’s partner provided her with emotional support during the country’s lockdown. They did not enter the relationship “with the intention of it being maintained on a long term and exclusive basis”, which is one of the tests used by INZ to work out if a couple’s partnership can be recognised for visa purposes. It also appeared that they only decided to be together after the child arrived in New Zealand and told her family months later about the relationship. After she got here, the couple both realised that what they had had during lockdown was real and not just a casual fling. They maintained communication with each other; she then informed her family about him. It could be said that the relationship would have only started after the child was granted residence.

We asked the clients to provide detailed explanations of what happened and acknowledge the mistake made, even if it was unintentional. The couple’s honest declaration of the start date of the relationship by reverting to when they initially started dating (i.e., before arriving to NZ) added credibility to their case. Continuing to mislead INZ, fearing something like this, could have led to a negative outcome. Therefore, it was important for us to explain to INZ Resolutions the full story, each individual’s knowledge of the partnership, and why the child was declared single when INZ issued the Resident Visa.

We then looked at the family’s circumstances and the consequences of their deportation. For instance, we collected extensive documentation about their employment in New Zealand, family connections, character references, and contributions to the New Zealand community.

When INZ Resolutions receives comments and supporting documents in reply, they will prepare the file and briefing notes for a Delegated Decision Maker – or in some cases the Minister or Associate Minister of Immigration – to review the case and decide whether to:

(a) issue a deportation liability notice; or

(b) cancel the deportation liability notice; or

(c) issue a deportation liability notice but then suspend deportation for a specified period of time.

In the current case, Resolutions concluded that, based on the information provided to them, there were insufficient grounds to pursue deportation liability in this instance.

The moral of the story is that it is important to be honest with INZ in all your visa applications. Read the application questions wisely, and do not make assumptions even if it relates to your family members’ partnership status. If your dependent child is living with you, this does not necessarily mean that your child will meet the definition of a dependent child as stipulated in Immigration Instructions. If you are the main applicant and plan to include family members in your residence application, ensure you ask them the questions in the application form that relates to them. For example, this may be about the child’s employment history, character history or partnership status. There could be serious ramifications due to making a wrong declaration on a resident visa form, even if it relates to another family member.

If you or someone you know becomes liable for deportation or needs assistance with their case, please contact us for professional help.

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First Look at Accredited Employer Work Visa Rules

Immigration New Zealand has just released its Instructions about how companies apply for Accreditation to the immigration industry. They look challenging.

It is the culmination of a long-running saga. Three years ago in early 2019 I wrote a blog about this new policy that was meant to be just around the corner. Then in May 2021 I told everyone “Here it comes”. We’ve finally turned the corner and it has come – well, almost.

Timetables keep sliding back. A short while ago we thought that employers could apply to be accredited from 5 May. Now the start date is Monday, 23 May. At the time of writing we understand that people can apply for a visa to work for an Accredited Employer from Monday, 4 July. That is, of course, assuming any businesses will be accredited by then.

Flavours of Accreditation

There are 2 main types of Accreditation to go for:

  • Standard: this is for companies who want to hire up to 5 migrant workers “at any one time”. That is, once they have their 5 people on the books they cannot take any more until one of the visa holders leaves. Some interesting workplace tensions to think about there, such ass an employer constructively dismissing someone on a Work Visa so that they can take one someone else whom they think is better.

Alternatively, the employer could apply for . . .

  • High Volume Accreditation: if they wish to employ 6 or more migrants at any given time. The standards for accreditation were meant to be tougher, but it turns out that the Government hasn’t worked out what those rules will be yet, so the requirements are the same for both types, except

a. Triangular Employment Arrangements: where an employer assigns someone to a job in a “controlling third party” (CTP) business. Examples are labour hire companies and even business secondments of technical or managerial personnel. The original employer takes on a number of ongoing obligations which may make this kind of arrangement too onerous, unless hiring out staff is their core business.

b. Franchisees; who must have been in operation for at least 12 months.

In both these cases. at least 15% of the company’s full-time staff must be NZ Citizens or Residents..

What’s Involved?

A business applying for accreditation must jump through the following hoops:

  1. Are they a genuinely operating business? This mostly revolves around proving financial soundness, including requirements to have either recorded no losses in the last 2 years, or have had positive cashflow in the last 6 months. A number of businesses will struggle to meet these criteria as they recover from COVID lockdowns. Fortunately, a business can also meet this standard by showing that it is well capitalised by a parent company, or has a credible financial plan for the next 2 years. However, getting through on this last option will probably need to be very well documented to convince someone at Immigration that the business will survive and pay wages;
  2. Must provide settlement support services: Employers will have to set up systems and documentation to show that they provide information to new migrant employees on everything from specific health and safety hazards on the job, to local accommodation and cost of living. I foresee a whole new industry opening up for consultants to sell packages to employers so that they can appear to be compliant. The employer must also give sufficient paid time off in the first month for a new employee to complete Employment NZ’s online employee modules;
  3. Compliance with immigration, employment and business standards: This means that the business must not be blacklisted by Immigration for having committed employment or immigration offences, or having employed people who did not have the right visa, or if any of the directors is prohibited from running a company owing to breaches of the Companies Act.

    There is more to all of these requirements, but not enough space to set them all out.

How to Apply

You are meant to apply for Employer Accreditation online. At the time of writing, the application platform has not been opened for users to find out how it works and what is expected by way of questions and supporting evidence.

Immigration has stated that it expects to process employer applications in something like 10 working days. As we have yet to see how many businesses will apply – and it could be over 10,000 – this timeframe seems entirely speculative.

If an application is declined, you can request a reconsideration within 14 days of the date of decision. It is possible to submit new evidence which was not provided before, but a visa officer is not required to look at it, and can instead decide that the employer should file a new application.

All initial Employer Accreditations will last for only one year. After that, Accreditations will be granted for two years at a time, although triangular arrangements and franchises can only get one-year renewals.

The Bottom Line

. . . is, in my view, that employers using migrant workers should think hard about whether it is worth continuing to do so. While the Government has claimed that it wants to make accreditation a smooth process, it does not look like that right now.

It is still not clear whether people who can finally get Accredited Employer Work Visas will have a pathway to Residence. If they do at all, they will have to be paid over $112,000 p.a. salary, accordingly to what we have been told so far. This means that retaining good people long-term will be a challenge and require a lot more ongoing work.

Businesses who want to use overseas people should instead consider hiring those on Post-Study Work Visas which allow graduates to work for whoever they want, or who are on Partner Work Visas. A downside with this is that these people do not necessarily have certainty of a permanent future here either. This is the brave new world of employer-assisted visas.

Posted in Immigration Visas | Leave a comment

The situation in Ukraine: can I help my family?

The world has been shocked by the terrible things that Russia is inflicting upon Ukraine. Even though New Zealand is a long distance away, we are not immune from the impact. For example, the war in Ukraine has been given as one of the reasons why petrol prices are so high at present. This is having a significant impact on many ordinary New Zealanders.

At Laurent Law we have heard the cries for help too, by being approached by New Zealanders who have family in Ukraine, asking us how we can assist to bring the family to safety in New Zealand.

When we first received these enquiries, we had to say that applicants must qualify under one of the existing Visa categories. A few months ago my Principal, Simon Laurent, wrote a blog explaining what these are. If a family member in Ukraine did not fit the usual criteria for a Work or Student Visa, the only way they could come to New Zealand was to make a request to the Minister of Immigration for special intervention. In practice, the existing categories provided few options for family in Ukraine and the outcome of a request to the Minister of Immigration is quite unpredictable.

DEDICATED TEMPORARY VISA

However, as of Tuesday 15 March 2022, we now have a dedicated Visa category – the “2022 Special Ukraine Visa” – which allows New Zealanders who have family in the Ukraine to sponsor them to come to New Zealand. In order to act as a sponsor, you must;

  • be a New Zealand citizen or the holder of a current residence class visa
  • be ordinarily resident in New Zealand
  • have been born in Ukraine, or have held citizenship or be a permanent resident of Ukraine, and
  • be an acceptable sponsor for a temporary visa (for example, have sufficient funds to support the person you are sponsoring)

The process of applying is demonstrated by the following diagram. The INZ 1371 Expression of Interest form can be downloaded here.

The process is not too difficult to understand and we are confident that many New Zealanders with family in the Ukraine will benefit from the new category. The following family members can be sponsored;

  • parents
  • grandparents
  • siblings
  • adult children

Each of the above can also include their partners and dependent children. It does not appear that Medical and Police Certificates need to be provided – this is reasonable given the difficulty of obtaining such documents in a war zone. However, Immigration Instructions require an Immigration officer to be satisfied that the “information available” does not indicate any health or character issues.

Only the above listed relationships to family members will qualify. For example, you would not be able to use the process outlined to help a friend or work colleague. We have had some enquiries from New Zealanders wanting to support Ukrainian citizens despite having no family connection to New Zealand. Unfortunately the response to this has to be, again, that the person must apply under existing Visa categories, or if there is some other special circumstance that can be identified, a request for special intervention to the Minister of Immigration.

The Immigration Instructions relating to the Special Ukraine Visa are “restricted”. This means that Immigration Officers must apply them exactly as they are worded. They have no freedom to make any exceptions.

If you have family in the Ukraine and you are looking for a way to help them, please feel welcome to contact us.

WHAT ABOUT OPTIONS FOR RESIDENCE?

Government and Immigration New Zealand have so far been silent on the ability of Ukrainian family members to stay in New Zealand long-term i.e., beyond the 2 year Temporary Visa provided for so far. The existing Visa categories do not necessarily cater well to many Ukrainian citizens wanting to apply for Residence.

If Government does not make a further announcement in due course about a dedicated long-term category, and if the situation remains unstable in Ukraine in the future, Ukrainian citizens in New Zealand will then be in a difficult position at the end of the 2 year Temporary Visa. The way things stand, they must return to Ukraine. The writer suggests that it would be incredibly harsh to allow Ukrainian citizens to come on Temporary Visas only to force them to return to what could be still an unstable war zone after the 2 years has passed.

If they decided to stay on, they would eventually become overstayers. Maybe they could succeed in an appeal against deportation liability on humanitarian grounds. Facing being deported away from family to a war zone would likely meet the high legal test required for humanitarian appeals to be successful. Even so, the sheer volume of people displaced from Ukraine – even now it is in the millions – may not make their situation “exceptional”. Their ability to secure a right to remain could well turn upon the strength of family ties to New Zealand, or other circumstances which put their case into the realm of the unusual or rare.

Alternatively Ukrainians may try to claim refugee status, because their government cannot protect them from serious harm during a state of war. Unfortunately, unless they can show some reason that they would be targeted over and above the rest of the population, they will not be recognised as refugees. However, they might obtain complementary protection owing to fear of death or of “cruel, inhuman or degrading treatment” at the hands of the invaders. This is available by application of the ICCPR, as the key elements of Articles 6 and 7 have been brought into the Immigration Act 2009.

Posted in Immigration Industry, Immigration Problems, Immigration Visas, Refugees | Leave a comment