Another Hurdle: Section 49(1) Conditions

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All Residence Visas, when first granted, are subject to 2-year travel conditions. This allows the Visa holder to travel in and out of New Zealand for 2 years and to demonstrate to Immigration New Zealand (“INZ”) that they have made a commitment to New Zealand in order to qualify for a Permanent Resident Visa (“PRV”). For further detail on commitments to New Zealand, refer to Dew’s blog here.

Depending on the type of Residence Visa, it may also state:

“This visa is subject to conditions imposed under s 49 of the Immigration Act 2009

If your Residence Visa label states the above, then your Residence Visa is subject to “s 49(1) conditions” which you must comply with. This blog will explore the different types of s 49(1) conditions that are attached to a selection of Residence Visas.

Types of Conditions

Skilled Migrant Residence Visa

Depending on the type of EOI points claimed, the Principal Applicant (“PA”) of the Residence Application may be granted a Residence Visa that is subject to s 49(1) conditions.

If the PA gained Residence based on an offer of skilled employment or current skilled employment of less than 3 months for which they have claimed bonus points for it being outside the Auckland region, the Residence Visa will be subject to conditions. The conditions differ depending on whether it was an offer of current skilled employment of less than 3 months, and whether the bonus points were awarded or not by INZ.  For example, if someone got bonus points for a job offer outside Auckland, they must remain in that job for at least 12 months, or in another job for which bonus points apply.

If the PA gained Residence because they are eligible for occupational registration, the visa is subject to the condition that they provide evidence from the New Zealand Medical or Dental Council that they successfully attended an interview with the Council within 1 month of their arrival in New Zealand.

Employees of Relocating Business Residence Visa

All Residence Visas granted under this Category are subject to s 49(1) conditions. The PA must be employed in the relocated business for 24 months from the relocation of the business.  In addition, if their job requires them to ensure that the business complies with NZ employment and immigration laws, they must demonstrate that the business has done so.

Entrepreneur Residence Visa

If the PA was granted an Entrepreneur Residence Visa after operating a business for 6 months, making a capital investment of $500,000 in their business and creating 3 full-time jobs for New Zealanders, their Visa will be subject to s 49(1) conditions.  

To comply, the PA must be self-employed in their business, retain the investment and maintain the created full-time jobs for a minimum of 2 years (including the time spent operating the business on an Entrepreneur Work Visa).

Migrant Investor Residence Visas (Investor 1 and 2)

All Residence Visas granted under Investor 1 and 2 Categories are subject to s 49(1) conditions.

The s 49(1) conditions differ depending on the Investor Category, in particular, the investment period and minimum period of time in New Zealand. If a Residence Visa was granted under Investor 2 Category, an additional condition applies depending on the points claimed for English language ability. The PA is also required to submit evidence of having retained the investment to INZ on 2 occasions – (i) within 3 months of the 2 year investment period; and (ii) within 3 months after the expiry date of the investment period.

Another requirement to note for Investor Visas is that, because the investment period goes beyond 2 years (3 years for Investor 1, and 4 years for Investor 2), the 2 year travel conditions on the Residence Visa will expire at the 2-year anniversary of the investment period. The PA should therefore seek a Variation of Travel Conditions on their Residence Visa for a further 2 years if they wish to travel outside New Zealand. To be granted further travel conditions, the PA must also have complied with s 49(1) conditions to date.

Parent Retirement Residence Visas

All Residence Visas granted under this Category are subject to s 49(1) conditions. The PA is required to ensure that the investments are retained in New Zealand for 4 years; and they are required to inform INZ of any changes to their New Zealand address during the investment period. The PA is also required to submit evidence on two different occasions – once within 3 months of the 2-year investment period and once within 3 months after the expiry date of the investment period.

Further Conditions

In addition to the conditions set out above, the PA under any Residence category must ensure that they inform the nearest branch of INZ if their New Zealand address changes during the period they are subject to the s 49(1) conditions.

It is also worthy of note that if Secondary Applicants (i.e. partner and/or dependent children) (“SA”) were included in the Residence Application, and the Residence Visas were later granted, SAs will also be subject to s 49(1) conditions that apply to the PA. Only the PA must comply with s 49(1) conditions and have them removed in order for the SAs to become eligible to seek PRVs.

Once the conditions have been met, the PA must seek removal/cancellation of s 49(1) conditions, by giving INZ the necessary evidence in a timely fashion. The timing for filing this request may differ for different types of Residence Visas, so it is also important to know when they must be submitted.  Usually this is spelt out in the original INZ letter approving Residence, but it may be wise – especially in complicated situations like the Investor category – to get professional advice.

What happens if the conditions are not met?

If the PA fails to comply with s 49(1) conditions, they will become liable for deportation pursuant to section 159 of the Immigration Act 2009. There is a right of appeal to the Immigration & Protection Tribunal, firstly if you believe that INZ has wrongly decided that you have breached Residence conditions.  In addition, you may be able to show “special circumstances” to justify an exception to the Residence Instructions.

Furthermore, the PA will not be able to seek a PRV as PRVs are not granted to a person whose Residence Visa is subject to s 49(1) conditions. The same applies to SAs.

If you require assistance in getting s 49(1) conditions removed from your Residence Visa, come and talk to one of our lawyers today for assistance.

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