Is INZ Trying to Deter Refugees?

In recent months, Immigration New Zealand has required asylum seekers to get Medical and Police Certificates, when they apply for visas to work here while their claim is considered.  As explained in a TVNZ report this week, these requirements used to be waived because of the situation of refugee claimants.  Now they face significant hurdles and delays just to be able to survive in this country.

INZ says that all they are doing is applying the same rules to refugee and protection claimants as for everyone else.  This, however, ignores the practicalities, and the special legal status, of refugee applicants.

A Bit of Law

New Zealand is a signatory to the 1951 UN Refugee Convention, which has been a part of New Zealand law for 10 years.  People who apply may be “recognised” as refugees.  That is, if they are accepted under the Convention, NZ has not given them refugee status – it has merely confirmed a status which they had already acquired because of their background and experiences.  It has been accepted by the Courts that the term “refugee” also applies to someone who has made a claim which has not yet been decided.

A key principle of the Refugee Convention is non-refoulement – a refugee must not be sent back to the country where they fear persecution.  Again, this has always been extended to claimants whose status has not yet been formally recognised, who are still in the process.  Otherwise, a country could be guilty of sending someone back to the risk of death or serious harm, who was actually entitled to its protection.

Medical Certificates

Immigration has always required asylum seekers to be screened for TB, to minimise the risk of that disease spreading.  However, doing the X-Ray was never tied to whether the applicant could get a visa.

The problem with requiring a Medical Certificate before a visa can be granted is that it slows down the process of approval, sometimes by several months.  In the meantime, many claimants may have no visa if they came in without a passport, which happens when they have used a false passport to board a flight here, and have destroyed it before arrival.  Or perhaps they originally entered as a visitor and made a claim after arrival.

The point is that they must remain here in order to get the claim assessed, and to make an appeal if the claim is declined the first time.  If they leave, the claim is automatically cancelled; and many of them only have the home country to return to, where they fear being harmed.

As I said above, NZ cannot deport them while they are waiting.  This means that, even if they have serious health issues, it will make no difference to whether they get a visa or not.  If someone has poor health, they still cannot be removed.  If INZ was to decline their visa for this reason, then all it is doing is making them overstayers, forced to work illegally to avoid starvation.

Police Certificates

The same applies to demanding that refugee applicants get police clearances.  Even if it was found that someone had committed war crimes, they could only be deported if they were found to pose a present threat to national security (admittedly, something which the Government would probably be keen to do in such a situation).  Otherwise, even they would be entitled to have their fear of persecution assessed, before applying Exclusion Clause 1F of the Refugee Convention to decide whether they deserved refugee protection.

Many asylum seekers have fled their home country because they are afraid of the government.  INZ now expects them to ask that government to produce a Police Certificate for them.  Not only does this draw attention to them from the very regime that they fear, it can also heighten the danger for their families and associates back home.  In some states, the very fact of finding out that a citizen has claimed asylum somewhere else increases the danger for them and those close to them.  This is one reason why section 151 of the Immigration Act prohibits disclosure of information about a refugee or their claim, or even the existence of a claim itself, with some very limited exceptions.  One of these is where “there is no serious possibility that the safety of the claimant or any other person would be endangered by the disclosure of the information”.  So the law itself recognises the danger.

Underlying Motives

As I have said, Immigration paints its change in approach as being about bringing consistency in the way visa applications are handled.  However, for the reasons set out above, claimants for refugee or protected person status are in a very different class to others.

The numbers of asylum claims have increased significantly in the last couple of years – from 339 in 2015-16 to 510 in the year to June 2019.  It may be no coincidence that this switch to greater consistency has happened this year, after decades of past practice in which claimants were not so burdened as they are now.  Perhaps it is hoped that, by making it more difficult for refugee and protection claimants to get visas, this will somehow deter people from coming here for that purpose.

I was heavily involved in representing refugees 20 years ago, and I have seen this before.  After the September 2001 Twin Towers attacks, there was a justifiable increase in scrutiny of travellers in general.  It was pretty well known among those of us who worked in this area that the passenger profiling at Bangkok or KL extended to looking out for those who might seek asylum on arrival.  Many people were stopped from boarding if they looked suspicious.  This appeared to correspond to a dramatic drop in the numbers who finally made it to our shores and applied to be refugees.  Similarly, the fixation on “mass arrivals” – the fear of hundreds of people coming ashore by boat, as they have tried to do in Australia – resulted in laws which penalised asylum claimants for daring to make such a perilous voyage.

If this is the reason for INZ changing its tune about Medicals and Police Certificates, then it is both legally and ethically wrong.  As a receiving country for refugees, bound by international treaty, New Zealand has an obligation to deal with both recognised refugees and claimants humanely.  If one was to accept, for a moment, that everyone claiming asylum has a valid fear of harm, then they are clearly among the most vulnerable group in society.  Yet, until a claim is decided, that is exactly what their legal status says they are.  That is why their ability to remain lawfully in the country should be facilitated, the way it used to be.

The alternative is to demonise them – as some do – as opportunistic gamers of the system.  And perhaps that’s what this is all about, after all.

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

Residence, Permanent Residence and Citizenship

Many people often ask the difference between Residence and Permanent Residence Visa status. Both enable the holder to remain in New Zealand permanently, but there is an important difference.

The holder of a Residence Visa is able to

  1. Travel to New Zealand in accordance with the conditions of the Visa relating to travel; and
  2. Apply for entry permission.

If the holder of a Residence Visa is granted entry permission, they are able to

  1. Stay in New Zealand indefinitely;
  2. Work in New Zealand or the exclusive economic zone of New Zealand; and
  3. Study in New Zealand.

The holder of a Permanent Residence Visa is able to

  1. Travel to New Zealand at any time;
  2. Be granted entry permission;
  3. Stay in New Zealand indefinitely;
  4. Work in New Zealand or the exclusive economic zone of New Zealand; and
  5. Study in New Zealand.

The key difference between Residence and Permanent Residence Visa status therefore is in the ability to travel to (and from) New Zealand. The Residence Visa comes with travel conditions which are normally two years in duration from the first day the holder has in New Zealand as a Resident, while with the Permanent Residence Visa the holder is able to travel to New Zealand at any time.

A Residence or Permanent Residence Visa is only cancelled in certain situations, but the holder should ensure that when they get a new passport upon expiry of an old passport, that they apply for a transfer of the Residence or Permanent Residence Visa to the new passport.

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

  1. Hold a Residence Visa and have held it for at least 24 months;
  2. Their first day in New Zealand as a Resident needs to be at least 24 months before the application for Residence is made;
  3. The holder can demonstrate a “commitment to New Zealand”;
  4. The holder has met any conditions imposed on their Residence Visa;
  5. The holder meets character requirements.

“Commitment to New Zealand” can be demonstrated in one of five ways;

  1. Significant period of time spent in New Zealand. The holder has spent 184 days or more in New Zealand, in each of the two 12 month periods of the 24 months immediately preceding their application for Permanent Residence.
  2. Tax residence status in New Zealand. The holder has spent 41 days or more in New Zealand, in each of the two 12 month periods of the 24 months immediately preceding their application for Permanent Residence, and the holder has tax residence status in New Zealand.
  3. Investment in New Zealand. The holder has been approved a Visa under the Business Investor category and has met conditions imposed on their Visa, OR the holder has been approved a Visa other than under the Business Investor Category and has maintained an investment in New Zealand of $1,000,000 or more that meets requirements for investment funds;
  4. Establishment of a business in New Zealand. The holder has successfully established a business in New Zealand that has been trading successfully and benefiting New Zealand in some way for at least 12 months.
  5. Base established in New Zealand. The holder and every member of the family who also holds Residence has resided in New Zealand for at least 184 days in the two year period immediately preceding their application for Permanent Residence, AND they own and maintain a family home in New Zealand OR they have been engaged in full time continuous genuine employment in New Zealand immediately preceding the application for Permanent Residence.

The way that most people qualify for Permanent Residence is by meeting the significant period of time spent in New Zealand requirement, as this is the most straightforward method.

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.

Having said all this, there are some classes of Residence Visas which carry what are called “section 49 conditions”.  This includes Investors and those granted Residence under the Parent category.  Discussion of some of these special cases is found in our blog from February 2019.

There is one more piece of the puzzle which people often ask about, which is the grant of New Zealand citizenship. New Zealand citizenship enables the holder to;

  1. Live in New Zealand indefinitely;
  2. Travel overseas on a New Zealand passport;
  3. Stand for Parliament or local government;
  4. Have full economic and social rights;
  5. Represent New Zealand in Sports.

To qualify for New Zealand citizenship there are some key requirements which must be met including:

  1. The applicant has been living in New Zealand as a resident for at least the last five years;
  2. The applicant has spent enough time in New Zealand in the last 5 years, which is at least 240 days in each 12-month period at 1,350 days across the 5 years;
  3. Be able to hold a conversation in English;
  4. Be of good character.

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, bear in mind that some countries do not themselves allow for 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.

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

Arranged Marriages and Partner Visas

Following concerted protests from the Indian community in particular, and intervention from the Prime Minister, Immigration agreed to review the rules on Culturally Arranged Marriages (“CAM”) to allow overseas partners to get visas.  The new visa Instructions came out yesterday, and take effect immediately.

However, they solve only part of the problem.

How Did We Get Here?

The previous CAM policy allowed New Zealanders who got engaged to someone in the home country to sponsor them, provided they could show that the match was arranged according to an “identified cultural tradition”.  It did not cover people who had already married, and by that simple fact they were required to apply for a Partnership Visa.

A key difficulty with this is that Immigration interprets Partnership policy to require a couple to show that they are, or have been, living together for long enough to be treated as being in a “genuine and stable” relationship.  Experience showed that a minimum time together of 3 – 4 months could qualify.  Many people had genuinely married, but only spent a few weeks together before the New Zealand partner needed to return to their job.  In such situations, visa officers had been using their discretion to grant a General Visitor Visa (GVV) to allow the couple to test the relationship onshore before applying for a proper Partner visa.

Then came Visa Pak 400, which “clarified” that people who didn’t meet the living together criteria could not expect a GVV as of right.  In a way, it was saying nothing new.  However, the result was the visa officers were rejecting Partner visas, and refusing to consider GVVs, out of hand irrespective of other indicators that the marriage was real.

The record needs to be put straight here.  Some news reports claimed that Immigration was imposing a rule that couple had to have been together for 12 months before they could do a Partnership visa.  That was never the case – the 12-month requirement only applies to Residence applications.

The New CAM Policy

These Instructions have been extended, to allow those who have married outside New Zealand to put in a CAM application without the “living together” requirement.  The non-NZ partner can then get a 3-month Visitor Visa to enable them to begin living with their spouse here, and apply for a Partner visa before their Visitor Visa runs out.

The test for a “culturally arranged” marriage has been changed as shown by the addition of the highlighted words:

the marriage follows an identified and recognised cultural tradition where the arrangements for the marriage, including facilitation of the selection of the persons to be married, have been made by persons who are not parties to the marriage

What INZ will accept as a “recognised” tradition remains to be seen.  Historically, it has often been a challenge in proving what the couple’s traditions are, and that they have been followed to the letter.  The policy has always allowed for evidence from an independent source, which could include third party research, or a letter from a community leader.  However, care had to be taken to ensure that the story that was told about the betrothal arrangements was entirely consistent with the tradition.

Another big snag is that the couple must have met before the visa application is made.  By the very nature of arranged marriages in some quarters, that does not happen, and sometimes is not supposed to happen.  This requirement undermines the very purpose of having the CAM policy for these people, and it has not been changed.

The reference to “facilitation” may actually be a relaxation of the previous rule that others (usually the couple’s families) had to select them for each other.  On the other hand, it may reinforce the need to prove how those arrangements took place, which can be difficult if such discussions are purely verbal.

Make no mistake, the CAM policy was, and remains, a difficult one to meet.

Others Left Out in the Cold

What about people who have informally been introduced but have not followed the pattern of what their ancestors did?  There are many of those, and they cannot use the new CAM Instructions.  Societal changes have eroded the customs of many communities, so that although a couple may still seek approval from their families to wed, they actually choose their partner for themselves in the “Western” way.  Concern has already been expressed about why culturally arranged marriages have been singled out under the changes.

They, then, are back with Partnership Instructions and the vagaries of how these are applied.  In order to recognise a valid partnership, Immigration is required to apply 4 criteria:

  • Credibility – are they believable in what they say about their relationship?
  • Living together – unless there are “genuine and compelling” reasons for being apart;
  • Genuineness of their reasons for being together, and in their intention to remain in the relationship long-term; and
  • Stability – is the partnership or marriage likely to endure?

Visa officers must apply all 4 of these tests.  In many cases, however, they have paid lip-service to this requirement, and used the lack of time living together as the sole reason to decline an application.  This is evident from numerous decision letters that I have seen, and it has been the source of vigorous discussion between INZ and the immigration industry.

As can be seen, living together is only one test to be applied.  It is true that, technically, Immigration can decline an application if that ground is not satisfied.  But for someone to decide that a husband and wife, whom they have never met, is not in a true partnership simply because they have not put enough time on the clock, is contrary to the structure of this policy.  It is detailed, and encourages INZ staff to take a nuanced approach to such assessments.

Also yesterday, Immigration released an Internal Administration Circular which opens the door for visa officers to consider a GVV for those who have not recorded much time living together.  It states that this could be granted for a “family visit”, and the mere fact that they might then go on to apply for a Partnership visa after arrival should not in itself invalidate the genuineness of the visit.

However, the IAC leaves broad discretion firmly in the hands of visa staff.  It also stresses that any applicant must prove that they have a bona fide intention – that is, that they have a genuine intent and lawful purpose in coming to NZ.  I, for one, am not convinced that this new guidance will result in real advantage for applicants, as they can still be declined for a perceived lack of bona fides, instead of using minimal time living together as the justification for denying a visa.

The present political storm, and Immigration New Zealand’s attempt to smooth it over, might have been avoided.  To be fair, INZ has faced huge challenges of restructuring and high staff turnover, at the same time as a major upswing in demand for temporary visas in particular.  Staff training and experience (or lack of it) is a real issue.  But so are the lives of New Zealanders, their partners and their families, who have suffered distress and turmoil because of a mechanical application of the rules.

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INZ’s Absurd Accusations in Character Assessments

We have recently encountered a partnership case where Immigration New Zealand (“INZ”) have accused the applicant of providing false and misleading information to INZ without any valid basis. The provision of false and misleading information to INZ is a serious accusation and potentially making the applicant ineligible for grant of a temporary entry visa unless granted a character waiver.

The general rule is that every applicant must meet the good character requirement for entry to New Zealand. This information is also available on INZ’s Knowledge Base. Under immigration instructions A5.45 Applicants normally ineligible for a temporary entry class visa unless granted a character waiver, include any person who: “in the course applying for a New Zealand visa, has made any statement or provided any information, evidence or submission that was false, misleading or forged, or withheld material information” A5.45(b)

In a recent case, INZ have interviewed a couple for a temporary entry partnership application. During the interview, the immigration officer questioned the applicant and the supporting partner about the letters of support provided from their parents. The parents knew about the relationship and the letters but did not write the letters. No questions were raised to the parents as to whether they signed the letters as INZ focused on who typed (wrote) the letter.

During the interview the applicant and supporting partner confirmed they typed the letters and did it based on the conversations they had with their parents about their relationship. The letters were then signed by the parents who acknowledged the content is true and correct.

Is typing a letter on behalf of someone considered false /misleading information?

The first step was to identify whether INZ’s accusation is genuine. We had to hear the full interview as this is a crucial step, knowing exactly how the questions were phrase and the answers received to each of those questions and whether it was within context. In this case; upon hearing the full interview; we identified that INZ’s emphasis on who wrote the letter was flawed and unreasonable. INZ are aware the parents signed the letters, approved the content of the letter and acknowledged the relationship. However, INZ advised the applicant during the interview that they need to write on the form that this letter was typed following a conversation with the parents. This is factually incorrect, because it is irrelevant who writes the letter, what is relevant is whether the content of the letter is correct and whether the parents signed the letters.

Therefore, the applicant’s actions cannot be interpreted as providing false and misleading information as there was nothing false or misleading in the information provided. A5.45(b) does not apply and character waiver is not required. A person who types or writes a letter to help someone else before they sign it, is not committing a crime. If a document is transcribed by one person which records what someone else says, the writer is effectively acting as their secretary taking down dictation. So, there is no dishonesty or misleading information that was provided. The accountably lies on the person who signs it. A person is tempted to provide false or misleading information when they are trying to prove something that is not true and INZ have made serious accusation which is not based on valid evidence.

What to take out of this?

The claim that this discloses a character issue warrants a proper consideration of the definition of false and misleading information and the application of the balance of probabilities test before reaching the conclusion that it falls under A4.45(b) of the character instructions. If we have not stepped in to challenge the fact there was no false or misleading information provided to INZ, the consequences would have been serious due to the absurd accusations. The application could have been declined if the character waiver was denied and the applicant would have had an alert on INZ records.

INZ’s concerns are not necessarily accurate and spot on. Like any other human, immigration officers can make mistakes. If you receive a letter from INZ raising character concerns, don’t panic, but this is when you stop and consider reaching out for professional help to address such concerns. If you encounter such an issue, contact Laurent Law for assistance.

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Information Requests – a Key Tool for Immigration Professionals

The Official Information Act 1982 and the Privacy Act 1993 (“the OIA and the Privacy Act”) are important pieces of legislation in the New Zealand immigration context.  With their help, applicants for Visas can get a copy of file information held about them. This file information can include:

  • copies of previous applications including documents provided;
  • records of interactions with Immigration New Zealand;
  • information such as travel history;
  • history of Visas granted, Visa applications approved and declined.

The size of the file released can vary, but it is not uncommon in many situations for it to be over 100 pages long. It may come as a surprise to some the amount of information that can be released by way of a request for file material.

Having access to information under the OIA and the Privacy Act is meant to increase the transparency of decision making by INZ.  When the process by which a decision was reached can be seen and scrutinised, we can identify ways to contest a bad result.  Where for example a challenge to a decision is successful, it is more likely a correct outcome has been reached.

Here at Laurent Law we are often asked to assist with difficult immigration matters.  Getting a copy of a client’s file from INZ can form an important first step in order to determine what the next steps should be.

By law, Government agencies must respond to an information request in 20 working days.  In some cases we ask the INZ Privacy Team for urgency where it is justified, and they are often helpful.  However, due to the statutory timeframe, and the fact that the release of information may not occur quickly, it is not always possible to get the file in time to act upon a case – for example, when addressing an INZ “letter of concern” with a deadline of 10 working days to respond.. Therefore, while having a copy of the file is usually helpful, it is not always possible.  If we believe that file material is required, it is best that the request is made as early as possible.

In some cases, INZ will not release full information and may black it out on the documents that it does send.  Justifications for withholding information are set out mainly in the Privacy Act, and include:

  • disclosure would endanger the safety of an individual;
  • disclosure would be likely to prejudice the maintenance of the law, including the prevention, investigation and detection of offences, and the right to a fair trial;
  • release would result in disclosure of the affairs of another person;
  • in the case of an individual under the age of 16, disclosure would be contrary to that individual’s interests.

If the person requesting the information is not happy with a decision to withhold information under the Privacy Act, they can complain to the Office of the Privacy Commissioner in Wellington.  Complaints about information withheld under the OIA go to the Ombudsman – for example, a refusal to disclose internal staff operating procedures which do not relate to a particular client, but are relevant to whether INZ has followed its own rules.

If you have an immigration matter which may require investigation of your file in depth, contact us here at Laurent Law to see how we can help.

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

Is Immigration New Zealand cracking down on partnership visas or are our Partnership rules simply outdated?

Immigration New Zealand’s assessment of partnership cases is old fashioned and narrow minded. Uniting families in New Zealand is becoming a mission. As a result, we see families being separated for a good period of time, leaving their kiwi partners and their children with undue stress and an unforeseeable future.

You might be a New Zealand citizen or resident who, while you were overseas, found yourself a partner from another country. You come to realise that your partner needs a visa to live with you in New Zealand. By doing a simple search on the Immigration New Zealand website you will come to know that as a New Zealander you can support your overseas partner for a:

1. Work Visa based on partnership.

2. Resident Visa based on partnership.

In both types of visa applications, you need to demonstrate that as a couple you are living together in a “genuine and stable” relationship. For a Work Visa you need to provide evidence of living together for at least 4 -6 months; and for a Resident Visa you need to prove that you have lived together for at least 12 months.

As a New Zealander, you might think this a simple process.  The problem is, however, that how you define a genuine relationship and what you can provide to demonstrate your living arrangement is different to what Immigration New Zealand expects in order to process a partnership application.

Partnership Instructions (Policy)

The process of securing a visa for a partner to live in New Zealand is not easy. Is this because of Immigration New Zealand’s narrow-minded assessment and lack of common sense, or are our partnership rules simply outdated and no longer applicable to modern day relationships? Or is it a combination of both?

Let’s take a look at the type of evidence Immigration New Zealand lists in the Immigration Instructions to demonstrate “living together”. This may include, but is not limited to, original or certified copies of documents showing a shared home, such as:

• joint tenancy agreement or rent book or rental receipts

• joint ownership of residential property

• correspondence (including postmarked envelopes) addressed to both principal applicant and partner at the same address.

The examples listed above are a sign that our Immigration policy is old fashioned and Immigration New Zealand’s request for evidence of living together is outdated. For a start, requesting original or certified copies of documents is out of step with the modern experience, what with online bills, social media, shared photos and travelling together.  Nor does the demand for such evidence take into consideration the way that people work, and live their lives, in other countries.

People no longer receive post marked envelopes. Mail is received by email. Invitations to special events are now done on social media or via a text message or Facebook. If it is an older or more mature couple who cannot demonstrate their relationship via social media, they probably live an even simpler life. To show that they live together will be even more difficult. Mature couples would already own or rent a property, they will already have their (separate) bank accounts, and utilities in their (separate) names. When they enter into a relationship, changing accounts to joint names is a hassle and makes no sense. Because this is not how they define their relationship. A genuine relationship is demonstrated by simply leaving a “good morning” or “I love you” note on a cereal box.

Immigration New Zealand’s interview questions are unreasonable. We have come across situations where fathers are being asked about the vaccination dates of their children. In a recent case I heard on the radio, a colleague in the Immigration industry described how a husband did not know the medication list for his wife.

While the interview questions are usually unreasonable, it is not necessarily the immigration officer’s fault. It is mainly because our partnership rules allow for such questions to be asked, and for a subjective decision to be made by the respective officers.

Our partnership instructions require immigration officers to consider four elements when determining the couple are living together in a genuine and stable relationship:

1.Credibility, where the principal applicant and the partner both separately and together, must be credible in any statements made and evidence presented by them,

2. ‘Living together’: the principal applicant and partner must be living together unless there are genuine and compelling reasons for any period(s) of separation.

3. ‘Genuine partnership’: the principal applicant and partner must both be found to be genuine as to their reasons for marrying, entering a civil union or entering into a de facto relationship; and intentions to maintain a long-term and exclusive partnership.

4. ‘Stable partnership’, the principal applicant and their partner must demonstrate that their partnership is likely to endure.

Our partnership rules are very subjective. The decision maker has to determine a couple’s future together on the basis of an individual interpretation of what is genuine, stable and credible. How can a couple demonstrate that their relationship is likely to endure. What is the test for this?

The couple must meet the living together requirements with a Western perspective of joint living arrangements and joint financial interdependence. It is usually migrants from non-Western countries who are travelling to New Zealand to reunite with their partners. How do our immigration rules reflect the living together arrangements for applicants from the Middle East and Asia? For example, where couples live with their parents and their relatives, they face real challenges in producing documents to prove their shared life.

New Zealanders to live offshore

Another issue that many New Zealanders as supporting partners encounter is having to live overseas to meet the living together requirements under partnership rules. The living conditions of the overseas country where their partners live is sometimes unsafe and unstable.

Many couples are not able to demonstrate that they are living together in the other country simply because the conditions there do not permit them to collect such documents. Many countries do not allow joint bank accounts. In the UAE, documents are issued in the husband’s name. Usually letters and statements are sent to a PO Box or the employer’s address.

It is not easy to secure employment and a house in New Zealand. For a New Zealander to resign from his/her job and leave everything behind to live with his/her partner offshore is usually not an easy choice. For many people this might not even be a choice. They might have debts, finances, children from previous partners, so their commitment to New Zealand is far too strong to put aside and live overseas just to meet INZ’s definition of living together.

As part of its Change Programme, INZ has assigned a dedicated team to assess partnership cases, with a view to producing more consistent decisions. From what we have seen, this clearly is not yet being achieved. We are still receiving inconsistent decisions, unrealistic interview questions, and as a result families cannot be reunited and their struggles continue.

What can be done?

Our partnership rules need to be updated to reflect current living arrangements. On the other hand, INZ need to start applying their common sense when it comes to partnership, and not mix the good with the bad. They need to take into consideration the living arrangements of overseas countries.

If you are a New Zealander who wants to bring their partner to this country, the process is not simple and you usually need professional help to get your partnership case across the line. You need to document and keep records of everything you can think of. It can be as simple as an invitation letter you received online or via email or even a text message. You need to detail every step of your relationship. A successful partnership case needs to be as clear cut as possible, with every document explained clearly in a manner that a person on the other side, who knows nothing about your life, can get a good grasp of and will understand why you are providing these documents.

We come across many partnership cases, and as a third party we may be best placed to help you put your case together with the right material that is relevant and persuasive. Critically, by working alongside you, we can tell your story in a way that is compelling and persuasive.

If you require assistance with partnership applications, then get in touch with Laurent Law to discuss your case.

Posted in Business, Citizenship, Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas, Practice of Law | 1 Comment

Visa Reconsiderations – a Second Chance

Last year I highlighted a change to the rules around Interim Visas which gave people more opportunities to contest declined visa applications.  Since then, we have had increased demand for us to handle reconsideration of a refused visa.

Reconsiderations are available for most temporary visa applications made by people in New Zealand – Visitor, Work or Student Visas.  They do not apply to Residence.  If a Residence application is declined, there is usually a right to take an appeal to the Immigration & Protection Tribunal.  You also cannot normally ask for a reconsideration if you have applied from outside NZ, an issue which I will come back to.

How Do They Work?

A reconsideration means what it says – Immigration has to consider the application again.  It has to be looked at by a different visa officer who is at the same rank as, or higher than, the one who declined the application.  This can be an effective way to get someone else to take a fresh look at your case, especially when it seems that the first decision was not done properly.

It also gives a chance to bring in new information which was not provided the first time, or was not available until later.  For example, we have put cases forward where the applicant tried to do the application themselves, but failed.  This is often not their fault – visa applications can be technically challenging, and most applicants don’t have much experience of how to apply the rules around various types of visa.  Perhaps they simply didn’t gather enough evidence to show that they are in a strong partnership relationship.  Or, for a job-based Work Visa, the employer did not get any guidance about how to describe their job accurately in the Employment Agreement.  These things can be fixed, but they have to be done carefully.

Get in Quick

If your visa application is declined, you have 14 days to put in the reconsideration.  That is not very long, especially if you also need to find an immigration professional to help.  Because most visa decisions are sent by email nowadays, the 14 days starts from the date on the decline letter (assuming that the letter goes out on the same day).  If you put in the reconsideration late, Immigration is not allowed to look at it because the time limit is set by section 185 of the Immigration Act 2009.

Instead, a late reconsideration could be treated as a request for a visa under section 61 of the Act.  Immigration does do this sometimes, and if they don’t then you should ask them to.  Some years ago Immigration New Zealand set up a dedicated Section 61 Team, and this is now called the Section 61/Reconsiderations Team for this reason.

That option is far from ideal, because “section 61” requests are basically Yes/No calls by an Immigration officer.  They are not required to give reasons or use any particular policy to make the decision.  Reconsiderations, on the other hand, must be assessed using the policy which the migrant applied under.  Immigration must also turn its mind to whether an “Exception to Instructions” could be used if the person’s case doesn’t quite fit the rules.

The upshot is that, if you can ask for a reconsideration, make sure you do it in time.

Offshore Visas

I mentioned before that people who are overseas have no right to a reconsideration.  This is technically correct, but Immigration Instructions do allow visa officers to reassess a declined offshore application if the applicant puts forward “new and compelling information”.  The trouble is that anyone trying to use this avenue is at the mercy of a visa officer who gets to decide if the new material is new and compelling enough.

It may be time to revisit this restrictive approach to offshore visas.  The limitation on reconsiderations is a part of the law passed by Parliament, but it is not clear why it should be so.  The argument is often made that people who are already in NZ have a greater right to fair treatment, and a second chance, than someone who has never been here before.  However, overseas applicants often have a lot at stake.  If they are coming to visit family or to join a partner, the people in New Zealand are also deeply affected by a defective decision.  The only thing people can then do is to apply again, and take the risk that Immigration will simply follow the last decision and decline a second time.

The other problem is that, without any rights of appeal or reconsideration for offshore applications, cases can be declined – and are declined – with very little accountability on the part of INZ staff at offshore posts.  For instance, some years ago this forced the industry to involve the Office of the Ombudsman in a complaint about the wholesale decline of applications by partners of students and workers from India.

In the last year or more, the number of declined Partner applications has increased significantly.  While this is also happening to people already in New Zealand, the figures are more dramatic from INZ Mumbai, whose notoriety in the industry is reaching new heights.  My colleagues who are looking at this situation more closely have identified a systemic application of policy, in a manner which seems calculated to make it difficult or impossible for many people to qualify.  And visa staff at these overseas posts can do this with impunity.  INZ’s own complaints and feedback system is worthless, because it cannot be used to point out deficiencies in the logic behind decisions.  And the Immigration Act prevents anyone from taking their case to the Courts.

To restore accountability, any review of the Immigration Act should involve extending rights of reconsideration to offshore applications, and perhaps even making judicial review available to people outside New Zealand.  INZ has hidden behind the statutory protections that it currently enjoys, for too long.

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