Residence and Health – When is it Time to Call it Quits?

I am in the unusual position of supporting a recent change in Immigration policy which restricts people’s ability to apply.  This situation is illustrated by the recent case of Sanita Devi who failed in an application to the High Court for relief.  You can read the decision here.

Mrs Devi and her husband have been in New Zealand for nearly 10 years.  While applying for a Work Visa for her in 2008 they found out that she had lupus, a severe autoimmune disease.  Over the next few years Mrs Devi tried for numerous visas.  This culminated in a request for intervention by the Minister of Immigration, which was denied.

A key piece of the story, though, is that originally the couple’s joint Residence application was declined because of Mrs Devi’s medical condition.  Mr Devi later reapplied and left his wife off his Residence application, so that he did in fact get Residence some years ago.  They might have had a residual hope that she could then get Residence too.  The situation now, though, is that the couple probably faces a hard choice about whether Mr Devi should give up his Residence so that they both return to their home country of Fiji.

Previously, it was possible to do what they did – that is, leave a family member off an application because of their health, or other problems, and later see if they can get Residence another way.  This gap has now been plugged.  From 8 May 2017 an application for Residence must include the partner and all children of the main applicant who are already here on temporary visas.  What this means is that if someone tried to leave a family member off their Residence application:

  • the application could be declined for that reason alone, if this was discovered during the course of the application; or
  • if Residence was granted for the rest of the family, and Immigration later discovered that someone had been left off the application, then the whole family could become liable for deportation for “concealing relevant information”.

Now, that all sounds pretty Draconian.  So why do I support it?  The simple answer is that it stops families having false hopes that they can somehow work their way around the system to get everyone in, one day, eventually.  The reality is that most people in such a situation either never managed to achieve this; or, if they did, it would take years and cost a lot in fees to lawyers or immigration advisers.

As the record shows, the Devis have struggled for 9 years to try to get Mrs Devi her Residence.  If the policy had left no room for doubt back in 2008 then they might not have applied for Residence at all – or, at the very least, Mr Devi could not have got Residence on his own.  Maybe the uncertainty and cost of the last decade was a reasonable price to pay for being able to stay in New Zealand in the meantime.  But, as I sometimes ask clients, “Where are you going with this?  What do you want to do with the rest of your life?”

If, in the end, there is no long-term future in this country, then perhaps it is better to learn that early on and make your plans accordingly.

Advertisements

About Simon Laurent, Lawyer

Principal of LaurentLaw Barristers & Solicitors. NZ immigration law specialist.
This entry was posted in Immigration Visas. Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s