Franchises and Skilled Migrant Residence – Not a Happy Marriage

In the last few months we have seen Immigration New Zealand’s attitude continue to harden about allowing migrants to get Residence Visas based on their job as a Retail Manager in a franchise business, such as a supermarket or food outlet.  Here’s why.

In September 2012 Immigration issued an Internal Administrative Circular (IAC) to its staff which claimed to warn of “inconsistencies” in deciding applications for people working as Retail Managers, Café/Restaurant Managers and Office Managers in particular.  What these jobs entail is defined by the Australian New Zealand Standard Classification of Occupations (ANZSCO).   The ANZSCO description requires that such a manager must “organise and control” key aspects of the business.  This includes high-level matters such as budgets, pricing of products and advertising.

Why is it so Tough?

One problem is that in a franchise, whether it is Burger King or a Super Value supermarket, decisions about the range of products, their pricing and how they are advertised are made by the Head Franchisor or the New Zealand Head Office of a multinational.  Those who run individual stores are not allowed to go too far outside those policies.  That is the nature of a franchise, which must preserve the same look, feel and brand from shop to shop.  The conclusion, from Immigration’s point of view, is that someone working in such an environment, has so little control over those high-level functions that they are simply not Managers.

Added to this, although the IAC mentioned above requires Immigration officers to consider each case “holistically” – looking for instance at the size of the operation, the organisation of the branch where the applicant works and so on, to decide how much responsibility they actually have, in fact we see them focusing on ticking off the Core Tasks of the job (according to ANZSCO) as not being performed by the applicant, even though the person actually exercises considerable skill to run a department of a large store.  We therefore see the ludicrous situation that someone who manages a High Street clothing shop with 2 other staff will be approved Residence, while another person with 20 staff to run, who is required to apply the complex policies of a division of a department store, will be declined.

Why is this situation so fatal?  Well, according to immigration Policy the ANZSCO is a Bible which lists every job that exists.  In the Skilled Migrant system, your job has to match some occupation on the ANZSCO.  In the case of retail, you are either  a Retail Manager – which is “skilled employment” and gets you points toward Residence – or you are a Retail Supervisor who runs a team of staff and whose job is not skilled enough, so you don’t get points.  And in almost all cases you must have skilled employment before they will give you Residence. In many cases whole application fail on this point alone.

In fact many the ANZSCO does not list every job under the sun.  Many of us in the industry believe that it was never intended to be used “out of the box” like this to decide whether individual jobs fitted into a particular slot.  The Overview of ANZSCO indicates that its primary purpose was for statistical analysis of job markets:

ANZSCO is intended to provide an integrated framework for storing, organising and reporting occupation-related information in both statistical and client-oriented applications, such as matching job seekers to job vacancies and providing career information.

Andrew Hancock, of Statistics New Zealand, who was a developer of the ANZSCO classification, has commented that

 the information contained in ANZSCO … acts as a guideline for distinguishing occupations from each other, and building a hierarchical structure for statistical reporting… The interpretation and application of ANZSCO is for statistical purposes and is not legally enforceable as a finite statement/requirement for any occupation discussed …or contained in ANZSCO itself…”

[thanks to Rowland Woods for this quote from a recent paper on the SMC problem.]

Its use to fine-slice a particular person’s job to work out if it qualifies for points for Residence is asking more of the ANZSCO than it was intended to deliver.  I have been recently involved in talks with some industry colleagues about challenging Immigration’s approach to this Policy.

Our Experience

We have succeeded in getting a number of Residence applications approved for people working in franchises.  But in many cases it involves a battle, detailed analysis of what the person actually does (as opposed to what it says on their Job Description), and we will work alongside the employer to get to the core of what the job is about.

Anyone who wants to apply for Skilled Migrant Residence based on a job as “Manager” in a franchise store should get professional help.  The applications are technically challenging even for experienced advisers.

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About Simon Laurent, Lawyer

Principal of LaurentLaw Barristers & Solicitors. NZ immigration law specialist.
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