The Fine Detail of the 2021 Resident Visa

The “one time” Resident Visa announced in September 2021 is underway. The first batch of applications opened on 1 December. mostly aimed at people who have a Skilled Migrant Residence case in the queue. About 15% of those applications have been decided so far. Phase 2 opens for everyone else on 1 March 2022, and people can apply up to 31 July 2022. It is expected that about 10 times as many migrants could qualify, so Immigration New Zealand has its work cut out processing all those online applications.

If you or someone you know is thinking of applying, here are some things for the “principal applicant” to look out for.

Dependents

If your partner or children (“dependents”) cannot join the application right away, the general rule is that they do not need to be included at the start. This may be because they haven’t got their passport or Birth Certificate ready, or your personal plans mean that they won’t come to New Zealand for some time (finishing high school, for example). They must still be declared on the online form – this is important, because non-declaration could put your own application, plus their later application, at risk. You could add them in later once you are ready.

BUT, they must be included if they hold a visa, or have already applied for a visa, based on their relationship to you. This means, for example, a spouse who has a Partner Work Visa. In those cases you can’t apply until everyone has the right paperwork. With international conditions as they are in various countries, this is a real challenge and one that it is risky to try to get around. For example, Birth Certificates are a non-negotiable requirement. Simply uploading a letter explaining that it will take a few more months to get the Certificate could, at worst, result in the application being declined. It is better and safer to wait until you have the actual Certificate itself, and apply later and with less risk.

This class of dependents also cannot be removed from the application before it is decided. This is also a big issue if, say, a child has a serious illness or disability which means that they may not be granted Residence, or a partner has a past criminal conviction. And if they are declined Residence for that reason, then the whole family’s application will be declined.

All may not be lost, because most (but not all) applicants can request a Medical Waiver or Character Waiver. If Residence is declined, then there is usually a right of appeal. Follow the links in this paragraph to hear more from us about these topics.

Character Waivers

You may have got a conviction for drink-driving while you were on an earlier Work Visa, or Immigration accused you of supplying false information to them. When you applied for the next Work Visa, the visa officer went through the Character Waiver process and granted you the visa.

Don’t assume that this will get you through the Residence application. Immigration has made it clear in its comms that they do a fresh character assessment each time. The legal tests for Character Waivers for temporary visas and for Residence are somewhat different. Residence policy introduces some new triggers for character concerns – for example, making public statements that discriminate on race or ethnicity. Be prepared to give a full response when Immigration raises this during your Residence application.

Scarce Occupations

One way to qualify for the 2021 Residence Visa is if you work in a job that is on the Scarce List. Immigration claims that it won’t go into fine detail about whether your job is a “substantial match” to one of those occupations, as it does for Skilled Migrant applications. If your Work Visa has been granted for you to work in the same job, as the one you rely on for the Residence application, then this should be a fairly simple exercise.

It does not pay to be complacent, though. Although the 2021 Resident Visa is meant to be a quick fix to grant visas to a lot of people in a short time, there is still the risk that a case officer starts going down the rabbit hole of fine detail about your job, if your duties don’t fit neatly into the Scarce occupation you have claimed.

If you can qualify under either the Settled or Skilled criteria, then use those instead. See our blog which explains this a bit more.

Residence from Work

A number of people face a dilemma if they have applied for Residence From Work based on their job with an Accredited Employer, if they are paid over $90K and they applied for the 5-year Work to Residence Visa (“WTR”) before 7 October 2019. This entitles them to a Permanent Resident Visa (“PRV”) with no travel conditions. These applications have been taking a long time to process, although they are part of the top tier in Immigration’s own “order of processing” Instructions.

If they apply for the 2021 Resident Visa, they could well get a quicker decision because most staff and resources are being directed to this category. The downside is that they only get a Resident Visa (“RV”) with 2 years of travel conditions which must be renewed, or else they later apply for the PRV separately. Getting the PRV might be valuable to some people who plan to spend a few years working in another country, but want the right to return to New Zealand any time they like. In such cases, an RV would eventually expire and they would lose Residence, so that holding on for the PRV is what they should do.

Then there are those who have had the 2021 Resident Visa approved already. They can’t revive the Residence From Work application in order to get a better outcome. This is because they only qualify for Residence from Work if they still hold a WTR. When the 2021 Resident Visa was granted, it replaced their WTR and removed their eligibility.

As you can see, things can get complicated. If you are unsure of your rights and opportunities, make an online booking to talk to us about it.

About Simon Laurent, Lawyer

Principal of LaurentLaw Barristers & Solicitors. NZ immigration law specialist.
This entry was posted in 2021 Resident Visa, Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas, residence. Bookmark the permalink.

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