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

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

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

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

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

So what is an exception to Instructions?

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

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

Immigration Instruction E7.10(b) states;

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

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

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

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

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

Recent success story

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

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

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

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

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

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

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

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

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

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

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

Posted in Immigration Visas | Leave a comment

Think outside the box and rewrite the rules to win

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

Background

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

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

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

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

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

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

i.to remain in New Zealand unlawfully; or

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

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

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

The Strategy

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

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

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

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

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

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

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

Moral of the story

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

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

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Engineering an Elite Migrant Workforce

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

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

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

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

Let’s Price Migrants out of the Gutter

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

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

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

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

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

Other Options – Sort Of

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

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

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

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

Partnership applications: the requirement to be living together

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

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

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

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

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

The key requirement for Partnership Visas = living together

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

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

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

What does “living together” mean?

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

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

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

Citizens of Visa-waiver countries: starting to live together

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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Success Story: How NZ Resident Family Avoided Deportation

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

Case Overview

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

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

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

Our approach

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

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

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

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

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

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

(a) issue a deportation liability notice; or

(b) cancel the deportation liability notice; or

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

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

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

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

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First Look at Accredited Employer Work Visa Rules

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

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

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

Flavours of Accreditation

There are 2 main types of Accreditation to go for:

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

Alternatively, the employer could apply for . . .

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

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

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

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

What’s Involved?

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

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

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

How to Apply

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

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

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

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

The Bottom Line

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

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

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

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The situation in Ukraine: can I help my family?

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

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

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

DEDICATED TEMPORARY VISA

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

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

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

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

  • parents
  • grandparents
  • siblings
  • adult children

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

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

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

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

WHAT ABOUT OPTIONS FOR RESIDENCE?

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

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

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

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

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Fraudulent Relationships for Immigration Purposes

It has come to light that migrants are being offered money to fake marriages/relationships to secure Residence under the government’s fast-tracked 2021 Resident Visa scheme. A Radio NZ article recently reported that some migrants are offered more than $30,000 to enter into a fake marriage so as to include someone else from overseas in their Residence application. The Radio NZ article discussed an immigration adviser’s fears that the two cases that have approached him with this scenario “could be the tip of the iceberg”.

As mentioned later, relationship visa fraud is hardly new. The sheer number of 2021 Resident Visa applications being filed – probably over 100,000 in the last few months – simply throws the issue into high relief. The opportunity it gives for Work Visa holders to get a permanent foothold in this country comes with the temptation to leverage that status to their advantage.

The government introduced the one-off 2021 Resident Visa ,which provides a simplified residency pathway to temporary work visa holders in New Zealand. By “simplified”, we mean that this visa category has no points system, no age and no English language requirements as required under other Residence categories such as Skilled Migrant.

The 2021 Resident Visa also allows partners and dependent children to be included in the Residence application. Including a partner has always been available for Residence. However, migrants seem to think that because the 2021 Resident Visa category is a simple process where some rules have been relaxed, INZ may not pay attention to the standard requirements for partners. Faking a marriage to add someone to the Resident Visa is certainly not the way to go about it because it has serious consequences.

The Radio NZ article also provided INZ’s response to the fake marriage cases, that “providing false and misleading information to an immigration officer was a criminal offence”. The General Manager of the border and Visa operations, Nicola Hogg, commented to Radio NZ that ‘Allegations of fraudulent relationships entered into for immigration purposes (for money or otherwise) will be taken seriously.”

How does INZ assess partnerships for visa applications?

Some migrants fail to understand that marriage on its own does not prove a relationship for immigration purposes. For Residence, the couple must demonstrate that they have been living together for at least 12 months. They must provide documents to demonstrate they are living together in a genuine and stable partnership. For example, the couple can show evidence such as a joint tenancy agreement, joint assets, joint bank statements, correspondence addressed to both of them at the same address.

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

1. ‘Credibility‘, the principal applicant and the partner, both separately and together, must be believable in any statements they make and evidence they present,

2. ‘Living together’: they must have been living at the same address the whole time unless there are genuine and compelling reasons for any periods of separation. If an applicant has lived apart from their partner for a time, they need to give strong reasons for their separation, and show how they kept up their relationship while they were not together.

3. ‘Genuine’: they 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 intend to maintain a long-term and exclusive partnership.

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

INZ can also decide to interview the applicant and their partner. This may be by ‘phone, or they may be called to go to an INZ office if they are in New Zealand. We have seen INZ declining partnership applications because of the inconsistent or false information provided at an interview.

It should be clear that just getting married to someone for immigration purposes, particularly for the 2021 Resident Visa, will not meet the partnership criteria. As a result, the whole Residence application could be declined. This will also impact any future partnership applications made to INZ. Suppose INZ finds out later on that a person supported a fake relationship and provided false information to INZ. In that case, there is a risk that this person would face deportation even if they got Residence. See my earlier blog which discusses deportation issues for Resident Visa holders who provided false and misleading information to INZ in a previous application.

Be wise or face the consequences

Unfortunately, migrants who fake marriages for immigration purposes is not a new issue to INZ. An NZ Herald article reported immigration fraud back in January 2013. The case mentioned in the article refers to a man who gained Residence in New Zealand after informing INZ that he was in a de facto relationship. After getting NZ Citizenship, he married another person and sponsored her visa application. INZ found out about the fake marriage when they made a surprise visit to verify the relationship. It appears that he was still living with his original partner and never left her. He only married the other person to help her secure Residence. The application was declined due to fraud. The man who supported her application was prosecuted for immigration fraud. He pleaded guilty to three charges of giving false information to an immigration officer and was sentenced to 260 hours of community work.

It is important to know that lack of awareness of a country’s system and culture cannot be used as a defence to providing false or misleading information.

The damage is not necessarily limited to New Zealand visa status. New Zealand has an agreement with several other key countries to share immigration information. A black mark on someone’s record here could prevent them from getting a visa elsewhere, probably for life.

Is faking a marriage for money really worth jeopardising everything you have worked for to live in New Zealand? As should be clear by now, the answer is a resounding NO.

We regularly encounter these scenarios, and the fallout from them. Sometimes we can help sort it out; sometimes it is too late to clean up the mess. If you know of someone who is getting into trouble because of this type of scenario, then get them to contact us sooner rather than later.

Posted in 2021 Resident Visa, Citizenship, Immigration Appeals, Immigration Industry, Immigration Visas, residence | Tagged , , , , , , , , | Leave a comment

Including Family in 2021 Resident Visa

Phase 2 of the one-time 2021 Resident Visa scheme (“2021 RV”) begins today, Tuesday, 1 March, for most people. About 100,000 eligible Work Visa holders are expected to apply. The sheer volume of cases will amplify an aspect of Immigration Instructions which has been around for some years, but which will create real problems for a number of migrant families.

The Rule

In 2017, the requirements for filing a Residence application were changed to say that a main applicant must

include all dependants of the principal applicant where they hold or have applied for a temporary entry class visa based on their relationship to the principal applicant”.

Here, “dependants” means the partner or children. The effect of this is nailed home in another part of Immigration Instructions which says that dependents:

cannot be removed from that application while the application is being processed, unless a change in circumstances results in the partner ceasing to be the applicant’s partner or the child ceasing to be a dependent child.

Both of these stem from the wording of the Visa Regulations which govern the way visa applications must be lodged. These are signed off by the Governor-General by Order in Council; they are subordinate legislation and of greater legal authority than Immigration Instructions.

The mischief that this was meant to cure was, partly, the creation of split-family situations. For example, a couple applies for Skilled Migrant Residence based on the wife’s good job, but her husband has a costly medical condition. Her application would be declined if he was included. This is because Residence for a family group is a single application – if one person doesn’t qualify, they all get declined. So they agree to take him off the application, and after she gets Residence she applies for him separately, claiming that if he doesn’t get Residence, she will have to give up her NZ job to return home, Families would spend years fighting their way through visa processes, people overstaying and trying humanitarian appeals, only to fail in the end and leave their lives here, disappointed.

How It’s Playing Out Now

The most troubling part of the policy is that an applicant is forced to include any dependant who “has applied” for a visa. That is, they had applied at any time in the past, even if they aren’t here now; and this even includes cases where the application failed.

The 2021 RV was meant to be a quick and tidy way to allow people on job-based Work Visas to settle. The trouble is that, in a number of cases we have seen, it is not going to be that easy. For instance, the NZ-based partner has been here for some years while the spouse and children remain in the home country (to finish schooling, or because the path to Residence had been too uncertain to make plans). The overseas partner had once applied for a Partner of a Worker Visa several years back. Many of these have been declined in the past, most notably by the notorious New Delhi branch of Immigration New Zealand. The couple must now prove that they are living together in a genuine and stable relationship in order for the whole application to succeed. But, of course, they haven’t been doing that for a long time now. So the whole case will have to go on hold for one of the following to happen:

  • The main applicant withdraws his partner from the application; or
  • The overseas partner applies for a Work Visa to be able to come over and make up the required 12 months together, although that is a long shot if they have already been refused a visa based on their relationship.

So far, this issue has only been the subject of a couple of appeals to the Immigration & Protection Tribunal. In JR (Skilled Migrant) [2019] NZIPT 205465, Immigration responded to questions from the Tribunal about what the policy meant. It pointed to its own VisaPak 341 which said that “has applied for” only related to family members who had a temporary visa application underway at the time the Residence case was filed, and not before. This was the “narrow interpretation” of the wording. The IPT rejected this because VisaPaks were not binding and did not take the place of the Regulations or the Instructions as they were written. It was critical of the ambiguity in the wording of both the rules, saying that if this is what INZ meant, it needed to rewrite the Regulations and the Instructions to make this clear.

There is a solution to this if a relationship has broken down, because the couple could prove that they had divorced or make joint statements that they had permanently separated. What about children, though? If the couple had split and had agreed that the child should stay back in the home country, why should the NZ partner be forced to include the child in the application when neither of them wanted this? If the main visa applicant does not have the right to decide the child’s country of residence, but must add the child to the 2021 RV application because they once applied for a Student Visa for them, then once again the parent’s Residence application is doomed to failure unless, again, the child is later withdrawn.

It is not enough for INZ to say that they’ll simply apply the narrow interpretation from now on. As the rules are not spelt out clearly, applicants would be unwise to rely upon a promise to do one thing when INZ’s own rulebook says something else. Other systemic problems are the level of staff churn in the department, so that it is inevitable that many staff being pulled in to turn over the 2021 RVs are relatively inexperienced; and the caseload pressures which are even now pushing out processing times on all fronts into many months, or even years.

A Final Solution

It’s simple, really – rewrite the rules of the game. If INZ believes that the “narrow interpretation” is what they meant, then this requires two adjustments. One is to the underlying Regulations, and the other is to the Immigration Instructions signed off by the Minister. In both cases, the wording should be amended to require only that an applicant must include dependents “who hold a temporary entry class visa based on the relationship, or are applying for such a visa at the time the application is lodged.”

Now, changing Regulations is a bit more involved than amending Instructions, but in my opinion Immigration should move on this right away. If only 1% of cases are affected by this issue – and I think that is a very conservative estimate – then the visa pipeline will get clogged with difficult cases which managers did not anticipate. And the IPT could end up with a thousand appeals, which would double its current caseload across all appeal types.

There is a narrow window of opportunity. People can file their 2021 RV until the end of July this year. If they are told that the rules will be changed, then there is good reason for them to hold off until the ink is dry on the amended Regulations and Instructions. If the MBIE policy people do nothing, this invites a lot of expense, time and stress – on both sides of the desk. Does anyone really need more of that during these turbulent times?

Posted in 2021 Resident Visa, Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas, residence | Tagged , , , , , , , , | Leave a comment

Can I support my partner for a Residence Visa if I have supported someone else for a Residence Visa before?

The issue

Sometimes at Laurent Law we meet people who have supported someone for a Residence Visa in the past, but later enter into a new relationship with a different person and want to sponsor this other person for a Residence Visa too. As Lawyers it is very important for us to have a good understanding of Immigration Instructions relevant to this situation to ensure the correct advice is given.

The answer

The answer to the question is “yes”, you can support a second partner for a Residence Visa BUT ONLY if you have successfully supported only one person in the past AND that was more than 5 years ago. Sometimes we meet people who are not fully aware of this rule, so where a client is seeking assistance with a Residence application based on partnership it is important for us to specifically ask the client if they have previously successfully supported a partner for Residence and give advice on what they can and cannot do accordingly. In some situations this may result in disappointment.

However, tricky situations can be solved

A tricky situation arises where a person wants to support a Partner for Residence, but has successfully supported two or more partners in the past, or one within the last 5 years. These situations are excluded by Immigration Instructions. The basic response is to say that any further Residence application based on partnership will be declined.

However, it is important to recognise that a declined Residence application gives rise to a right of appeal to the Immigration and Protection Tribunal which can be pursued based on “special circumstances”. If the Tribunal finds that special circumstances exist, it can recommend the Minister of Immigration grant Residence as an exception. The Minister of Immigration will then make the final decision, and in our experience the Minister usually follows the recommendation made by the Tribunal.

SUCCESS STORY

We recently assisted the partner of a New Zealand citizen who had successfully supported two people for Residence in the past. On the face of it, the New Zealander could not support her current Partner for Residence. We explained to our client that any Residence application for the overseas partner would be declined and any chance of getting Residence would have to be pursued by way of appeal to the Immigration and Protection Tribunal.

We prepared detailed appeal submissions which resulted in the decision KZ (Partnership) [2021] NZIPT 206285, in which the Tribunal found that special circumstances existed and recommended the grant of Residence. This subsequently led to the Associate Minister of Immigration granting Residence to the overseas partner. Our clients were very happy!

A link to the decision is available on our website here, so you can read the detail for yourself. The Tribunal said the following about the couple’s partnership:

  • Our New Zealand citizen’s previous relationships were several years ago and were genuine and enduring. There was no suggestion that the new application would result in Residence being granted to persons in “serial unsustainable relationships”;
  • The couple had been together for more than 5 years and they had spent significant periods of time living together in each other’s countries;
  • The New Zealand citizen partner had strong connections to New Zealand, through family, business and property ownership. It was more practical for the overseas partner to come and live in New Zealand, rather than the New Zealander moving to live overseas in the partner’s home country;

The outcome of this appeal shows that sometimes a solution can be found to problems that at first sight may seem insurmountable. We cannot fix everything or solve every problem, but many situations can be resolved through some clever thinking. Note that the likelihood of the Tribunal finding special circumstances, and recommending the grant of Residence, needs to be viewed with the reasons identified above in mind, because situations that do not have similar features may not have the same outcome.

If you have an immigration problem you need help with, please contact us to see if we can help!

Posted in Immigration Industry, Immigration Problems, Immigration Visas | 1 Comment