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.

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

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

The Fine Detail of the 2021 Resident Visa

The “one time” Resident Visa announced in September 2021 is underway. The first batch of applications opened on 1 December. mostly aimed at people who have a Skilled Migrant Residence case in the queue. About 15% of those applications have been decided so far. Phase 2 opens for everyone else on 1 March 2022, and people can apply up to 31 July 2022. It is expected that about 10 times as many migrants could qualify, so Immigration New Zealand has its work cut out processing all those online applications.

If you or someone you know is thinking of applying, here are some things for the “principal applicant” to look out for.

Dependents

If your partner or children (“dependents”) cannot join the application right away, the general rule is that they do not need to be included at the start. This may be because they haven’t got their passport or Birth Certificate ready, or your personal plans mean that they won’t come to New Zealand for some time (finishing high school, for example). They must still be declared on the online form – this is important, because non-declaration could put your own application, plus their later application, at risk. You could add them in later once you are ready.

BUT, they must be included if they hold a visa, or have already applied for a visa, based on their relationship to you. This means, for example, a spouse who has a Partner Work Visa. In those cases you can’t apply until everyone has the right paperwork. With international conditions as they are in various countries, this is a real challenge and one that it is risky to try to get around. For example, Birth Certificates are a non-negotiable requirement. Simply uploading a letter explaining that it will take a few more months to get the Certificate could, at worst, result in the application being declined. It is better and safer to wait until you have the actual Certificate itself, and apply later and with less risk.

This class of dependents also cannot be removed from the application before it is decided. This is also a big issue if, say, a child has a serious illness or disability which means that they may not be granted Residence, or a partner has a past criminal conviction. And if they are declined Residence for that reason, then the whole family’s application will be declined.

All may not be lost, because most (but not all) applicants can request a Medical Waiver or Character Waiver. If Residence is declined, then there is usually a right of appeal. Follow the links in this paragraph to hear more from us about these topics.

Character Waivers

You may have got a conviction for drink-driving while you were on an earlier Work Visa, or Immigration accused you of supplying false information to them. When you applied for the next Work Visa, the visa officer went through the Character Waiver process and granted you the visa.

Don’t assume that this will get you through the Residence application. Immigration has made it clear in its comms that they do a fresh character assessment each time. The legal tests for Character Waivers for temporary visas and for Residence are somewhat different. Residence policy introduces some new triggers for character concerns – for example, making public statements that discriminate on race or ethnicity. Be prepared to give a full response when Immigration raises this during your Residence application.

Scarce Occupations

One way to qualify for the 2021 Residence Visa is if you work in a job that is on the Scarce List. Immigration claims that it won’t go into fine detail about whether your job is a “substantial match” to one of those occupations, as it does for Skilled Migrant applications. If your Work Visa has been granted for you to work in the same job, as the one you rely on for the Residence application, then this should be a fairly simple exercise.

It does not pay to be complacent, though. Although the 2021 Resident Visa is meant to be a quick fix to grant visas to a lot of people in a short time, there is still the risk that a case officer starts going down the rabbit hole of fine detail about your job, if your duties don’t fit neatly into the Scarce occupation you have claimed.

If you can qualify under either the Settled or Skilled criteria, then use those instead. See our blog which explains this a bit more.

Residence from Work

A number of people face a dilemma if they have applied for Residence From Work based on their job with an Accredited Employer, if they are paid over $90K and they applied for the 5-year Work to Residence Visa (“WTR”) before 7 October 2019. This entitles them to a Permanent Resident Visa (“PRV”) with no travel conditions. These applications have been taking a long time to process, although they are part of the top tier in Immigration’s own “order of processing” Instructions.

If they apply for the 2021 Resident Visa, they could well get a quicker decision because most staff and resources are being directed to this category. The downside is that they only get a Resident Visa (“RV”) with 2 years of travel conditions which must be renewed, or else they later apply for the PRV separately. Getting the PRV might be valuable to some people who plan to spend a few years working in another country, but want the right to return to New Zealand any time they like. In such cases, an RV would eventually expire and they would lose Residence, so that holding on for the PRV is what they should do.

Then there are those who have had the 2021 Resident Visa approved already. They can’t revive the Residence From Work application in order to get a better outcome. This is because they only qualify for Residence from Work if they still hold a WTR. When the 2021 Resident Visa was granted, it replaced their WTR and removed their eligibility.

As you can see, things can get complicated. If you are unsure of your rights and opportunities, make an online booking to talk to us about it.

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

Declare or Face Deportation

Last week, we saw the deportation of World No.1 Tennis player, Novak Djokovic from Australia after a ten-day legal battle. Novak travelled to Melbourne in early January 2022 to participate in the Australian Open with the hope of winning his 21st Grand Slam title. He was stopped by border officials at Melbourne airport and questioned about his vaccination exemption documents. Australian border officials claimed that his medical exemption was not sufficient to enter Australia. However, this was not the only issue, as it all started with his travel declaration document.

Novak failed to declare his previous travel history on his travel document for Australia. He released a statement on 12 January 2022 admitting that his agent “ticked the wrong box” on his travel declaration before entering Australia. Novak confessed that this was a “human error” and “not deliberate”. Novak’s assistants had incorrectly declared that he had not travelled anywhere in the 14 days before departing for Melbourne. However, it was confirmed that he did travel to Spain. Novak’s non-declaration issue gave rise to his deportation saga regardless of his popularity and the importance of participating in this tournament. Novak’s visa has been cancelled twice by Australian officials and the Australian Immigration Minister, Alex Hawke. He was deported from Australia on 16 January 2022 after losing his appeal.

New Zealand immigration laws are no different. We have seen a number of people coming to us after they have had deportation liability notices or have become liable for deportation. People can become liable for deportation on several grounds, such as:

  • being unlawful in New Zealand;
  • breaching visa conditions;
  • being convicted of an offence within two years of obtaining Resident Visa;
  • providing false or misleading information or withholding information from Immigration NZ in a previous application (e.g. failure to declare).

Withholding or failing to declare information to Immigration NZ

A person can become liable for deportation where any information provided in relation to the person’s application for residence class visa or entry permissions was fraudulent, forged, false, misleading, or any relevant information was concealed. See s158 of the Immigration Act 2009.

We have recently noticed an increase in the number of people who have become liable for deportation for false declarations or withholding material information from Immigration New Zealand in previous visa applications. It does not matter whether the individual’s actions were deliberate or a human error. The mere fact that information was false or withheld from Immigration New Zealand is enough to invoke liability for deportation.

For example, we have come across a recent case where the whole family is liable for deportation due to a wrong declaration on the initial residence application. They recorded their dependent child as “single” when that was not the case. According to the residence instructions, for an applicant to include their dependent child in the residence application, one of the requirements is for the child to be single. Immigration New Zealand came to know that the child was actually in a partnership when Immigration New Zealand issued the resident visas. As a result, the whole family now runs the risk of losing their Resident Visas.

It is also important to note that liability for deportation could arise if a person other than the person holding the residence class visa provides information that was false, fraudulent or conceals relevant information.

What happens when you become liable for deportation?

For people who have Residence, the process is usually this:

1. Immigration New Zealand Resolutions will send a letter to the individual stating that consideration is being given to serving them with a deportation liability notice and inviting them to comment on why service of the notice should not proceed.

2. Once Immigration New Zealand Resolutions team receives the individual’s comments, Immigration 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.

Where deportation liability is suspended, it is usually for 3 or 5 years, subject to conditions.

If the Resolutions team decide to proceed with deportation, the individual will be served with a deportation liability notice.  The individual can then file an appeal against deportation with the Immigration and Protection Tribunal within 4 weeks of the Notice being served on them.

The Tribunal hearing will be a semi-formal court hearing and the individual can bring witnesses to explain why they should keep their Residence.  Immigration usually sends a lawyer to attend, and can present witnesses as well.  The Tribunal issues a written decision after the hearing.

It is, however, not an easy task to win such an Appeal. You have to show that there are “exceptional humanitarian circumstances”, which justify keeping their Resident Visa. Something exceptional is “unusual” or “out of the ordinary”, and it is a high threshold to meet. If you cross that hurdle, you then need to show that it would not be “unjust or unduly harsh” to be deported. The seriousness of the offence that led to the individual’s deportation liability will be an important factor to be weighed up against everything else in their favour.

People on temporary visas (like Work Visas) don’t normally get any advance warning that Immigration plans to take action against them. The first thing they know of it is when they get the deportation liability notice. They then need to decide quickly whether there is any point in appealing, and then get the appeal in before their time runs out.

Consequences of deportation

The effects of being deported are serious. If deported, a person is likely to face a period of prohibition on returning to New Zealand (see s 179 Immigration Act 2009). If someone is deported under s158 of the Immigration Act 2009 (providing false information), it imposes permanent prohibition from re-entering New Zealand. Being deported may also negatively affect a person’s ability to apply for visas to other countries. For example, in New Zealand, a person deported at any time from any country is subject to s 15 exclusion, preventing them from being granted any visa at all unless granted a Special Direction by the Minister of Immigration. Being deported is therefore not something to be taken lightly. The classic example is Novak Djokovic, who could face a three-year ban from re-entering Australia. The impact of this means he could no longer compete in future events.

Therefore, it is crucial to be open and upfront with Immigration New Zealand in all your visa applications. It is important to read the questions on Immigration New Zealand’s application forms. With that said, we understand that some people could face these situations for various reasons. Also, some of the words used in the visa application questions have particular legal meanings which can be misunderstood. We can assist people in explaining their circumstances when responding to Immigration NZ Resolutions to show why deportation should not proceed.

If you are a temporary or a resident visa holder and become liable for deportation, it is important to seek legal advice on dealing with your deportation liability notices. Being deported is serious and can impact the visa holder, and any family included in the application. Contact us for professional help.

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The importance of understanding your Work Visa conditions

If you hold a Work Visa, it is very important to make sure you work in line with the conditions on your Visa. Some types of Work Visa are “open” ie. they allow the holder to work for any employer (for example, a Work Visa based on Partnership). However, Essential Skills Work Visas typically have conditions that the holder must work for a specific employer, in a specific role, in a specific location and be paid at least a specified amount per hour.

The consequences of breaching Work Visa conditions can be dire. It left too long, it can result in the issue of a deportation liability notice under s 157 Immigration Act 2009.

RECENT SUCCESS STORY

We recently assisted a client who held an Essential Skills Work Visa and had been working in breach of the conditions, by working for a different employer and in a different location than specified. Our advice was;

  1. He had to immediately stop working at the new job, even though this meant he could not work at all for a period of time until a new Essential Skills Work Visa with conditions relating to that job was granted. Stopping work was necessary to show that our applicant and his employer was willing to comply with immigration law going forward;
  2. Prepare and file a new Essential Skills Work Visa application for the correct conditions and with all standard requirements met, including advertising the role to New Zealand citizens and residents.

The Work Visa application was eventually approved, but the need to prepare and file a new application was quite an undertaking and a nerve-wracking experience for both our applicant and his employer. We had to do quite a bit of work explaining why the Work Visa conditions had been breached, apologising and promising it would not happen again. Fortunately, INZ accepted our explanation and apology – but this might not be the case in all situations.

If we had been able to assist our applicant before he started working in the new job, our applicant may not have found himself in such a difficult situation. The subsequent period of uncertainty and financial hardship which he endured, through not being able to work while waiting for the outcome of the new application, could have been avoided. This demonstrates the advantage and value of receiving high quality immigration advice. It appears our applicant had got himself into difficulty by relying on faulty information received from social media platforms regarding what he could and could not do with the conditions on his Work Visa.

DO I NEED A NEW WORK VISA OR CAN I VARY MY CONDITIONS?

An Essential Skills Work Visa with conditions to work for a specific employer, in a specific role, in a specific location can be successfully varied if the holder wants to switch to to a different employer in the same location, provided the type of job remains the same.

  • generally speaking a “specific role” or “type of job” is the same if the same ANZSCO match applies
  • INZ usually considers “same location” based on region, for example, Auckland, Waikato, Bay of Plenty

If conditions are varied, the expiry date of the the Visa will remain the same – the varied Visa is not a new Visa – but if the conditions can be varied then this will save significant time involved in preparing and filing a new application, in particular the requirement to advertise to New Zealand citizens and residents. Varying conditions is not a difficult process, but it is important to understand when it is possible, ie. what conditions can and cannot be varied.

If the type of job or location of work associated with an Essential Skills Work Visa is changing, a new Work Visa application is required.

ADVICE FOR EMPLOYERS

If an employer hires someone to work in breach of their Work Visa conditions, the employer runs the risk of INZ saying that they have not been compliant with immigration law. This could affect the employer’s ability to hire migrant workers in the future. It can also be an offence under s 350 Immigration Act 2009, attracting a fine of up to $10,000 if successfully prosecuted. If the employer knows the employees cannot legally work for them and allows them to continue to do so, the fine can be up to $50,000. These fines are not insignificant.

If a company has been sufficiently careless about whether their people have the right visa for the job, or the work conditions violate employment law, then they can be blacklisted for a minimum of 6 months, during which they may not support visas for any migrant workers. Employers labelled in this way are named and shamed on a public list.

Our recommendation is that employers use the VisaView tool on the INZ website, available here, to check if a potential employee can legally work for them. This is a simple step to ensuring the employer and their worker do not run in trouble.

DO YOU NEED FURTHER HELP?

If you are an employer or employee and are unsure about what the conditions on Work Visas allow you to do and not do, it is prudent to seek professional advice. The Lawyers at Laurent Law can help. Visit our website, www.laurentlaw.co.nz and make an online consultation booking. We look forward to speaking with you.

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