Opportunity Knocks – But Is New Zealand Answering?

The COVID-19 pandemic is creating economic mayhem internationally, and New Zealand is not immune. At the same time, the international crisis has made this country an increasingly desirable destination – especially to wealthy foreign investors. But there is real danger that lack of administrative resources and attention will deny New Zealand the chance to take full advantage of a much-needed inflow of cash.

Do We Need the Investors?

A couple of months ago I was one of those who highlighted a surge in interest in NZ by wealthy migrants, especially from the USA. More recently, Business NZ has argued that a specific border exemption for high-net-worth investors is needed, in order to encourage the funds to flow into the local economy. It has been suggested that some $2 billion in potential investment funds is tied up in Investor Visa applications which are still in process. As you will see, this is not far wrong.

The need for economic stimulus is clear, with New Zealand heading into a very significant recession. Some have argued that allowing wealthy foreign migrants to buy their way in does not actually deliver the sorts of benefits that we might want, such as boosting industries that create jobs. Investors are characterised as having put their money into bonds or passive property, rather than providing capital to be used by local companies.

That last comment is derived from an article from Stuff in April 2020. It was partially based on some MBIE research from 2013-2014. However, there are a couple of reasons to be sceptical about this view. The first is that Investor policy settings were changed in 2017 to create incentives for “growth investments” – that is, almost anything other than bonds and charities. It’s not clear that this has brought about a seismic change in investor behaviour, but most clients we have dealt with have eyed the benefits of growth investments with interest. These include relaxation of the “time in NZ” requirements and a reduction of the amount an Investor 2 client has to tie up (which is, by default, NZ$3 million for 4 years).

Perhaps more crucially, an MBIE source has observed to me that their own tracking of investor outcomes indicates that those who secure Investor Residence will, on average, end up bringing at least 3 times more into the country than they originally needed to in order to secure a bare Resident Visa.

Thirdly, as argued by a colleague in a report from August 2020, it’s not just the quantity, but also the quality of interested investors, that is so striking about the wave of applicants for Residence. We ourselves have been approached by clients for whom the $10 million Investor 1 requirement is small change. Furthermore – and this applies to those from the US in particular – they include an increasing number of capable entrepreneurs whose interest is in new ventures and new technology. The small, nimble New Zealand market has for some time been the test-bed for leading edge developments. There may be real attraction in funding and supporting local businesses which are taking leading roles in areas such as biotech.

However, creating a border exemption for investors is probably not addressing the core issue. As I have explained in a vlog published during the first Level 4 Lockdown, the investor process takes years, rather than months. An applicant who is issued an Approval in Principle is given 12 months to transfer and invest their funds, and that period can be extended. This large window is provided so that people can liquidate their assets, bring them into the New Zealand jurisdiction, and settle upon where they want to place them. They are likely to have personal affairs and assets that they need to settle before making that move.

If we consider that current border restrictions are likely to remain in place for perhaps another year, but probably not for more than 3 years, getting a border exemption may not be so critical for those who wish to travel down the Investor Residence route now.

The Numbers

More important, in my view, is directing more resources to processing the large number of Investor applications currently with Immigration New Zealand’s Migrant Investor Team. For a time, cases filed by offshore applicants were not being processed at all owing to a blanket approach to most visa types. However, processing has recently restarted. Still, as with many visa categories, this has inevitably built up a backlog.

Since the end of April 2020, the number of Investor applications “on hand” has increased from 918 to 1215, or 32%. The Investor 1 list has grown in the same period from 228 to 444, or 95%. If we assume a $10 million investment from each applicant, and only 50% are finally approved, then $2.2 billion of potential investment is locked up in an office in Wellington. That is no fault of the visa officers. There just may not be enough of them.

There could be ideological and social resistance to inviting more rich people into New Zealand. We just have to get over it. I have had multiple enquiries from local business owners , in manufacturing in particular, who are looking for capital from offshore. But they also want to tap into the expertise of active investors who have made their money from growing similar businesses; and who often are very keen to share their knowledge and get involved with a similar Kiwi enterprise.

Encouraging overseas investment has been important to this country for a long time. It is even more vital now, in order for New Zealand not just to survive, but to thrive in a world facing some dark days ahead.

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

Success Story: Avoiding Deportation and Family Separation

The year 2020 has been the most challenging in decades. With all the covid-19 issues of 2020, I believe there is nothing better to share than a success story of uniting a couple after Immigration NZ (“INZ”) almost tore the family apart.

A kiwi mother of two children approached us for assistance after INZ declined her husband’s resident visa and partnership work visa applications on character grounds. As a result, the husband became unlawful, facing deportation and at risk of being separated from his wife and children.

Background

The background was complex, but we will provide you with a brief overview.

The husband is an Afghani citizen who lived in Pakistan and arrived in New Zealand on a Visitor Visa in December 2015 to marry his now New Zealand wife. They married in January 2016, and they have since had two New Zealand-citizen daughters. The elder daughter is two years of age, and the younger daughter is aged 11 months.

In October 2018, he made his application for residence, which was supported by his wife. He declared that he had no convictions. INZ received clear police certificates from New Zealand and Afghanistan. However, he was required to produce a police certificate from Pakistan as he lived there for several years. He asked a family friend to get the police certificate from Pakistan. INZ made enquiries with the police station said to have issued the police certificate. The station advised INZ that the document was a forgery.

INZ said that because he produced a forged document, he would not normally be granted a residence class visa unless granted a Character Waiver. INZ considered it more likely than not that he had provided a forged police certificate. INZ did not believe the husband’s explanation that he did not know how to obtain a police certificate, because he was given information on how to obtain one.

In a situation like this, even if he did not know that the police certificate was fraudulent, he is responsible for any documents provided to INZ. 

In the Character Waiver request, INZ were asked to weigh the fact that the wife and the children were lawfully residing in New Zealand. The husband had strong ties to New Zealand, and it would not be safe for his family to relocate to Afghanistan, if he had to return, due to instability in the region. His wife would struggle to care for them without his support because of her compromised psychological health. The husband provided evidence that he applied for a police certificate via the correct channels which he did not receive by the time INZ decided the application. However,  INZ’s main concern was that, because he had not been lawfully in Pakistan, he could not get any government documents such as police certificates. It speculated that he may have been aware of that fact and so that is was why he had decided to provide INZ with a forged police certificate.

Applications Declined

In its conclusion, INZ focused on the forged evidence which had been produced and concluded that this outweighed the positive factors that existed. INZ declined both the residence application and the partnership work visa application on character grounds.

We submitted two appeals on behalf of the husband with the Immigration and Protection Tribunal (“IPT”):

  • A Residence Appeal against INZ’s decision to decline the residence application; and
  • a Humanitarian Appeal against his liability for deportation, as he had become an overstayer.

The Residence Appeal

In the Residence Appeal we presented legal arguments identifying the flaws in INZ’s Character Waiver assessment. Mainly, INZ failed to go through this exercise in a fair and balanced manner. We agreed that the husband had not followed the correct process in obtaining the police certificate. However, in the meantime he had applied for and received a new and valid police certificate through the correct channels.

The IPT agreed with INZ that the provision of the false document was serious. However, the IPT also agreed that INZ’s Character Waiver assessment was flawed for the following reasons:

  • INZ conducted a “Cursory” assessment of the positive factors. It failed to assess the independent medical evidence that had been produced as to the nature of the wife’s health difficulties and the impact that her health challenges had on her life;
  • INZ appeared to accept that the wife could not reasonably be expected to relocate to Afghanistan in the event that he had to return. However, it then failed to expressly recognise that the effect of the husband returning to Afghanistan without his family would be, in all reality, a permanent separation of this family unit. No regard was given to what would be in the children’s best interests which had to be treated as a primary consideration;
  • The husband’s continued presence in New Zealand and support of his wife and children was of real importance to the functioning of the family unit, and it impacted on an assessment of his potential contribution and the strength of his ties to New Zealand;
  • INZ did not engage in a proper weighing and balancing of the various factors for and against the grant of a waiver that existed.

The Residence Appeal was successful and the application was returned to INZ for a correct assessment, including verification of the new police certificate.

The Humanitarian Appeal

The IPT found that the prospect of deportation of the husband before he had the Character Waiver assessment done properly by INZ for his residence application, made for “exceptional circumstances of a humanitarian nature”.  The IPT also accepted that there was a public interest in the protection of the family unit and ordered the grant of a 12-month work visa to the husband. This would allow him to remain here for the time being while his residence application is reassessed and to seek work to support his family and also to plan, along with his wife, for their family’s future.

This was a great outcome for the family. They now have an opportunity to get the residence application correctly assessed by INZ, and a valid visa for the husband to resume employment and continue to support his family. The family unity has been preserved for the time being.

What we have learned?

Not every client has a perfect story. Some clients may have made mistakes during their application process, or may have not had appropriate representation.  In the above scenario, our client did not apply for the police certificate through the appropriate channels and was responsible for the documents provided to INZ. His former representative did not obtain the correct information or documents on his status in Pakistan.

But this does not mean we cannot help.  Our role as immigration specialists is to move up a gear, and find a solution.  It’s all about transparency, dig deep and lay out all the facts on the table. This includes identifying facts which the client may not see as important or relevant, and then help to fix their mistakes when possible.

Don’t be afraid to seek professional assistance when needed. Contact us if you or someone you know is in a similar situation.

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

Bringing your cat or dog to New Zealand

Usually here at Laurent Law we assist human beings with their immigration questions, concerns and problems, but you may be interested to know there is also quite a detailed process for cats and dogs to be able to come to New Zealand too.

The Ministry for Primary Industries regulates the import of animals to New Zealand.

The focus of this blog entry is on the process for importing cats and dogs. There are other processes in place for importing other types of animal to New Zealand, for example horses, farm animals and zoo animals.

Other than cats and dogs, only three species of animals as pets can be imported to New Zealand, these are;

  • chinchillas from Great Britain
  • rabbits from Australia
  • guinea pigs from Australia.

Some species of fish can also be imported, but there is a different process.

There are three categories of country or territory which cats and dogs can be imported from. These are

  1. Australia
  2. Rabies-free
  3. Rabies-absent or well controlled

Rabies is a viral disease that causes inflammation of the brain in humans and other mammals. Rabies is usually spread through a bite of an infected animal. It almost always results in death. There is good reason to keep animals with rabies out of New Zealand due the health risk it poses. New Zealand has long been rabies-free.

Countries that are rabies free include; Japan, Singapore, most Pacific Islands

Countries that are rabies-absent or well controlled include; the UK, the USA, Canada, France, Germany, South Korea, South Africa, Hong Kong and the United Arab Emirates.

The Ministry for Primary Industries website contains a full list of the countries that fall into each category. If a cat or dog’s country is not on one of these lists, it cannot be imported into New Zealand.

To be eligible for shipping to New Zealand, cats and dogs must be:

  • a domestic cat or dog
  • not be more than 42 days pregnant
  • not a hybrid (offspring of cats crossed with another species), except for Bengal cats
  • be of sufficient age – for cats and dogs from Australia, more than 8 weeks old and weaned; for cats and dogs from rabies-free countries, more than 12 weeks old; for cats and dogs from rabies absent or well controlled countries, more than 9 months old.

Some types of dog, which can be aggressive in nature, are prohibited under the Dog Control Act 1996;

  • Brazilian Fila
  • Dogo Argentino
  • Japanese Tosa
  • Perro de Presa Canario
  • American Pit Bull Terrier

Owners of cats or dogs from rabies free and rabies absent or well controlled countries must apply for an import permit. An import permit costs $NZD220.74. For all cats and dogs, a veterinarian has to certify that the eligibility requirements above are met and inspect the health of a cat or dog prior to travel. Cat or dog owners must declare any medication their pet is taking.

Cats and dogs are transported in the air-conditioned cargo hold of a plane that is temperature controlled and pressurised, like the cabin where humans travel is.

On arrival in New Zealand, cats and dogs from rabies-free and rabies absent or well controlled countries are inspected and must undergo a quarantine period of at least 10 days. Cats or dogs must enter New Zealand either in Auckland or Christchurch, where cat and dog quarantine facilities are located. Cats and dogs from Australia are inspected on arrival but do not need to undergo a period of quarantine. Cats and dogs must be microchipped.

In most cases, cats and dogs, except those from Australia, must reside in the country of export for at least 6 months (or since birth) immediately before the shipment date. If ticks or fleas are found on arrival, a cat or dog must;

  • go to an approved quarantine facility for treatment or testing; OR
  • return to its country of origin; OR
  • be euthanised

Other nasties that the Ministry for Primary Industries has measures to keep out of New Zealand include;

  • canine heartworm. This involves a parisitic roundworm growing in the heart of a dog, which is transferred by mosquito bite and can sometimes infect humans.
  • leptospirosis. This is a blood infection which can spread to humans.

The Ministry of Primary Industries recommends that cat or dog owners contact a professional pet exporter to help arrange tests, treatments, flights, import permits, shipping crates and other requirements. A full list of pet exporters can be found here.

While our specialty at Laurent Law is in assisting human beings with their immigration matters, if you have a cat or dog you want to bring to New Zealand you can contact us and we may be able to assist. We wish your cat or dog safe travels to New Zealand.

Posted in Citizenship, Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas, Practice of Law | 2 Comments

South Island Adventures

After many months of cancelled flights and delays due to lockdowns and travel restrictions, we finally made it down to the picturesque Queenstown. I would go as far as to say that it is the most beautiful place I have ever visited.

We started our journey flying from Auckland to Invercargill and hired a car to drive up to Queenstown. We did a quick detour down to Bluff, where we had a delicious lunch with panoramic sea views at the Oyster Cove (highly recommend).

Our plan was to enjoy a skiing holiday. We were fortunate enough to have 30cm of snowfall the night before we arrived. The drive to Queenstown was magical to say the least.

Although this was not my first time in Queenstown (I doubt it will matter how many times I visit) you cannot help but be in awe of the natural beauty it presents. Not only is this town so visually pleasing but there is so much to do. It makes it very popular with tourists as well as a holiday destination (winter or summer) for New Zealanders looking to get away from the city life.

We had three days in total of skiing. We chose the Cardrona slopes, as I am still a “beginner”. This is said to be the perfect place to practice. By day three I found myself graduating from the beginner to intermediate runs and loving life.  The Cardrona Alpine Resort offer skiing lessons to anyone willing to try it out for the first time.

To end our adventurous week in the South Island, we chose to unwind at the Onsen Hot Pools. Here you get your own private hot pool accompanied with refreshments and snacks, that looks out to 180 degrees of nature. We were lucky enough to book a 5:30pm slot, so that we could enjoy watching the sunset over the snow-capped mountains. This was truly an amazing experience. I have never felt so content, relaxed and full of gratitude. It was the most incredible ending to a magnificent week.

I have put together a video to capture our most memorable moments, I hope you enjoy it as much as we did.

If New Zealand is your choice for work-life balance, be sure to get in touch with us to explore your options to move here permanently.

Posted in Immigration Visas | Leave a comment

Family Separation v Travel Exemption

As we know, the New Zealand border is currently closed to almost all travellers to help stop the spread of COVID-19. There are some exemptions to the closure:

  • If you qualify as someone to whom the border closure does not apply;
  • Immigration NZ consider that you have a critical purpose for travel such as critical health workers, other critical workers and humanitarian reasons;
  • If you are a partner or dependent child of a New Zealand citizen or resident, and your visa is based on this relationship.

However, this still has left many families separated on other sides of the world, facing months being apart, not knowing when they will reunite.

What does this mean for partners and dependent children of New Zealand citizens who do not hold a visa based on their relationship?

If you do not have a visa based on your relationship with a New Zealand citizen or resident, in that case, you will need to apply for a travel exemption if:

  •  you are travelling with your New Zealand citizen or resident family member, or
  • you ordinarily reside in New Zealand.

However, many families are living in limbo trying to get an exemption to unite with their families who are already in New Zealand because they do not meet one of the above exemption rules. Partners are left with the uncertainty of when they can reunite with their loved ones. Some of their stories are heart breaking.

Many partners have attempted to apply for a travel exemption request on humanitarian reasons. Still, they are almost impossible to obtain due to Immigration New Zealand’s strict criteria and lack of transparency.

Humanitarian Exemptions

Obtaining a travel exemption request for a humanitarian reason is no easy route as the bar set is very high. INZ is applying the Immigration and Protection Tribunal’s definition of “exceptional circumstances of a humanitarian nature”. The circumstances “must be well outside the normal run of circumstances” and they need to be an “exception rather than the rule”. Family separation is a natural consequence of the current pandemic, and partners are expected to make their case an exceptional one.

According to Radio NZ’s recent article on 4 August 2020, “as of 30 July, INZ had received 28,081 applications for border exceptions and of those 5763 have resulted in an invitation to apply for a visa.”  That’s about a 20% success rate.

There is also a Facebook Group “NZ Citizens And PR’s Separated from Partners by NZ Border Closure” set up for all partners who are affected by this border closure. The group has over 1.6K members—another method of urging a revisit of the border restrictions and reuniting families.

How does this apply to individual people’s circumstances? Family separation is a distressing situation on its own. Young children have not seen their parents for months and are unable to understand why. Fathers are being denied the right to join their pregnant partners in New Zealand because they do not meet the strict criteria of humanitarian circumstances that are out of the norm. If your request is refused, there is no way to appeal the decision. The criteria for humanitarian circumstances is not black and white, and there are a lot of grey areas.

Partners have been submitting multiple requests on humanitarian circumstances with the hope that one of them will be approved. We are aware of a 7 months’ pregnant NZ citizen who has submitted multiple requests to get her partner to New Zealand for the birth of their child but has had no luck in meeting these strict criteria, despite the emotional impact it will have on her and her young child. There appear to be inconsistencies in INZ’s decisionmaking, where other partners in a similar situation have been approved a travel exemption.

Therefore, it is critical, when you request humanitarian circumstances, to make your case clear. Explain what supporting evidence you will be able to provide if you are invited to apply for a visa.

When making a humanitarian exception, Immigration New Zealand takes into account the following factors:

  • Your connection to New Zealand;
  • Your primary place of residence and your current location, how safe you are wherever you are living, your circumstances back home;
  • How long you have been away from New Zealand;
  • Whether there are alternative options available to you;
  • The impact of not giving an exception.

You must first submit an expression of interest using the online request form. Once your request is submitted, INZ will then conduct a balancing exercise based on the information provided in your request. If Immigration NZ considers that your travel is likely to meet one of the categories for an exception based on the information you submit in your request form; you will be invited to apply for a visa which matches your reason for travel. There is an expression of interest fee of NZ$45 that you will need to pay at the time you submit the request.

Therefore, partners and dependent children of New Zealand citizen can travel to New Zealand if they hold a visa based on their relationship, or they are ordinary residents in New Zealand, or they are travelling together. Suppose you are going to make a travel exemption request on humanitarian circumstances. In that case, you need to put your case wisely and carefully to Immigration NZ taking, into account the factors they will consider. This is a particularly difficult exercise, because you have just 3000 characters (about 300 words) to make your case.

Feel free to contact Laurent Law for assistance on how to approach these travel exemptions.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Work Visas – the Moving Playing Field

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

One Threshold to Rule Them All

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

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

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

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

Those below the line:

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

Ramifications

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

I have a few things to say about that:

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

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

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

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

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

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

Unlawful children and their right to attend school

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

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

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

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

New Zealand requirements

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

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

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

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

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

Criteria to be approved domestic Student Visa

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

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

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

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

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

Application outcome

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

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

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

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Hitting the books – NZ Student Visas

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

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

Can I study in New Zealand?

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

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

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

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

What should I study in New Zealand?

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

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

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

Student Visas and the effect of Covid-19

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

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

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

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

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

How can I get a Student Visa?

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

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

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

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

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Essential Skills Work Visas under Covid-19

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

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

 

Visa Processing of applications under Alert level 2

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

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

 

Availability of New Zealanders / Labour Market Test

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

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

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

Advertising the role

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

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

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

Skills Match Report

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

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

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

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

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

Balancing exercise at the time of assessment

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

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

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

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

 

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

 

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

 

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

 

Genuine and sustainable employment

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

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

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

 

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