Section 61 Requests

My latest video blog explains what constitutes a legal status in New Zealand. I also talk us through the meaning and consequences of an illegal status and the options available to those with an unlawful status.

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Please, How Can I Help My Family?

We get this question a lot. In particular, we field requests from New Zealand Residents or Citizens about how to bring their relatives to NZ from the home country.

We often have to say that there is nothing to be done. There is simply not a solution for everybody. However, the following is a brief overview of options to consider.

During the COVID-19 border closure, most of these cannot be pursued because the processing of nearly all offshore visa applications has been suspended. However, hopefully that situation will not last forever. Read on with the mind-set that you are looking for something that can be done in 1 or 2 years time – not next week, or next month.

Parents

The Parent Residence scheme was re-opened in early 2020. This relies on the NZ son or daughter showing that they earn enough to sponsor one or both parents. The salary thresholds start with twice the median wage (currently about $112,000 a year, based on $27 per hour) and go up from there. With the border closures, this policy was put on hold indefinitely.

We don’t know when Immigration will start selecting from the Expressions of Interest that have already been put in. You can still file an EOI to get into the queue, but our guess is that, even if the scheme opened up again tomorrow, you could be waiting 3 – 5 years for a final outcome.

There are other choices, though:

  • Parent Retirement Residence – if your parents are moderately wealthy. They must invest NZ$1 million for 4 years, show that they have another $500,000 to live on, and have an income (such as a pension or rents), of $60,000 per year;
  • Temporary Retirement Visitor Visa – if your parents are 66 years or over. Similar criteria to the Retirement Residence, except that they only have to invest $750,000 for 2 years. But they only get a 2-year Visitor Visa, so the value of this policy is not great in return;
  • Multiple-Entry Visitor Visa – no age or investment requirements. This allows entry for a maximum stay of 6 months at a time, up to a maximum time in NZ of 18 months, over a 3-year period.

Adult Brothers and Sisters

There has been no specific Sibling visa policy since 2012. You cannot simply sponsor a brother or sister because of that family relationship. This means that they must look at one of the following:

  • Work Visa – based on a good job offer. What is a good job offer? It must be for work where your brother or sister has college-level qualifications and several years of work experience (usually, at least 3). It must also be for a job where the employer can prove that they cannot find NZ workers. It is unwise for a NZ family member to offer their relative a job. Immigration will immediately be suspicious that it is not genuine.
  • Student Visa – for a University-level course, preferably a Bachelor’s degree. This is an expensive route. Not only are most international student fees very high, but the applicant must prove that they have at least NZ$15,000 per year of study, of their own money, to support themselves. The NZ family can be sponsors, but they must show that they earn enough to do so, and they may also need to prove that they can provide accommodation. The advantage of getting a Student Visa like this is that, upon successful graduation, one can get a 3-year open Work Visa to look for a job related to what they studied. This could then lead to Residence.

This is an over-simplified description of what is available, but it may give some food for thought.

Dependent Children

We are talking here about the child of a Citizen or Resident of New Zealand. Generally speaking, a child is dependent if they are:

  • 24 years old or younger
  • single
  • have not had any children of their own
  • not earning enough income to support themselves – that is, they must rely upon parents or other caregivers for their food, accommodation and so on.

There are more specific rules depending upon their particular age.

The child may be biologically related, or adopted. Non-official or “customary” adoptions can sometimes be recognised, but if your home country has a well-developed administrative or legal system, then you would be expected to have the necessary Adoption Order issued by the government or by the courts.

Special Direction

People talk about these a lot. A Special Direction is a request to the Minister of Immigration to help where there doesn’t seem to be any other way. The trouble with these is that a great deal of work and cost can go into putting such a petition together, only to get a simple “Yes” or (more commonly) “No” answer, without any reasons why.

There is no point in pushing the Special Direction button unless you have tried everything else first. Otherwise, the case will simply be sent back with a “try your luck elsewhere” message.

We are usually reluctant to suggest a Special Direction because the outcome can be so uncertain. Sometimes, though, we suggest that a person asks for a certain policy requirement to be waived (set aside), such as an age restriction or an adverse health condition. You’re not asking for a visa, just for the chance to try for one. A blog from earlier this year touches on examples where Special Directions can be used to help people already in NZ, and sometimes they can work for people offshore, too.

How We Can Help

Through an initial consultation, we can usually work out whether there is any realistic avenue for you to consider. We can do this in-person, or by Skype or Zoom. In the last 18 months many of our meetings have bee online, for obvious reasons.

We can also normally quote a fixed fee to take on your case. Be warned: We aren’t the cheapest, but we like to think that we are good at what we do. And we will tell you honestly whether you should even try the strategy which we have identified.

Contact us directly to set up a meeting.

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Success Story – SMC Appeal for a Marketing Specialist

New Zealand is facing another lockdown. It is another challenging time of the year for everyone, particularly migrants whose future in New Zealand remains uncertain. I believe there is nothing better to share than a success story of our client’s successful residence appeal.

As you may know already, since the COVID-19 lockdown in March 2020, the Government has postponed a number of visa programmes, including selections for Expressions of Interest (EOI) for the Skilled Migrant Category (SMC). This decision has left many skilled migrant workers unable to submit an SMC residence application.

An article published on stuff in April 2021 listed the latest Immigration NZ (INZ) stats for the EOI and SMC queues. Applicants are expected to wait two years for their residence applications to be decided. As of 16 August 2021, INZ currently has 11,568 unallocated SMC applications on hand for applicants who are in New Zealand. Those with an existing SMC residence application already lodged with INZ are left with two obstacles. Firstly, they have to face a two-year wait before their application is allocated. Secondly, is to have their applications approved by INZ.

Our client is one of the migrants who is in New Zealand on a temporary work visa which does not guarantee him residency. His SMC residence application was also stuck in the largest backlog of applications with a two year wait time. Therefore, when INZ declined his SMC application in February 2021, our client’s only option was to appeal his declined residence application with the Immigration and Protection Tribunal (IPT). To have the IPT overturn his SMC residence application was an important outcome for our client. By appealing, he had another shot at getting his SMC application re-assessed by INZ. He would not be able to submit another SMC application if the appeal was not successful.

Background

Our client submitted an SMC residence application with INZ in April 2019 based on his current employment as a Marketing Specialist (ANZSCO 225113). Nineteen months later, INZ conducted a phone interview with our client and his employer to verify his employment. Following the interview, INZ issued a Potentially Prejudicial Information (“PPI”) letter raising concerns relating to his skilled employment. INZ was not satisfied that our client’s employment substantially matches the ANZSCO description of the Marketing Specialist job as required by the residence instructions. A substantive response was provided to INZ addressing all their concerns.

However, INZ concluded that he did not perform the ANZSCO core Tasks and, importantly, that the job was not sufficiently skilled to equate to “skilled employment” for the award of points. Without points for skilled employment or skilled work experience, his application could not be approved under the Skilled Migrant category. When our client approached us at that stage, he knew that his last hope was to appeal INZ’s decline decision with the IPT. The IPT’s role is to determine whether INZ conducted a correct assessment of the residence application.

The Residence Appeal

Conducting a thorough review of the SMC application and the INZ decision is the most important step before submitting a residence appeal with the IPT. We needed to identify INZ’s errors with their assessment. This required conducting external research on the actual role and what it entails, in order to demonstrate that our client’s role is indeed skilled and that INZ’s assessment was flawed.

Following the thorough review and extensive research, we identified that INZ failed to consider the relevant Core Tasks for a marketing specialist properly. INZ did not engage with the evidence presented, and placed too much emphasis on the telephone interview with our client, which influenced INZ’s decision.

We provided various arguments which criticised INZ’s approach to his SMC application. The IPT accepted almost all of the arguments we presented. 

There were two main errors in INZ’s decision that the IPT knocked down, which we want to highlight here:

1) Overlooking the evidence produced

The IPT found that INZ acted unfairly in their assessment by overlooking the evidence that had been provided. INZ was concerned that our client did not mention the supporting documents during his interview with INZ. For example, he provided evidence that he supported business growth and increase in sales growth. INZ’s concern that he did not refer in his interview to the evidence produced later on, overlooks the fact that the letter of concern is meant to provide an applicant with a genuine opportunity to produce further evidence supporting his application.

At no stage during the interview did INZ ask our client whether he carried out the specific core tasks of a marketing specialist. Instead, the IPT concluded that the interview of less than half an hour largely proceeded with the client providing basic information in response to elementary questions raised by INZ.

2) Focusing on the information provided at the interview

The IPT found that INZ’s focus on the information given at the interview did not respect the purpose of the letter of concern process. That is, to provide a genuine opportunity for further and better evidence to be provided. The result was that INZ did not have adequate regard to the more detailed evidence provided in response to the letter of concern. INZ failed to engage with documents provided in support of his residence application.

The Residence Appeal was successful, and the IPT returned the SMC residence application to INZ for a correct assessment. A copy of the IPT decision can be found here.

Moral of the story

Our role as immigration specialists is to find a solution. It’s all about transparency; dig deep and lay out all the facts on the table. Sometimes, focusing on INZ’s decision on its own is not enough. We need to go beyond the INZ decision to make proper arguments to the IPT as to why there are errors in the decision.

In the above scenario, we researched marketing specialists and their roles from external sources and other IPT decisions. It enabled us to demonstrate that the documents provided to INZ supported our client’s claim that he performs the ANZSCO core tasks. It was important to understand what the role entails and what the documents provided were. Otherwise, it would be difficult to argue why INZ was wrong to overlook the evidence provided. At the time of writing, we have not had feedback from INZ about the residence reassessment.

If you or someone you know is in a similar situation and needs assistance with lodging a residence SMC appeal, don’t hesitate to contact us.

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A Ban is a Ban – Unless it’s Not

There is a nasty little rule in the Immigration Act , which has given a lot of people grief and trouble in the past. It says that you cannot be granted a visa if you have “at any time, been removed, excluded, or deported from another country.” That is a permanent ban, no matter how long ago this happened to you. The only way to get past this is to request a Special Direction from the Minister of Immigration. See James Turner’s recent blog about deportation where he mentions this.

Quite often, people are banned from applying for visas to Australia for 3 years. When they try to get a New Zealand visa, they are told that they were “excluded” from Australia so that they can’t get a New Zealand visa. In many cases, this is wrong, and they were not excluded at all.

Being “Excluded”

Now, it is pretty clear in many cases what it means to have been removed or deported. Being put on a plane home by Government officials is how people commonly imagine deportation. In New Zealand, you are “deported” if you leave the country voluntarily, and Immigration is legally able to serve a Deportation Order on you – even if they have not done so yet.

But what does it mean to have been “excluded”? The Immigration Act is not very helpful because it doesn’t describe what it is. It basically refers to people who are not allowed to get any kind of visa at all unless the Minister intervenes. This includes people who have committed serious crimes, or are likely to; or those who represent a risk to security or public order.

The High Court considered this in the case of EM decided in 2019. After looking at the legal context, Justice Cooke concluded that to be excluded means to be completely prevented from entering a country – “re-entry is not allowed”:

To be excluded from another country contemplates a prohibition on re-entry into that country. If a person has committed some transgression that adversely affects their rights to re-enter a foreign country but it does not remove those rights, they will not have been excluded.

Chief Executive of the Ministry of Business, Innovation and Employment v EM [2019] NZHC 1966 (13 August 2019) at [36]

The Judge rejected the argument by the Government’s lawyers that partial prohibition upon entry still amounted to exclusion. Mere restrictions on entry were not sufficient. On the other hand, a complete prohibition on entry, even if it was temporary, would amount to exclusion.

The Australian Ban – PIC 4014

In most cases, when you apply for an Australian visa, you must meet one or more of the Public Interest Criteria (“PIC”) set out in the Migration Regulations. These set out risk factors to be considered when deciding whether to grant the visa. One that features frequently is PIC 4014, which applies to anyone who left Australia while they were an overstayer, or while they held certain types of Bridging Visas. They can only get a visa which requires PIC 4014 to be met, if:

  • they apply more than 3 years after they left Australia; or
  • they can show that they have “compassionate or compelling circumstances” affecting the interests of Australia, Australian nationals, or New Zealanders (again, this is a simplification).

The second option is a bit like the Special Direction avenue available under NZ law.

Importantly, though, PIC 4014 is not used for every visa type. Exceptions include certain job-based and partnership visas, and some Residence-class visas. This means that the PIC 4014 ban is not a complete ban. The problem is that Australian Home Affairs uses the term “exclusion” when they make their decisions. However, they are not applying NZ law. Their reference to “exclusion” doesn’t automatically mean the same thing as it does in this country.

EM in the High Court case mentioned above got caught out by PIC 4014 too. The High Court Judge in the EM case said that if EM had already tried, and failed, to get visas under the other categories available to him, then this would show that he was completely excluded for that 3-year period – that is, there was no way he could get a visa. However, as he had not made the attempt, he was not excluded.

Moral of the Story

To be “excluded” means a complete ban on entry into a country in any way, even if only for a temporary period. Merely being prevented from applying for certain types of visas during that period is not enough.

If you know someone with a similar history who has been told by Immigration New Zealand that they cannot get a visa, there may be an answer to that. It will depend on their personal background and their experience with the immigration authorities of the other country.

What I have set out above may not undo the problem in all cases. However, it is certainly something we can take on. Contact us to find out if we can help.

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Win a no win situation by thinking outside the box

As immigration practitioners, we are usually faced with difficult cases that seem to be a no-win situation. Such situations reminded me of one of my favourite quotes from the popular TV show “Suits”, where Harvey Spector said “Win a no-win situation by rewriting the rules”.

I recently received a thank you letter from the Immigration & Protection Tribunal (IPT) acknowledging my representation in a residence appeal case. It made me think again as to what made this case special and how we managed to win the Appeal. The simple answer, to win a no-win situation, is we needed to think big and get creative.

Background

We were approached by a NZ citizen, a mother of two young children. Her husband is an Afghani citizen living in Pakistan. She only lived with him for approximately two months and has not seen her husband for three years since their marriage.

With the Covid-19 Pandemic and the border closures, it made it almost impossible for them to re-unite and live together as a family. Under the current border restrictions, for our client to travel to New Zealand he must hold a Partnership Work Visa or a Resident Visa. Given the couple have lived together for less than 12 months and the lengthy period of separation, Immigration NZ (INZ) will not approve the Partnership Work Visa application or a Resident Visa under the Family Partnership Category.

At this point, my initial opinion was there is no way for them to re-unite, unless the New Zealand citizen wife relocated with the children to either Pakistan or Afghanistan to live with her husband and get a chance in securing a Partnership Work Visa. However, this was not a feasible option for the NZ citizen wife and their children for various reasons, such as the Covid-19 pandemic outbreak in the region, and safety and security risks. These reasons could also apply to many people, therefore, we had to pause and think outside the box. How can we make this family’s circumstances special and advocate on their behalf to unite together in New Zealand?

Our strategy was to make an “Out of Policy” residence application. We submitted a Residence application to INZ knowing it will be declined as they do not meet the 12 months of living together requirement to be granted a Resident Visa. Once the Residence application is declined, we will appeal to the IPT that our client has special circumstances that warrants the grant of Residence as an exception to the residence instructions.

As predicted, the Residence application was lodged and declined on the grounds I mentioned above.

The Residence Appeal

We lodged the Residence appeal on the grounds that the decision to decline the residence application was correct but our client has special circumstances that warrants consideration by the Minister of Immigration to grant Residence as an exception to instructions.

Winning a Residence appeal on special circumstances is difficult. In the High Court decision of Rajan V Minister of Immigration [2004] NZAR615 (CA), Justice Glazebrook defined special circumstances as “circumstances that are uncommon, not commonplace, out of the ordinary, abnormal”. So we needed to make our client’s case stand out, which was not a walk in the park.

The first step was to demonstrate that our client has no option to re-unite with his family other than being granted Residence as an exception to instructions. The Covid-19 Pandemic outbreak is worldwide and the security issues in Pakistan and Afghanistan are shared by many people. Therefore, we had to dig deep into our client’s situation to identify the relevant factors that made his case special and uncommon, which would assist the IPT with its decision.

We argued that our client’s special circumstances arose primarily out of his relationship with his New Zealand citizen wife, the best interests of his two New Zealand-citizen children, and the significant difficulties that the wife and children will face if required to live in Afghanistan or Pakistan.

Here are some of the points we argued that:

  • Our client is in a genuine and stable partnership with his New Zealand-citizen wife and they have two New Zealand-citizen children.
  • The living circumstances for Afghanis living in Pakistan are not safe and will have a negative impact on the wife and children.
  • The COVID-19 outbreak in Afghanistan and Pakistan is serious.
  • There were genuine and realistic reasons, with evidence, why the New Zealand wife cannot relocate to Afghanistan or Pakistan. Simply stating that there are security issues in the region or the Covid-19 pandemic outbreak is out of control will not convince the IPT to decide in our client’s favour. We needed to go beyond the basic information. For example, in our case, the NZ Citizen wife’s experience from her last visit to Afghanistan and Pakistan was traumatic. She and her children encountered health issues due to being in a different environment with lack of health services. We provided medical reports that confirmed that she suffered from stress-related disorders and depression which would get worse if she returned to any of those two countries.
  • Outlined the difficult position of Afghanis living in Pakistan particularly in the Covid-19 environment. This was backed up by recent reports from Amnesty International, European, Human Rights Watch World Report 2021 and various other genuine sources.
  • We outlined to the IPT with supporting documents that the best interests of the NZ Citizen children would be met by being raised by both parents in New Zealand.

The Appeal outcome

A copy of the decision can be found on the IPT website. The Tribunal found that our client had special circumstances that warranted the grant of residence as an exception to instructions.

The IPT was satisfied that our client and his New Zealand citizen wife are in a genuine and stable partnership, despite their lengthy separation. The best interests of their two New Zealand-citizen children are best served by them being reunited with their father in New Zealand. The wife and the children have a strong family nexus and support in New Zealand. By contrast, our client and his family have no realistic option to live together in a safe and secure environment outside New Zealand. They face significant difficulties in living together in Pakistan and Afghanistan, due to the security issues and health risks there, complicated by the current pandemic.

Final outcome

The Associate Minister of Immigration agreed with the IPT’s recommendation and granted Residence to our client. He will now be able to join his wife and children in New Zealand where they can live in a safe environment.

To get to this stage, it required extensive research outside the Immigration policy. We had to rely on international sources, evidence and documents to back up our client’s claims. We had to ask the client the right questions and give them clear instructions/guidance on what documents they can provide to back up their claims.

If you or someone you know is facing a similar situation where they don’t believe there is hope, let them contact us. We can help identify their options and provide them with the right guidance to achieve their goals.

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Can Immigration Search Your Phone?

This is an issue of data privacy and fishing expeditions by officials. The message is “be careful, and know your rights”.

Our firm has been doing Partner visa applications for a long time. The couple needs to show that they have a genuine relationship. In the last few years in particular, people have pointed to electronic communications as proof. This ranges from Facebook relationship status, to text messages and video calls, and hundreds of pages of emails.

On the Spot in an Interview

Visa officers often call for face-to-face interviews with both the applicant and their supporting partner. They ask to see people’s mobile phones, because the applicant has said that they keep in touch by text a good deal, and the officer wants to verify that.

But they may not stop there. Once they have the ‘phone in their hands they can open other apps and take a look around to see if there’s anything which might be suspicious. Some of them do this, according to accounts from our clients and professional advisers, as well as evidence on files we have seen which points to Immigration officers seeing material totally unrelated to what they were originally meant to be looking at.

Why is this Wrong?

They can’t do this. As pointed out by my colleague Peter Moses in a recent article for NZAMI, the collection of personal information in this manner may amount to a breach of the Privacy Act 2020 and in particular:

  • The requirement to obtain the informed consent of the subject before accessing their information (Principle 3), and give reasons why it is being collected; and
  • The data collection must be done lawfully (Principle 4).

For instance, if the visa officer says that they want to see the ‘phone in order to verify that a couple text each other regularly, but they also go on to poke around in case there is something on board that suggests the person is involved in fraud, then that is an improper use of the access that they have been given.

It is a bit like the Police knocking on your door to ask to search for a dangerous individual in your back yard; and while they are there they turn the place over to see if you are storing drugs. Even they have to get a warrant to carry out such a search. The mere fact that someone hands over their ‘phone for inspection does not give an official a free pass to peer through anything they like.

There is another reason why this sort of thing is a bad show. Legally, the applicant has the responsibility to make their case for a visa to be approved. Immigration is not required to go beyond what they are given in order to make a decision. If, for example, someone refused to let an officer see more than they are prepared to let them see, then there is no legitimate way in which they can be forced to give access to all their personal affairs on the pretext that “I need all this information to do my job”. That doesn’t prevent some overbearing behaviour, including threats that a failure to cooperate will lead to an unhappy ending.

When approached for comment by NZAMI, Immigration New Zealand said the following:

Immigration officers who undertake face-to-face interviews have been
trained to respect the applicant’s privacy, as well as adhere to New
Zealand’s Privacy Act 2020 and the administrative law requirements
of fairness and natural justice. That is why full and informed consent
must be granted by the applicant before the immigration officer views
content on the mobile phone. Immigration officers should only look at
content on the phone that they have received permission for, and this
should be done in full view of the applicant. If an immigration officer
wants to view any other content, they must seek permission first.

(quoted in NZAMI E-news, 25 June 2021)

Moral of the Story

One answer is to refuse to hand over your ‘phone at all. We don’t recommend that as a starting position, because there may be very helpful evidence on board which would improve your chances of success. Furthermore, it could be seen as meaning that you had something to hide – when you don’t. While the refusal to provide information on request, on its own, should not be used against someone, immigration staff are only human and may not be able to help forming a negative opinion that colours their final decision.

Instead, the right approach is to ask the visa officer to explain exactly what sort of material they want to look at. Then, make sure that you can see what they are doing.

If they stray, you have the right to require them to hand the ‘phone back. If they refuse, then stop the interview. You would then have grounds to make a complaint of improper conduct, notify breaches of the Privacy Act to the Commissioner, or even an approach to the Police if you don’t get the item back promptly (although it is pretty unlikely that an official would hang on to the ‘phone if you threatened to escalate the matter).

It should be clear that this topic is important for matters other than immigration cases..

A visa decline resulting from this sort of fishing expedition may be challenged, because it relies upon information improperly obtained. Sometimes there is a “smoking gun” in the file materials which gives the clue to exactly what an officer was looking at, although it can also be difficult to piece that together.

Contact us, if you are aware of a situation where Immigration might have got hold of more information than they were entitled to see.

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Here It Comes – the New Work Visa Regime

Way back in February 2019 we alerted people to Immigration’s plans to overhaul employer-assisted Work Visa policy. The essential features of the scheme were laid out by Sahar Shamia in a more recent blog in February this year. On 7 May 2021 Immigration New Zealand finally unveiled how the scheme will roll out.

As you can see, this has been a long time coming. The COVID-19 response put the brakes on a number of items in INZ’s change agenda. From the outset, though, it was clear that they were going to make it happen. So here’s how it goes . . .

The Timetable

Almost all current Work Visa streams based on a specific offer of employment are being shut down. However, most of them will still run as normal until 31 October 2021. The critical date is 1 November, when the new “3-gate” system opens for visa applications.

The first step along the way is the closure of certain categories on 30 June:

  • Accredited Employer (the existing scheme)
  • visas for labour hire companies
  • Approval in Principal to recruit Essential Skills Workers

From late September 2021, employers who want to hire migrant workers will be able to register for the new types of accreditation that are available. This will be an online system which INZ claims will be “largely automated”. Hopefully, this means that it will not take too much work either for employers or INZ staff to get through the inevitable flood of applications for accreditation.

A couple of visa classes are not affected by all of this, such as Religious Worker Visas. This is just as well for faith-based organisations, who would otherwise face a real struggle meeting the requirements of the new accreditation. Although the previous Minister of Immigration suggested a couple of years ago that it would be “Accreditation Lite”, we have yet to see the detail of what it involves, so that it is not wise to assume that this is going to be a walk in the park for those who need to get on board.

What Are the 3 Gates Again?

The existing visa process, in most cases, is very much “migrant driven” – that is, someone who wants a Work Visa is The Applicant all the way through. Their name is on the forms, and success or failure at every step of the assessment process belongs to them. The employer wanting to hire them merely supports the application along the way.

The new system shifts the focus – and, arguably, much of the burden – to NZ employers. It goes like this:

A. Employer Gate – Immigration decides whether employers are suitable to employ migrant workers. There are 3 main accreditation levels:

  • Standard — for employers who want to hire 5 or fewer migrant workers;
  • High-Volume — for employers who want to hire 6 or more migrant workers; and
  • Franchise/Labour Hire – for businesses which supply staff to third-party places of employment.

The criteria for accreditation by High Volume employers is more stringent than for Standard. Franchise/Labour Hire criteria may be even tougher again. It may become critical to decide whether you want to hire more than 5 people in a year. No-one has yet explained to me how some companies would reliably predict how many people they need 12 or more months in advance.

B. Job Gate – The job on offer is reviewed to see if it pays the market rate; the terms and conditions comply with employment laws; and the employer has done a labour market test if they need to do so. Note that a particular visa applicant does not feature here – this is all still squarely with employers.

C. Migrant Worker Gate – Finally, the migrant enters the picture. They apply for the Work Visa for the job cleared through the Job Gate, and offered by an Accredited Employer. They must be of good health and character, and have the skills to do the job..

It may be fairer to lay most of this process on employer companies, rather than individual migrants. It does suggest that employers will increasingly need professional assistance, both to apply for accreditation and to ensure that they have advertised their jobs properly. It also seems likely that, while an employer may have a qualified adviser working for them, migrants should have a separate agent who is looking out for their interests.

I’m an Employer – What Should I Do?

If the detailed policy for this scheme has been written, we haven’t seen it yet. There’s not much we can say about what employers will need to prepare right now. There are a few things to which you should start giving attention now, though:

  • Can you anticipate how many non-NZ people you might need to hire in the next year after November 2021?
  • Are your employment agreements up-to-date with the Holidays Act, parental leave, rest- and meal-break provisions, etc.?
  • If you already employ people on Work Visas, are the visas still valid and do they allow the person to work for you?
  • Have you documented how you are training and upskilling your existing staff to show that you are being a good employer, and giving opportunities to NZ employees to improve their skill-set? If not, put something in place now, and consider hiring an HR specialist firm to help you with that.

Those who have already been thinking about accreditation under the old system should hold off until the new programme opens for employers to enroll in September 2021 . Even though you can still apply for old-style accreditation, you can only use it to bring on new staff until the end of October. After that, any new hires must be under the new 3-gate system.

Will the Scheme Deliver?

The first challenge faced by Immigration NZ will be how it will handle the wave of new accreditation applications in September. It has been estimated in various places, including MBIE management, that there will be 25,000 employers wanting an accreditation ticket when the time comes. Even if we assume that a new online portal works flawlessly – and how many of them do that? – it is hard to believe that we aren’t going to end up with yet another backlog clogged with undecided applications for many months, if not longer.

The public-facing fact sheet published by INZ says:

Timeframes for providing further information are dependent on policy decisions and disruption caused by the COVID-19 pandemic.

I would read that disclaimer much more widely. The schedule that INZ has already put out may suffer project creep very early on. For example, there is no word on whether the online accreditation platform has even been written yet, much less tested.

According to official statements recently and in the past few years, the new scheme is meant to deliver higher-quality migrants to the job market, and to reduce migrant exploitation. As to the first point, concern is now being voiced that we may already be missing the boat on attracting high-skilled workers. The progress on vaccination programmes in other developed countries is upsetting our comfortable assumption that, just because we beat COVID-19 here last year, New Zealand remains the most attractive place on earth to live.

And worker exploitation? My opinion is that imposing accreditation will discourage some employers from hiring migrants via job-specific visas. Instead, they will switch their attention, even more than they do now, to University graduates who get 3-year Post-Study open Work Visas. This group can work for whomever they like without needing prior employer sponsorship. INZ and the Labour Inspectorate have no easy way of tracking who is working for whom, and under what conditions. Add to this the fact that Australian research has established that exploitation is more likely when migrants must rely on a single employer for their tenure in the host country. In that respect accreditation probably doesn’t make things worse, but it won’t deliver much worker protection.

Posted in Immigration Visas | 2 Comments

Finding a solution is what we do!

We recently secured a work visa for a client who thought her future in New Zealand was coming to an end. Our client arrived in New Zealand on a Talent (Accredited Employer) Work to Residence Visa, which provides a pathway to residence after 24 months. Unfortunately, she was made redundant from her employment due to the impact Covid-19 has had on the economy. Subsequently, she lost her pathway to residency. The client informed Immigration New Zealand (INZ) of her changes of circumstances. This was the right thing to do to ensure she was not in breach of her work visa conditions. INZ granted her a Visitor Visa to sort out her affairs and depart New Zealand.

The Obstacles

At that stage, the client felt hopeless as she believed she had to secure an offer of employment with an accredited employer within one month. If not, she had to pack her bags and return home. Her age also limited her eligibility to apply under the Skilled Migrant Category.

We were faced with three obstacles:

  1. Loss of employment – without an offer of skilled employment, she cannot apply for a visa under the Talent (Accredited Employer) Work Visa instructions or the Essential Skills Work Visa instructions;
  2. The age – if she secured a job with an accredited employer, reaching 56 years of age, limited her ability to apply for a Talent (Accredited Employer) Work Visa;
  3. Time limit – she had one month left on her visitor visa and before she turns 56 years of age.

The Strategy

The first step to solve any issue is identifying what the client wants, what actions have they taken (if any). Then, lay out all the possible options to find a solution – for instance, our client’s goal was to secure employment in New Zealand and apply for residence. She was focused on finding a job with an accredited employer before turning 56 years, understanding that this was her only option, but that was not necessarily the case.

We established that even though she had one month left before her visa expired, she had been actively looking for a job. She had several interviews with different employers in New Zealand but with no job offers yet. We suggested to first apply for a short term Visitor Visa and explain her situation to INZ. Sometimes, being upfront with INZ on why you want to extend your stay in New Zealand (i.e. secure a job) will not negatively impact your situation. In her case, she had recently lost a job and had been actively looking for another job. Therefore, requesting a Visitor Visa for a few more months was a reasonable thing to do.

Once she has a job offer, the right pathway is to apply for a Work Visa under the Essential Skills category. This type of visa does not give her a pathway to Residence in New Zealand. However, it is a step to continue working in New Zealand and allow her sufficient time to establish a pathway to residence.

Essential Skills Work Visa

As per our advice, our client got a Visitor Visa to allow her time to find a job offer. Which she successfully achieved. The employer needed her to start the job immediately. Therefore, we assisted her with an Essential Skills Work Visa application, which was not a walk in the park. We had to work carefully with the documents and evidence supporting her application to ensure we provided a complete and accurate application to INZ.

For instance, we received evidence of advertising. However, the number of applicants who applied for the job were not apparent on the advertising/recruitment documents. We had to correspond with the employer and the recruiter to provide more documents on how the recruitment took place and why they found our client to be the most suitable candidate. Sometimes taking this extra step makes a huge difference. For example:

  • We requested copies of the appointments and interview notes with candidates who were shortlisted;
  • We provided letters from the employer and the recruitment agency setting out a detailed description of the recruitment process. It also helps if the employer and /or the recruitment agency can explain how the successful candidate’s specific skills/work experience meets the requirement of the job advertised;
  • We provided a comparative analysis of our client’s skills and experience with the other candidates who were shortlisted. Such analysis makes it easier for INZ to understand why the employer chose our client and why she was more suitable than the others.
  • Additional documents such as how the employer verified the successful candidates’ work experience with evidence to back it up, such as reference check notes, adds credibility to the employer’s case.

By providing a complete, thorough application to INZ, her Essential Skills Work Visa application was approved within one week. Our client is now ready to prepare for the next step for her Residence in New Zealand.

Pathway to Residence

We identified that our client was qualified and had the skills we need in New Zealand. In order to apply for a Resident Visa under the Skilled Migrant Category, she needed to score 160 points to submit an Expression of Interest (EOI). With her current skilled employment, she will meet the 160 points threshold, with the only barrier to submitting an EOI being her age. We suggested that she can consider putting forward a ministerial request for an Age Waiver. However, ministerial requests are discretionary, it does not necessarily mean it will be successful, but it is an option to pursue.

Finding a solution and drawing a strategy is what we do. If you find yourself in a similar situation, contact us to help plan your journey.

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

Keeping Mum and Dad in New Zealand

For some time, New Zealand has had an immigration policy which allows migrants to sponsor their parents for Residence. This has been viewed as a way to attract and retain migrants, critical for New Zealand’s economy.

However allowing migrants to sponsor their aging parent for Residence in New Zealand has been a a difficult issue for politicians, at least in part due to the significant burden on the taxpayer they can impose – once granted Residence these parents have access to public health services immediately and access to NZ Superannuation payments after 10 years. For these reasons, selections of Expressions of Interest under the Parent Residence category were suspended in October 2016.

After the suspension in 2016, at Laurent Law we met some New Zealand citizen or resident children of parents who were already in New Zealand on Temporary Visas but unable to progress to Residence due to the suspension of the Parent category. The suspension left many parents and their New Zealand citizen or resident children with a difficult problem – how could an aging parent stay in New Zealand, where they have the support of family and in many cases a better quality of life? For some, travel to the home country was a problem due to health of the aging parent, let alone the issue of family being in New Zealand and having little or no support in the home country.

In January 2018 we published a blog regarding some of the successes we have had, in assisting clients to keep their parent in New Zealand despite the suspension.

For some time there was no news on when the Parent Category might re-open, until December 2018, when a Cabinet paper was published which proposed that selections of Expression of Interest under a revised Parent Residence category resume. A revised Parent category was subsequently reopened in February 2020 with the following features;

  1. The previous “two-tier” system, which had differing financial requirements for selections of Expression of Interest and the grant of Residence, was replaced by a single-tier system, with a substantially increased financial requirement. The earning threshold for one sponsor’s income is currently NZD$106,080 per annum for one parent and NZD$159,120 for two parents. This compared to NZD$65,000 per annum under the previous Parent category suspended in October 2016.
  2. The period of time for which the required income must be demonstrated as earned, was set at for at least 2 out of at least 3 years prior to the issue of the Invitation to Apply. There was no specified time period under the previous Parent category suspended in October 2016 – in this regard the policy was unclear.
  3. The requirement for NZD$500,000 settlement funds, under the Parent category suspended in October 2016, was removed.

This led to hope for many.

Covid-19 worsens the dilemma

However it was only a couple of months after this revised Parent Category opened in February 2020 that Covid-19 hit. Selections of Expressions of Interest under the Parent category were suspended yet again (at the time same, selections of Expressions of Interest under the Skilled Migrant category were suspended too).

In October 2020, selections of Expressions of Interest under the Parent and Skilled Migrant categories were suspended for a further 6 months. At the moment there is no information available on whether and when the selections of Expressions of Interest will resume.

This returns us to our original problem, of how to keep an aging parent in New Zealand on a Temporary visa where they are well looked after by family, with the the added difficulty now of a Covid-19 pandemic that poses a significant risk to the health of these parents if they return to the home country. See a recent article published by Radio New Zealand which draws attention to the situation.

  • Consider an aging parent facing return to South Africa where she has no family, which has been particularly badly hit by Covid-19 and also suffers a high crime rate;
  • Consider an aging parent facing return to the UK where she has no family, which also has been particularly hard-hit by Covid-19;

Clearly, these people have some difficult decisions to make.

How can we help?

Laurent Law is happy to offer assistance to parents “stuck” in New Zealand who cannot see a way forward. We can offer thoughtful and considered advice on the problem to help you understand what your options are, what you must do to comply with the law and what the consequences of not doing so might be. For example;

  1. If the parent still holds a valid Temporary Visa, for example a Visitor Visa, they may be able to apply for a further Visitor Visa as an exception to Immigration Instructions. The usual permitted maximum stay in New Zealand on a Visitor Visa is 9 months.
  2. A humanitarian appeal to the Immigration and Protection Tribunal under s 154 Immigration Act 2009, where the parent has become unlawful in New Zealand, is a good option for some. It is important to be aware that the notice of appeal must be filed within 42 days of the expiry of the parent’s last visa; if not, the humanitarian appeal will no longer be available. This can mean time is of the essence. For a humanitarian appeal to be successful, the Appellant must show they have exceptional humanitarian circumstances that would make it unjust or unduly harsh for them to be deported from New Zealand and it is not contrary to to the public interest for the Appellant to remain in New Zealand – this is quite a high legal test. Recent Tribunal decisions indicate that if some particular vulnerability of the Appellant to Covid-19 can be identified, consider for example age or particular health conditions, this can contribute to a finding of exceptional humanitarian circumstances. However, without particular vulnerabilities, the risk posed by Covid-19 alone is unlikely to be seen as exceptional on its own.
  3. If a parent is unlawful in New Zealand and the time period for filing a humanitarian appeal has passed, options include; (a) filing a request for a Visa under s 61 Immigration Act 2009 and (b) approaching the Minister of Immigration for the grant of a Visa by way of Special Direction. In both cases the decision whether to grant a Visa is highly discretionary meaning the outcome can be unpredictable. No reasons need to be given for a decision.
  4. An option for those with enough resources is the Parent Retirement category. This allows applicants to apply for Residence where they can undertake to invest at least NZD$1million in New Zealand, have settlement funds of at least $500,000 and an annual income of at least $60,000 per annum. Note that offshore applications will not be processed until Covid-19 border restrictions are lifted, however onshore applications should still be processed. An applicant may be able to apply for a further Temporary Visa as an exception to instructions to allow them to remain in New Zealand while the Residence application under the Parent Retirement Category is processed and a decision made.
  5. Although selections of Expressions of Interest under the Parent Residence category are suspended, applicants are not prevented from filing an Expression of Interest. Filing an Expression of Interest anyway can be a good idea, so that when selections resume, the applicant is in the queue. Given there is an annual cap under the Parent Residence category of 1000 places, if the applicant does not get in the queue soon, they might be waiting a long time even when selections resume.

Is there a risk of being deported?

Technically yes, if any person is unlawful in New Zealand due to not holding a Visa, they can be issued with a deportation order, taken into custody and placed on a plane out of New Zealand.

However in the case of an elderly individual, perhaps unable to travel due to health conditions and particularly given the difficulties of securing flights to some destinations owing to Covid-19, we somehow doubt Immigration New Zealand would go so far. While we do not wish to condone staying in New Zealand without a valid Visa, it might be the case that a parent remains safe in New Zealand for some time, even if no action to resolve their legal status is pursued or is successful.

Please contact us if you think we can help.

Posted in Immigration Visas | Leave a comment

Help Your Lawyer to Help You

Believe it or not, there are some good reasons why you should make your lawyer’s life easier. If it saves them time, it could save you money. And even if it doesn’t, doing your part to remove obstacles to them doing their job has got to make sense.

See this article in Rocket Lawyer for some general advice about how to get the best out of your legal representative. It highlights the need to:

  1. tell them what your problem actually is (sounds obvious, but it is sometimes difficult to explain it);
  2. ask them to explain when you don’t understand what they are telling you;
  3. tell them the truth. A saying among us lawyers is that we are often the last to hear the truth. My experience is that, when I do finally find out what’s going on, I have to say, “If you had told us at the beginning we could have fixed it . . . Now it may be too late.”

Giving Us Documents

What I will focus on is how you send information to your lawyer. In our immigration practice, a big part of our work is preparing sets of supporting evidence for things like visa applications and appeals. Even just a few years ago, most of that involved collecting and sorting pieces of paper. But technology has swept us into the age of “everything online”. For instance, most New Zealand visa applications can now be filed electronically.

This means that we deal in folders full of documents every day – usually, in the form of .pdfs. This material needs to be sorted into some kind of meaningful order, because ultimately we use this evidence to tell your story in the way that is most beneficial to you. This exercise can make up a major part of the time we spend working on someone’s case.

“Well, that makes sense, that’s a lawyer’s job”. Quite true. But we are also reliant upon dealing with what our clients give us, and how they do it. This ought to be a collaborative exercise because we both want the same outcome. Some people work with us very well, and others don’t. This may be because dealing with lots of documents is not what they do very often. Or it may be because they figure that it’s the lawyer’s job to sort out that pile of raw material. Either way, it leads to outcomes that are not in their best interests.

Firstly, if you are paying your lawyer by the hour, do you want to be charged for billable time spent doing what you might have been able to do yourself? Definitely not. Why pay a lawyer more than you have to? Some people might ask, “Why pay a lawyer at all?” but we won’t go there right now.

Secondly, in a disordered pile of material, perhaps hundreds of pages, things get overlooked. Important things, things that can mean the difference between success and failure, a gain or a loss. While it is the lawyer’s job to identify that smoking gun, or that trump card (excuse the expression), anything that can smooth the way for him or her to locate it has to be valuable.

What Can You Do to Help?

Here, I will use the common scenario of a bunch of .pdfs. We usually get these as a series of email attachments, on a USB stick, or via a file sharing service like DropBox.

  1. Use a folder structure where you can group documents of a similar type together. Hopefully, from talking with your lawyer, you have some idea of the key themes of the job they are working on. Try to follow that. We usually find that, even if someone has made an imperfect attempt to organise things in this way, it makes a world of difference;
  2. Name the documents so that someone else knows what they are. Sending a set of files with the titles “scan 001”, “scan 002” etc. is not helpful. Again, there’s that risk of missing the key letter or report among all the other anonymous documents;
  3. Emails – DON’T send 20 emails with 1 attachment each. Not only does this clog up someone’s Inbox, it also adds to the time needed to extract each one and work out where it fits in the scheme of the assignment;
  4. Give us a roadmap of what you are sending. If it is being emailed, include a numbered list of what is attached. If it is on a USB or on DropBox, we have found it really useful when clients have included a simple Table of Contents document which uses the same names as the documents or folders which it refers to;
  5. A large number of small documents of the same type can be combined into a single, larger .pdf. The classic example is bank statements or invoices. Even if you don’t subscribe to paid software that can do this, there are some cheap or free apps out there – just Google for them. At the same time, make sure that the documents are arranged in a sensible order. Date order is often what we like to work with best, although the situation may suggest a more useful arrangement to you;
  6. People often send us a pile of letters or forms taken as a photo with the camera on their smartphone. This will be because they don’t believe that they have access to anything better, and sometimes that may be true. In other cases, though, it would help us if they tried a bit harder. One reason for this is that the images are usually not very good. The lighting is poor, or the words on a page are not clear, or part of the page is cut off entirely. If you don’t have a scanner, consider using an internet cafe or other service to get it done.

If you don’t know how your lawyer wants to receive the material you will send – Ask. Then, if they can’t be bothered to tell you how to make their lives easier, think about moving on if you can. A cooperative client is a great client, and should not be brushed off.

What About Fixed Fees?

Unlike some law firms, Laurent Law quotes and charges a fixed fee for a lot of the instructions we receive. There are good reasons for us to do this, as we explain on our website. The reader could then be forgiven for thinking that saving a lawyer some time doesn’t matter, because it won’t change what they pay, or how the job turns out.

This is not true. While we do set fees for types of work that we see regularly, these figures are partly based on the amount of time we expect to spend on doing that work. If most of that time is taken up in sorting out someone else’s mess, we will inevitably be pushed to give less time to the “lawyer stuff”, where we can really add value. Law is a business like any other. Its stock, its inventory, is made up of the intellectual capital of its legal professionals, and the number of useful hours in a day. That time is a scarce resource, and the time allocated to your case is never going to be infinite.

If you are not sure what we want, or how we want it, then ask us to tell you. Then give it to us like that, as best you can. I believe that there is a direct correlation between the level of cooperation in this area, and the positive outcomes in the work we do. And that, of course, is why you came to a lawyer in the first place, isn’t it?

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