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.

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