In the News This Week: Partners and Overstayers

The importance of immigration to life in New Zealand is underscored by the amount of media attention it receives.  This week is no exception.

Partnership Visas Still a Sore Point

It started with my blog in February, which sparked some interest from Radio New Zealand about an upswing in decline of Partnership Work and Resident Visas.  The latest round involves Immigration New Zealand denying that there’s any conscious squeeze on such applications.  This was in the context of a street protest against what people call an unfair approach to such applications.

While the latest story focused on the question of how people can show documents to prove that they live together, the real issue is wider.  Immigration is tasked to decide whether a couple is in a “genuine and stable relationship”.  The Policy suggests a range of ways to establish this, but ultimately it is a subjective judgment.  And nowadays, scenarios which were once broadly acceptable no longer pass the test.  The numbers of declines speak for themselves, visible to anyone on INZ’s own published statistics.

This means that the shift is one of office culture.  One theory I have heard floated is that visa officers were told a year or two back that they were handing out approvals too easily.  As a result, the pendulum has swung back to presuming that applications must be declined unless they have to be approved.  Minor inconsistencies become “credibility” issues which can poison an entire application.

Decision letters contain catch-all observations like “We are not satisfied that your relationship is genuine, stable and likely to endure”, without explaining why the writer reached that conclusion.  This sort of approach has been criticised by the Courts as a de facto failure to give reasons for the decision.  What may be needed here is a few judicial reviews of partnership decisions in order to drive that point home.  Unfortunately, this is an expensive route to take, but we remain on the lookout for a worthy case to run with.

Overstayers – What’s the Solution?

Another article from TVNZ News declared, with shock, that NZ is flooded with more than 10,000 overseas people without visas – a “pool of foreigners”.  Like this was a surprise.

Actually, this is the lowest number of overstayers on the record since the Millennium.  Back in 2000 we clocked 20,000, and the numbers have been slowly falling since 2004.  It is hard to know how accurate the official figures are because, as my colleague Richard Small commented, many of them go underground to avoid detection.

Is this such a terrible crisis, as TVNZ would suggest?  To put it in perspective, people without visas represent 0.2% of the population.  Australia, with about 62,000 illegals, sits at the same level.  The UK could still be struggling with more than 300,000 people without visas, or 0.4%.  And the US may harbour 11 million illegal aliens, or 3 in every 100 people on American soil.

This is not to deny that we have a problem.  We do.  Often, the status of an overstayer affects the lives of family members who support them – or whom they support, by working under the table, remitting money home and so on.  This is particularly so in Pacific Island communities, which still account for a significant proportion of overstayers.

One way to fix this is to offer an amnesty to unlawful migrants so that they can regularise their status.  This last happened in the year 2000.  As a result, numbers fell by about 2000, but popped back to previous levels after a year or two.  For some reason, it doesn’t seem to fix things.

We often tell people who come to us, and who have a valid chance to hold a visa, to self-deport themselves home and apply to come back.  This is a risky strategy, but we have made it work for people in long-term relationships with New Zealanders (especially if they have children), or those with a strong job offer.  The big problem with trying this route is the attitude of visa staff in some notorious INZ offices, in India and China in particular.  They almost always point to the applicant’s poor immigration history to decline their application because they fail the “bona fides test”.  That is, they are likely to breach their visa conditions if they are allowed back in, because they’ve done it before.

There is sometimes a way around this.  While applicants for temporary visas must always pass the bona fides test, those applying for Residence do not.  Therefore, if someone is to be sponsored by their NZ partner, and has lived with them for over 12 months already, we recommend that they go straight for a Residence application after they fly home.  It takes longer, and creates an issue because the couple obviously can’t live together – which they are meant to do in order for their relationship to be recognised.  However, it is a more certain route than the other ones which people persistently try in vain – requests for a visa under section 61 of the Immigration Act, or “appeals” directly to the Minister.

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About Simon Laurent, Lawyer

Principal of LaurentLaw Barristers & Solicitors. NZ immigration law specialist.
This entry was posted in Business, Citizenship, Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas, Politics, Practice of Law, Refugees. Bookmark the permalink.

2 Responses to In the News This Week: Partners and Overstayers

  1. Mary Diana Ben Ammar nee Harris says:

    Thankyou for this information. I have been married over a year to my Tunisian husband whom i live with in Tunisia. I am a New Zealand Maori. We have lived together for around six months. On and off due to problems in NZ where i fly home to sort. Twice my husbands visitor app. has been declined. Dubai first declined it and also lost my husbands original passport that was asked for. It took us four months to find. We only got sorry let us know when you find it. From a immigration visa app. worker. Second a visa app. worker from india declined the visa on not bona fide. Both immigrations used the not genuine speech. Only we know we are genuine. As for bona fide my what is that. My husband hasnt been out of his country. He would of come back to Tunis. I gave up my job sold most of my possesions to come here cos i was told to make a sacrifice and come live here . While i have been here my house became mortgagee sale. I have emailed hon. KRIS FAAFOI to let me take my husband home to sort this and continue the immigration process back in New Zealand. I also sent proof from my bank about this situation. The reply it will take four to five months to hear a decision. This country is a world known hotspot for terrorism i cant go out by myself cos when i have men try to pick me up and i always get scammed for money at the souks. At wits ends with immigration. Please help me if you can

    Like

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