Win a no win situation by thinking outside the box

As immigration practitioners, we are usually faced with difficult cases that seem to be a no-win situation. Such situations reminded me of one of my favourite quotes from the popular TV show “Suits”, where Harvey Spector said “Win a no-win situation by rewriting the rules”.

I recently received a thank you letter from the Immigration & Protection Tribunal (IPT) acknowledging my representation in a residence appeal case. It made me think again as to what made this case special and how we managed to win the Appeal. The simple answer, to win a no-win situation, is we needed to think big and get creative.

Background

We were approached by a NZ citizen, a mother of two young children. Her husband is an Afghani citizen living in Pakistan. She only lived with him for approximately two months and has not seen her husband for three years since their marriage.

With the Covid-19 Pandemic and the border closures, it made it almost impossible for them to re-unite and live together as a family. Under the current border restrictions, for our client to travel to New Zealand he must hold a Partnership Work Visa or a Resident Visa. Given the couple have lived together for less than 12 months and the lengthy period of separation, Immigration NZ (INZ) will not approve the Partnership Work Visa application or a Resident Visa under the Family Partnership Category.

At this point, my initial opinion was there is no way for them to re-unite, unless the New Zealand citizen wife relocated with the children to either Pakistan or Afghanistan to live with her husband and get a chance in securing a Partnership Work Visa. However, this was not a feasible option for the NZ citizen wife and their children for various reasons, such as the Covid-19 pandemic outbreak in the region, and safety and security risks. These reasons could also apply to many people, therefore, we had to pause and think outside the box. How can we make this family’s circumstances special and advocate on their behalf to unite together in New Zealand?

Our strategy was to make an “Out of Policy” residence application. We submitted a Residence application to INZ knowing it will be declined as they do not meet the 12 months of living together requirement to be granted a Resident Visa. Once the Residence application is declined, we will appeal to the IPT that our client has special circumstances that warrants the grant of Residence as an exception to the residence instructions.

As predicted, the Residence application was lodged and declined on the grounds I mentioned above.

The Residence Appeal

We lodged the Residence appeal on the grounds that the decision to decline the residence application was correct but our client has special circumstances that warrants consideration by the Minister of Immigration to grant Residence as an exception to instructions.

Winning a Residence appeal on special circumstances is difficult. In the High Court decision of Rajan V Minister of Immigration [2004] NZAR615 (CA), Justice Glazebrook defined special circumstances as “circumstances that are uncommon, not commonplace, out of the ordinary, abnormal”. So we needed to make our client’s case stand out, which was not a walk in the park.

The first step was to demonstrate that our client has no option to re-unite with his family other than being granted Residence as an exception to instructions. The Covid-19 Pandemic outbreak is worldwide and the security issues in Pakistan and Afghanistan are shared by many people. Therefore, we had to dig deep into our client’s situation to identify the relevant factors that made his case special and uncommon, which would assist the IPT with its decision.

We argued that our client’s special circumstances arose primarily out of his relationship with his New Zealand citizen wife, the best interests of his two New Zealand-citizen children, and the significant difficulties that the wife and children will face if required to live in Afghanistan or Pakistan.

Here are some of the points we argued that:

  • Our client is in a genuine and stable partnership with his New Zealand-citizen wife and they have two New Zealand-citizen children.
  • The living circumstances for Afghanis living in Pakistan are not safe and will have a negative impact on the wife and children.
  • The COVID-19 outbreak in Afghanistan and Pakistan is serious.
  • There were genuine and realistic reasons, with evidence, why the New Zealand wife cannot relocate to Afghanistan or Pakistan. Simply stating that there are security issues in the region or the Covid-19 pandemic outbreak is out of control will not convince the IPT to decide in our client’s favour. We needed to go beyond the basic information. For example, in our case, the NZ Citizen wife’s experience from her last visit to Afghanistan and Pakistan was traumatic. She and her children encountered health issues due to being in a different environment with lack of health services. We provided medical reports that confirmed that she suffered from stress-related disorders and depression which would get worse if she returned to any of those two countries.
  • Outlined the difficult position of Afghanis living in Pakistan particularly in the Covid-19 environment. This was backed up by recent reports from Amnesty International, European, Human Rights Watch World Report 2021 and various other genuine sources.
  • We outlined to the IPT with supporting documents that the best interests of the NZ Citizen children would be met by being raised by both parents in New Zealand.

The Appeal outcome

A copy of the decision can be found on the IPT website. The Tribunal found that our client had special circumstances that warranted the grant of residence as an exception to instructions.

The IPT was satisfied that our client and his New Zealand citizen wife are in a genuine and stable partnership, despite their lengthy separation. The best interests of their two New Zealand-citizen children are best served by them being reunited with their father in New Zealand. The wife and the children have a strong family nexus and support in New Zealand. By contrast, our client and his family have no realistic option to live together in a safe and secure environment outside New Zealand. They face significant difficulties in living together in Pakistan and Afghanistan, due to the security issues and health risks there, complicated by the current pandemic.

Final outcome

The Associate Minister of Immigration agreed with the IPT’s recommendation and granted Residence to our client. He will now be able to join his wife and children in New Zealand where they can live in a safe environment.

To get to this stage, it required extensive research outside the Immigration policy. We had to rely on international sources, evidence and documents to back up our client’s claims. We had to ask the client the right questions and give them clear instructions/guidance on what documents they can provide to back up their claims.

If you or someone you know is facing a similar situation where they don’t believe there is hope, let them contact us. We can help identify their options and provide them with the right guidance to achieve their goals.

Posted in Immigration Visas | Leave a comment

Can Immigration Search Your Phone?

This is an issue of data privacy and fishing expeditions by officials. The message is “be careful, and know your rights”.

Our firm has been doing Partner visa applications for a long time. The couple needs to show that they have a genuine relationship. In the last few years in particular, people have pointed to electronic communications as proof. This ranges from Facebook relationship status, to text messages and video calls, and hundreds of pages of emails.

On the Spot in an Interview

Visa officers often call for face-to-face interviews with both the applicant and their supporting partner. They ask to see people’s mobile phones, because the applicant has said that they keep in touch by text a good deal, and the officer wants to verify that.

But they may not stop there. Once they have the ‘phone in their hands they can open other apps and take a look around to see if there’s anything which might be suspicious. Some of them do this, according to accounts from our clients and professional advisers, as well as evidence on files we have seen which points to Immigration officers seeing material totally unrelated to what they were originally meant to be looking at.

Why is this Wrong?

They can’t do this. As pointed out by my colleague Peter Moses in a recent article for NZAMI, the collection of personal information in this manner may amount to a breach of the Privacy Act 2020 and in particular:

  • The requirement to obtain the informed consent of the subject before accessing their information (Principle 3), and give reasons why it is being collected; and
  • The data collection must be done lawfully (Principle 4).

For instance, if the visa officer says that they want to see the ‘phone in order to verify that a couple text each other regularly, but they also go on to poke around in case there is something on board that suggests the person is involved in fraud, then that is an improper use of the access that they have been given.

It is a bit like the Police knocking on your door to ask to search for a dangerous individual in your back yard; and while they are there they turn the place over to see if you are storing drugs. Even they have to get a warrant to carry out such a search. The mere fact that someone hands over their ‘phone for inspection does not give an official a free pass to peer through anything they like.

There is another reason why this sort of thing is a bad show. Legally, the applicant has the responsibility to make their case for a visa to be approved. Immigration is not required to go beyond what they are given in order to make a decision. If, for example, someone refused to let an officer see more than they are prepared to let them see, then there is no legitimate way in which they can be forced to give access to all their personal affairs on the pretext that “I need all this information to do my job”. That doesn’t prevent some overbearing behaviour, including threats that a failure to cooperate will lead to an unhappy ending.

When approached for comment by NZAMI, Immigration New Zealand said the following:

Immigration officers who undertake face-to-face interviews have been
trained to respect the applicant’s privacy, as well as adhere to New
Zealand’s Privacy Act 2020 and the administrative law requirements
of fairness and natural justice. That is why full and informed consent
must be granted by the applicant before the immigration officer views
content on the mobile phone. Immigration officers should only look at
content on the phone that they have received permission for, and this
should be done in full view of the applicant. If an immigration officer
wants to view any other content, they must seek permission first.

(quoted in NZAMI E-news, 25 June 2021)

Moral of the Story

One answer is to refuse to hand over your ‘phone at all. We don’t recommend that as a starting position, because there may be very helpful evidence on board which would improve your chances of success. Furthermore, it could be seen as meaning that you had something to hide – when you don’t. While the refusal to provide information on request, on its own, should not be used against someone, immigration staff are only human and may not be able to help forming a negative opinion that colours their final decision.

Instead, the right approach is to ask the visa officer to explain exactly what sort of material they want to look at. Then, make sure that you can see what they are doing.

If they stray, you have the right to require them to hand the ‘phone back. If they refuse, then stop the interview. You would then have grounds to make a complaint of improper conduct, notify breaches of the Privacy Act to the Commissioner, or even an approach to the Police if you don’t get the item back promptly (although it is pretty unlikely that an official would hang on to the ‘phone if you threatened to escalate the matter).

It should be clear that this topic is important for matters other than immigration cases..

A visa decline resulting from this sort of fishing expedition may be challenged, because it relies upon information improperly obtained. Sometimes there is a “smoking gun” in the file materials which gives the clue to exactly what an officer was looking at, although it can also be difficult to piece that together.

Contact us, if you are aware of a situation where Immigration might have got hold of more information than they were entitled to see.

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Here It Comes – the New Work Visa Regime

Way back in February 2019 we alerted people to Immigration’s plans to overhaul employer-assisted Work Visa policy. The essential features of the scheme were laid out by Sahar Shamia in a more recent blog in February this year. On 7 May 2021 Immigration New Zealand finally unveiled how the scheme will roll out.

As you can see, this has been a long time coming. The COVID-19 response put the brakes on a number of items in INZ’s change agenda. From the outset, though, it was clear that they were going to make it happen. So here’s how it goes . . .

The Timetable

Almost all current Work Visa streams based on a specific offer of employment are being shut down. However, most of them will still run as normal until 31 October 2021. The critical date is 1 November, when the new “3-gate” system opens for visa applications.

The first step along the way is the closure of certain categories on 30 June:

  • Accredited Employer (the existing scheme)
  • visas for labour hire companies
  • Approval in Principal to recruit Essential Skills Workers

From late September 2021, employers who want to hire migrant workers will be able to register for the new types of accreditation that are available. This will be an online system which INZ claims will be “largely automated”. Hopefully, this means that it will not take too much work either for employers or INZ staff to get through the inevitable flood of applications for accreditation.

A couple of visa classes are not affected by all of this, such as Religious Worker Visas. This is just as well for faith-based organisations, who would otherwise face a real struggle meeting the requirements of the new accreditation. Although the previous Minister of Immigration suggested a couple of years ago that it would be “Accreditation Lite”, we have yet to see the detail of what it involves, so that it is not wise to assume that this is going to be a walk in the park for those who need to get on board.

What Are the 3 Gates Again?

The existing visa process, in most cases, is very much “migrant driven” – that is, someone who wants a Work Visa is The Applicant all the way through. Their name is on the forms, and success or failure at every step of the assessment process belongs to them. The employer wanting to hire them merely supports the application along the way.

The new system shifts the focus – and, arguably, much of the burden – to NZ employers. It goes like this:

A. Employer Gate – Immigration decides whether employers are suitable to employ migrant workers. There are 3 main accreditation levels:

  • Standard — for employers who want to hire 5 or fewer migrant workers;
  • High-Volume — for employers who want to hire 6 or more migrant workers; and
  • Franchise/Labour Hire – for businesses which supply staff to third-party places of employment.

The criteria for accreditation by High Volume employers is more stringent than for Standard. Franchise/Labour Hire criteria may be even tougher again. It may become critical to decide whether you want to hire more than 5 people in a year. No-one has yet explained to me how some companies would reliably predict how many people they need 12 or more months in advance.

B. Job Gate – The job on offer is reviewed to see if it pays the market rate; the terms and conditions comply with employment laws; and the employer has done a labour market test if they need to do so. Note that a particular visa applicant does not feature here – this is all still squarely with employers.

C. Migrant Worker Gate – Finally, the migrant enters the picture. They apply for the Work Visa for the job cleared through the Job Gate, and offered by an Accredited Employer. They must be of good health and character, and have the skills to do the job..

It may be fairer to lay most of this process on employer companies, rather than individual migrants. It does suggest that employers will increasingly need professional assistance, both to apply for accreditation and to ensure that they have advertised their jobs properly. It also seems likely that, while an employer may have a qualified adviser working for them, migrants should have a separate agent who is looking out for their interests.

I’m an Employer – What Should I Do?

If the detailed policy for this scheme has been written, we haven’t seen it yet. There’s not much we can say about what employers will need to prepare right now. There are a few things to which you should start giving attention now, though:

  • Can you anticipate how many non-NZ people you might need to hire in the next year after November 2021?
  • Are your employment agreements up-to-date with the Holidays Act, parental leave, rest- and meal-break provisions, etc.?
  • If you already employ people on Work Visas, are the visas still valid and do they allow the person to work for you?
  • Have you documented how you are training and upskilling your existing staff to show that you are being a good employer, and giving opportunities to NZ employees to improve their skill-set? If not, put something in place now, and consider hiring an HR specialist firm to help you with that.

Those who have already been thinking about accreditation under the old system should hold off until the new programme opens for employers to enroll in September 2021 . Even though you can still apply for old-style accreditation, you can only use it to bring on new staff until the end of October. After that, any new hires must be under the new 3-gate system.

Will the Scheme Deliver?

The first challenge faced by Immigration NZ will be how it will handle the wave of new accreditation applications in September. It has been estimated in various places, including MBIE management, that there will be 25,000 employers wanting an accreditation ticket when the time comes. Even if we assume that a new online portal works flawlessly – and how many of them do that? – it is hard to believe that we aren’t going to end up with yet another backlog clogged with undecided applications for many months, if not longer.

The public-facing fact sheet published by INZ says:

Timeframes for providing further information are dependent on policy decisions and disruption caused by the COVID-19 pandemic.

I would read that disclaimer much more widely. The schedule that INZ has already put out may suffer project creep very early on. For example, there is no word on whether the online accreditation platform has even been written yet, much less tested.

According to official statements recently and in the past few years, the new scheme is meant to deliver higher-quality migrants to the job market, and to reduce migrant exploitation. As to the first point, concern is now being voiced that we may already be missing the boat on attracting high-skilled workers. The progress on vaccination programmes in other developed countries is upsetting our comfortable assumption that, just because we beat COVID-19 here last year, New Zealand remains the most attractive place on earth to live.

And worker exploitation? My opinion is that imposing accreditation will discourage some employers from hiring migrants via job-specific visas. Instead, they will switch their attention, even more than they do now, to University graduates who get 3-year Post-Study open Work Visas. This group can work for whomever they like without needing prior employer sponsorship. INZ and the Labour Inspectorate have no easy way of tracking who is working for whom, and under what conditions. Add to this the fact that Australian research has established that exploitation is more likely when migrants must rely on a single employer for their tenure in the host country. In that respect accreditation probably doesn’t make things worse, but it won’t deliver much worker protection.

Posted in Immigration Visas | 2 Comments

Finding a solution is what we do!

We recently secured a work visa for a client who thought her future in New Zealand was coming to an end. Our client arrived in New Zealand on a Talent (Accredited Employer) Work to Residence Visa, which provides a pathway to residence after 24 months. Unfortunately, she was made redundant from her employment due to the impact Covid-19 has had on the economy. Subsequently, she lost her pathway to residency. The client informed Immigration New Zealand (INZ) of her changes of circumstances. This was the right thing to do to ensure she was not in breach of her work visa conditions. INZ granted her a Visitor Visa to sort out her affairs and depart New Zealand.

The Obstacles

At that stage, the client felt hopeless as she believed she had to secure an offer of employment with an accredited employer within one month. If not, she had to pack her bags and return home. Her age also limited her eligibility to apply under the Skilled Migrant Category.

We were faced with three obstacles:

  1. Loss of employment – without an offer of skilled employment, she cannot apply for a visa under the Talent (Accredited Employer) Work Visa instructions or the Essential Skills Work Visa instructions;
  2. The age – if she secured a job with an accredited employer, reaching 56 years of age, limited her ability to apply for a Talent (Accredited Employer) Work Visa;
  3. Time limit – she had one month left on her visitor visa and before she turns 56 years of age.

The Strategy

The first step to solve any issue is identifying what the client wants, what actions have they taken (if any). Then, lay out all the possible options to find a solution – for instance, our client’s goal was to secure employment in New Zealand and apply for residence. She was focused on finding a job with an accredited employer before turning 56 years, understanding that this was her only option, but that was not necessarily the case.

We established that even though she had one month left before her visa expired, she had been actively looking for a job. She had several interviews with different employers in New Zealand but with no job offers yet. We suggested to first apply for a short term Visitor Visa and explain her situation to INZ. Sometimes, being upfront with INZ on why you want to extend your stay in New Zealand (i.e. secure a job) will not negatively impact your situation. In her case, she had recently lost a job and had been actively looking for another job. Therefore, requesting a Visitor Visa for a few more months was a reasonable thing to do.

Once she has a job offer, the right pathway is to apply for a Work Visa under the Essential Skills category. This type of visa does not give her a pathway to Residence in New Zealand. However, it is a step to continue working in New Zealand and allow her sufficient time to establish a pathway to residence.

Essential Skills Work Visa

As per our advice, our client got a Visitor Visa to allow her time to find a job offer. Which she successfully achieved. The employer needed her to start the job immediately. Therefore, we assisted her with an Essential Skills Work Visa application, which was not a walk in the park. We had to work carefully with the documents and evidence supporting her application to ensure we provided a complete and accurate application to INZ.

For instance, we received evidence of advertising. However, the number of applicants who applied for the job were not apparent on the advertising/recruitment documents. We had to correspond with the employer and the recruiter to provide more documents on how the recruitment took place and why they found our client to be the most suitable candidate. Sometimes taking this extra step makes a huge difference. For example:

  • We requested copies of the appointments and interview notes with candidates who were shortlisted;
  • We provided letters from the employer and the recruitment agency setting out a detailed description of the recruitment process. It also helps if the employer and /or the recruitment agency can explain how the successful candidate’s specific skills/work experience meets the requirement of the job advertised;
  • We provided a comparative analysis of our client’s skills and experience with the other candidates who were shortlisted. Such analysis makes it easier for INZ to understand why the employer chose our client and why she was more suitable than the others.
  • Additional documents such as how the employer verified the successful candidates’ work experience with evidence to back it up, such as reference check notes, adds credibility to the employer’s case.

By providing a complete, thorough application to INZ, her Essential Skills Work Visa application was approved within one week. Our client is now ready to prepare for the next step for her Residence in New Zealand.

Pathway to Residence

We identified that our client was qualified and had the skills we need in New Zealand. In order to apply for a Resident Visa under the Skilled Migrant Category, she needed to score 160 points to submit an Expression of Interest (EOI). With her current skilled employment, she will meet the 160 points threshold, with the only barrier to submitting an EOI being her age. We suggested that she can consider putting forward a ministerial request for an Age Waiver. However, ministerial requests are discretionary, it does not necessarily mean it will be successful, but it is an option to pursue.

Finding a solution and drawing a strategy is what we do. If you find yourself in a similar situation, contact us to help plan your journey.

Posted in Citizenship, Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas | Leave a comment

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.

Posted in Immigration Visas | Leave a comment

Help Your Lawyer to Help You

Believe it or not, there are some good reasons why you should make your lawyer’s life easier. If it saves them time, it could save you money. And even if it doesn’t, doing your part to remove obstacles to them doing their job has got to make sense.

See this article in Rocket Lawyer for some general advice about how to get the best out of your legal representative. It highlights the need to:

  1. tell them what your problem actually is (sounds obvious, but it is sometimes difficult to explain it);
  2. ask them to explain when you don’t understand what they are telling you;
  3. tell them the truth. A saying among us lawyers is that we are often the last to hear the truth. My experience is that, when I do finally find out what’s going on, I have to say, “If you had told us at the beginning we could have fixed it . . . Now it may be too late.”

Giving Us Documents

What I will focus on is how you send information to your lawyer. In our immigration practice, a big part of our work is preparing sets of supporting evidence for things like visa applications and appeals. Even just a few years ago, most of that involved collecting and sorting pieces of paper. But technology has swept us into the age of “everything online”. For instance, most New Zealand visa applications can now be filed electronically.

This means that we deal in folders full of documents every day – usually, in the form of .pdfs. This material needs to be sorted into some kind of meaningful order, because ultimately we use this evidence to tell your story in the way that is most beneficial to you. This exercise can make up a major part of the time we spend working on someone’s case.

“Well, that makes sense, that’s a lawyer’s job”. Quite true. But we are also reliant upon dealing with what our clients give us, and how they do it. This ought to be a collaborative exercise because we both want the same outcome. Some people work with us very well, and others don’t. This may be because dealing with lots of documents is not what they do very often. Or it may be because they figure that it’s the lawyer’s job to sort out that pile of raw material. Either way, it leads to outcomes that are not in their best interests.

Firstly, if you are paying your lawyer by the hour, do you want to be charged for billable time spent doing what you might have been able to do yourself? Definitely not. Why pay a lawyer more than you have to? Some people might ask, “Why pay a lawyer at all?” but we won’t go there right now.

Secondly, in a disordered pile of material, perhaps hundreds of pages, things get overlooked. Important things, things that can mean the difference between success and failure, a gain or a loss. While it is the lawyer’s job to identify that smoking gun, or that trump card (excuse the expression), anything that can smooth the way for him or her to locate it has to be valuable.

What Can You Do to Help?

Here, I will use the common scenario of a bunch of .pdfs. We usually get these as a series of email attachments, on a USB stick, or via a file sharing service like DropBox.

  1. Use a folder structure where you can group documents of a similar type together. Hopefully, from talking with your lawyer, you have some idea of the key themes of the job they are working on. Try to follow that. We usually find that, even if someone has made an imperfect attempt to organise things in this way, it makes a world of difference;
  2. Name the documents so that someone else knows what they are. Sending a set of files with the titles “scan 001”, “scan 002” etc. is not helpful. Again, there’s that risk of missing the key letter or report among all the other anonymous documents;
  3. Emails – DON’T send 20 emails with 1 attachment each. Not only does this clog up someone’s Inbox, it also adds to the time needed to extract each one and work out where it fits in the scheme of the assignment;
  4. Give us a roadmap of what you are sending. If it is being emailed, include a numbered list of what is attached. If it is on a USB or on DropBox, we have found it really useful when clients have included a simple Table of Contents document which uses the same names as the documents or folders which it refers to;
  5. A large number of small documents of the same type can be combined into a single, larger .pdf. The classic example is bank statements or invoices. Even if you don’t subscribe to paid software that can do this, there are some cheap or free apps out there – just Google for them. At the same time, make sure that the documents are arranged in a sensible order. Date order is often what we like to work with best, although the situation may suggest a more useful arrangement to you;
  6. People often send us a pile of letters or forms taken as a photo with the camera on their smartphone. This will be because they don’t believe that they have access to anything better, and sometimes that may be true. In other cases, though, it would help us if they tried a bit harder. One reason for this is that the images are usually not very good. The lighting is poor, or the words on a page are not clear, or part of the page is cut off entirely. If you don’t have a scanner, consider using an internet cafe or other service to get it done.

If you don’t know how your lawyer wants to receive the material you will send – Ask. Then, if they can’t be bothered to tell you how to make their lives easier, think about moving on if you can. A cooperative client is a great client, and should not be brushed off.

What About Fixed Fees?

Unlike some law firms, Laurent Law quotes and charges a fixed fee for a lot of the instructions we receive. There are good reasons for us to do this, as we explain on our website. The reader could then be forgiven for thinking that saving a lawyer some time doesn’t matter, because it won’t change what they pay, or how the job turns out.

This is not true. While we do set fees for types of work that we see regularly, these figures are partly based on the amount of time we expect to spend on doing that work. If most of that time is taken up in sorting out someone else’s mess, we will inevitably be pushed to give less time to the “lawyer stuff”, where we can really add value. Law is a business like any other. Its stock, its inventory, is made up of the intellectual capital of its legal professionals, and the number of useful hours in a day. That time is a scarce resource, and the time allocated to your case is never going to be infinite.

If you are not sure what we want, or how we want it, then ask us to tell you. Then give it to us like that, as best you can. I believe that there is a direct correlation between the level of cooperation in this area, and the positive outcomes in the work we do. And that, of course, is why you came to a lawyer in the first place, isn’t it?

Posted in Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas | Leave a comment

Success Story – SMC Group Appeals – Insurance Agent Staff Win Residence Appeals

Around this time last year, New Zealand entered into lockdown, and we all faced a challenging year due to the global pandemic of Covid-19. However, today we share a success story that has given hope to nine clients who thought their future in New Zealand was almost over. 

We have recently secured the approval of nine almost identical Skilled Migrant Category Residence (SMC) Appeals for staff at a major insurance company. All nine of our clients had their declined SMC residence applications turned around by the Immigration & Protection Tribunal (IPT) with a strict set of guidelines – for a correct reassessment.

Background

In August 2020, we have been approached by a group of employees who work for a major insurance company in New Zealand. Almost all of them work in the same large call centre, which has multiple New Zealand offices. Their SMC applications required them to get points for “skilled employment” as an Insurance Agent (code 611211 in the ANZSCO). Some of the applications were submitted two years ago. Interestingly, the immigration officers for three of those applications had recommended an approval of the SMC application in their initial assessment.

Then something changed. From mid-late 2019, Immigration NZ (INZ) decided to conduct further verifications of their employment, including phone interviews and a site visit in November 2019. From July 2020 onwards, INZ began sending decline letters to all those employees. They were long letters, and they were all the same – so much the same that we were able to file a single Appeal submission for all nine people.

INZ declined the residence applications because it was not satisfied that their employment substantially matched the ANZSCO description, including core tasks, of an Insurance Agent. It also was not satisfied that they qualified for points for skilled work experience. Without points for skilled employment or skilled work experience, their applications did not have enough points to be approved under the Skilled Migrant category.

The Slam Dunk Approach

The staff worked in a call centre environment, taking inbound enquiries, proposing insurance products, calculating premiums using the company’s bespoke system, and so on.  INZ accepted that the staff of this company carried out 5 of the 9 Core Tasks listed under the relevant ANZSCO Unit Group 6112. However, INZ concluded that they did not perform the other Tasks and, importantly, that the job was not sufficiently skilled to equate to “skilled employment” for the award of points.

We provided various arguments which criticised INZ’s approach to these cases. The IPT accepted almost all of the arguments we presented.  The IPT identified many defects in the decisions, including:

  • reliance upon a generic site visit (which INZ claimed not to rely upon) which did not address the specific work of the appellants concerned, and which influenced the outcome;
  • a failure to consider the job in the context of the working environment, and assumptions made about the job which coloured its conclusions about whether the employees performed certain Tasks.

There were two significant errors in INZ’s decision that the IPT knocked down, which we want to highlight here.

1.Use of Knowledge Management (“KM”) Systems

Core Task 4 of Unit Group 6112 states that Insurance Agents are involved in “calculating premiums and establishing a method of payment”. The insurance staff in this case used the employer’s IT applications to input data to generate the necessary premium calculations. In INZ’s view, having a pre-set calculation system limits the skill level required for calculating premium.  INZ concluded that they did not perform this task because it was done for them by the use of technology.  

The IPT pointed out that INZ’s own site visit report and other evidence on file showed that, in fact, employees needed to have, and to apply, knowledge of numerous products and processes to carry out this aspect of the work. The mere fact of using a computer system to help with that did not invalidate their performance of this task. It cited an earlier decision of JC (Skilled Migrant in which the IPT made two key points:

  • It is unrealistic to suggest that any employee will not be constrained to a greater or lesser extent by their employer’s technology choices. To hold otherwise would be to ignore the reality of most employment in a corporate environment; and
  • Company-specific KM systems are often inextricably intertwined with companies’ everyday operations and their employees’ roles. While in-house company systems might provide some assistance, such a situation should not necessarily mean that an applicant’s ability to perform the relevant core tasks is constrained because an applicant has to use their own expertise to use such systems.

2. Importing Skill Level into Substantial Match Assessment

A repeated refrain in INZ’s decisions for those employees was that their work did not “demonstrate any specialist, technical or management expertise or the level of skills or expertise required of an Insurance Agent.”  This view was supported by the fact that the entry requirements of the job did not specify prior insurance-related qualifications or work experience.  Such a view influenced the erroneous finding that the employees did not perform Core Task 4 of calculating premiums mentioned above.

INZ concluded that each of the Core Tasks associated with Insurance Agent did not require a level of skill equivalent to a diploma or three years’ prior experience. However, in order to work out if someone had “skilled employment”, two separate questions apply:

  1. Is their job a “substantial match” to the ANZSCO description for the listed occupation, including Core Tasks? – then
  2. Does the employee have the qualifications or experience expected for that occupation code?

INZ had applied the second ‘quals/experience’ criterion to the first “substantial match” assessment.  The IPT rejected INZ’s assessment of this by referring to the Residence Instructions which stipulate what qualifies for skilled employment, including the substantial match between the job and the corresponding ANZSCO description. The SMC Instructions also require that the applicant is “suitably qualified by training and/or experience for that occupation”, – meaning that they meet the indicative skill level for the ANZSCO occupation, such as having a degree or diploma.

The IPT confirmed in its decision that none of the requirements in the residence instructions state that an applicant must be undertaking work of a certain difficulty or with a minimum skill level. Also, the Residence Instructions do not specify that an applicant must be solely responsible for undertaking a task without limitations or have a certain level of seniority or responsibility to be considered to be undertaking the tasks. In the words of the IPT:

Immigration New Zealand imported a skill level requirement into its substantial match inquiry that it was not entitled to do. 

Previous SMC Group Appeal Decisions

This SMC Group Appeal cases shared striking similarities with another group of employees of another industry our firm worked for three years ago. We expected that, by having a significant group of visa decisions overturned by the IPT, it would have prompted INZ to guide their staff on how to assess future applications, which raised the same points of contention.   However, this was not the case. INZ sent a templated form of decisions letters which showed that some thought and planning had gone into seeking to defeat the insurance employees as a group in what was ultimately a doomed exercise. 

The role of the IPT is to guide decisionmakers at first instance, and that INZ should follow such guidance. In this instance, the failure to do so has led to a wasted effort by the applicants, INZ staff and members of the IPT.

What now?

The IPT determined that INZ’s assessment of whether the applicants performed an insurance agent’s occupation was flawed for multiple reasons and referred the applications back to INZ for reassessment. The IPT ordered INZ to reassess every one of our cases. At the time of writing, we have not had feedback from INZ about the Residence reassessments. This story may not be over, and INZ might try to find other ways to defeat the applications.

However, we have learned something about this industry’s dynamics. You may know someone in the same situation who needs help; let them contact us. 

Posted in Immigration Visas | 2 Comments

Common situations involving deportation liability

Liability for deportation under the Immigration Act 2009 can arise in a number of situations. If a person becomes liable for deportation, they can be served a deportation liability notice and then a deportation order. After a deportation order has been served on a person, deportation can be executed by;

  • taking the person into custody; and
  • escorting the person or arranging the person to be escorted to an airport or port; and
  • ensuring that the person is placed on board a craft and detained there until the person leaves New Zealand (see s 178 Immigration Act 2009)

Executing deportation may involve a person being arrested by the Police. It is not a pleasant experience.

If deported, a person is likely to face a period of prohibition on returning to New Zealand (see s 179 Immigration Act 2009). Being deported may also negatively affect a person’s ability to apply for visas to countries such as Australia, United Kingdom, United States and Canada. For example in New Zealand, a person deported at any time from any country is subject to s 15 exclusion, preventing them from being granted any visa at all unless granted a Special Direction by a senior immigration official or the Minister of Immigration. Being deported is therefore not something to be taken lightly.

Common situations where deportation liability arises

The most common situation we see at Laurent Law where a person becomes liable for deportation is where a person is in New Zealand unlawfully ie. they do not have a visa, they are an “overstayer” (see s 154 Immigration Act 2009). This situation usually arises when a person is in New Zealand on a Temporary Visa but the Temporary Visa expires. Provided the person has not yet been served a deportation order, they can file a request for a visa under s 61 Immigration Act 2009 in order to “regularise” their status ie. become lawfully in New Zealand again.

Laurent Law is frequently instructed by clients to assist with s 61 requests. These are not applications, they are requests and Immigration New Zealand s 61 officers have “absolute discretion” as to whether they will grant a Visa. Immigration officers do not have to give any reasons for their decision regarding a request under s 61. Laurent Law has enjoyed our fair share of successes and failures when it comes to s 61 requests, but over time we have developed a high level of experience with how s 61 requests can best be presented in order to maximise the chance of success. Please contact us if you require assistance with a s 61 request.

Can I be deported if I hold a Residence Visa?

The answer is yes, but you may be able to do something to prevent it from happening. The most common situation where a Residence Visa holder becomes liable for deportation is where the person receives a criminal conviction. We discuss this below.

What criminal convictions can make me liable for deportation if I hold a Residence Visa?

S 161 Immigration Act 2009 states that a residence class is liable for deportation if he or she is convicted, in New Zealand or elsewhere, –

(a) of an offence for which the court has the power to impose imprisonment for a term of 3 months or more if the offence was committed at any time—

(i) when the person was unlawfully in New Zealand; or

(ii) when the person held a temporary entry class visa; or

(iii) not later than 2 years after the person first held a residence class visa; or

(b) of an offence for which the court has the power to impose imprisonment for a term of 2 years or more, if the offence was committed not later than 5 years after the person first held a residence class visa; or

(c) of an offence and sentenced to imprisonment for a term of 5 years or more (or for an indeterminate period capable of running for 5 years or more), if the offence was committed not later than 10 years after the person first held a residence class visa; or

The classic situation we see is where a person receives a conviction for driving while over the breath or blood-alcohol level (“drink-driving”) (an offence under s 56 Land Transport Act 1998), not later than 2 years after the person first held a Residence Visa. Because a person convicted of this offence can be sentenced to a term of imprisonment of 3 months, it falls under (a)(ii) above. The Residence Visa holder can become liable for deportation. The process is usually this:

1. INZ Resolutions Branch in Wellington will send a letter to the convicted person, stating that consideration is being given to serving them with a deportation liability notice and inviting comment on why service of the notice should not proceed. Clients often instruct Laurent Law to assist at this “inviting comment” stage. We assist people to explain their circumstances, to show that deportation from New Zealand would be a disproportionate outcome to the gravity of the criminal conviction.

2. Once comment is received, INZ Resolutions Branch will prepare the file and a briefing note for a senior immigration official – or in some cases the Minister or Associate Minister of Immigration – to review and decide whether to;

(a) issue a deportation liability notice; or

(b) issue a deportation liability notice but then cancel deportation liability; or

(c) issue a deportation liability notice but then suspend deportation for a specified period of time.

Where deportation liability is suspended, it is usually suspended for 3 or 5 years, subject to the person receiving no further criminal convictions during this period. If a person does receive a further criminal conviction, they can be served with a deportation liability notice again and the process at (1) above restarts.

Over time Laurent Law has successfully assisted with many situations involving Residence Visa holders becoming liable for deportation owing to receiving a drink driving conviction or something similar. Our experience indicates that if the “inviting comment” stage is properly handled and competent submissions are provided, there is a good chance it can result in deportation liability being cancelled or suspended. Please contact us if you receive a letter from INZ Resolution Branch inviting comment on whether you will be served a deportation liability notice.

Recent success story: more serious criminal conviction

One question arising, is what if a person is convicted of an offence which is more serious than drink-driving? Laurent Law recently assisted a Residence Visa holding client who had been convicted of aggravated robbery, an offence under s 235 Crimes Act 1961, the maximum term of imprisonment being 14 years. The outcome was for deportation liability to be suspended for 5 years. Given the seriousness of the conviction, this was probably the best possible outcome to reasonably expect.

Our client was a young man, a citizen of South Africa with family in New Zealand and Australia and no family to return to in South Africa. He had suffered some difficulties with alcohol consumption but was taking steps to remedy this through counselling. He was gainfully employed in New Zealand.

The significant concern for our client was being deported to South Africa, away from his family and support structures and where unemployment and crime rates are high. We pointed out in our detailed submissions that our client’s life prospects would be severely limited if he were forced to return to South Africa and argued that this “punishment” would be disproportionate to the gravity of the offence that he had committed.

It was very fortunate that the decision maker in our client’s case determined to suspend deportation liability. However, if our client receives another criminal conviction during the suspension period, all bets of a positive outcome would probably be off. The more repetitive a person’s actions demonstrated through their unwillingness to commit to good behaviour and the more serious the offence, the less likely the decision maker will cancel or suspend deportation liability.

If a deportation liability notice is served on a Residence Visa holder who is convicted of a criminal conviction, the person has 28 days to file an appeal to the Immigration and Protection Tribunal against liability for deportation. This involves demonstrating to the Tribunal that the person has exceptional humanitarian circumstances that make it unjust or unduly harsh for them to be deported and that it is not contrary to the public interest for the person to remain New Zealand – this is quite a difficult series of legal tests to meet.

Can I be deported if I am a New Zealand citizen?

With one exception mentioned below provided for in the Citizenship Act 1977, no. For our New Zealand citizen readers, you may be interested to know that no New Zealand citizen can become liable for deportation from New Zealand under the Immigration Act 2009 in any circumstances (s 13(3)(b) Immigration Act 2009). Therefore once you are granted citizenship, criminal offending cannot, under the law, result in you being deported from New Zealand. Any criminal convictions you obtain prior to an application made for New Zealand citizenship may however be taken into account in determining whether you will receive citizenship by grant.

There is one exception to this, see s 16 Citizenship Act 1977. This allows the Minister of Immigration to revoke a person’s New Zealand citizenship if aged 18 or over if the person has;

(a) acquired the nationality or citizenship of another country by any voluntary and formal act, and acted in a manner that is contrary to the interests of New Zealand; or

(b) voluntarily exercised any of the privileges or performed any of the duties of another nationality or citizenship possessed by him in a manner that is contrary to the interests of New Zealand.

For example, consider the example recently reported by the media of a female ISIS fighter with two young children detained in Turkey who was discovered to be a dual New Zealand and Australian citizen. The Australian Prime Minister revoked the woman’s Australian citizenship, which drew an angry response from New Zealand Prime Minister Jacinda Ardern, who accused Australia of “exporting its problems”. Jacinda Ardern cited the welfare of the two young children in determining how New Zealand would respond, which sounds like having regard to the United Nations Convention on the Rights of Child which New Zealand is signatory to, a piece of international law which often arises in the Immigration Law context.

Posted in Immigration Visas | Leave a comment

Take Your Partners – the Visa Exemption Two-Step

If you are in a committed relationship with a New Zealander, you can get an exemption to be allowed to enter on a visa.  Is it easy?  It depends.  Not all partners are created equal.

EOI and ITA

The general rule is that the border is closed to all non-New Zealanders.  Most people need an exemption to be allowed to come in for a “critical purpose”.  Employers who want to bring in “critical workers” make an online request to do so.  For the rest, there is the Request for Travel process.  Technically, it is called an Expression of Interest (“EOI”), and it plays an important part in what follows.  Each EOI costs NZ$45 to put in.

The EOI is not a visa application.  The online form gives you 3000 letters or numbers to explain why you should be allowed in.  That’s not much space to tell the story of your relationship with your NZ life partner.  People flunk the EOI, sometimes multiple times, even though their case is genuine.

If your EOI is successful, you then get an Invitation to Apply (“ITA”) for a visa, usually a 6-month Visitor Visa, and that is when you put in the visa application itself.  Once you are in NZ, you can apply for a longer-term Partnership visa in the usual way.

So there is the two-step – the EOI, then the visa application itself.  Depending on your situation, they may not necessarily go in that order.

Visa Waiver Countries

Prior to the COVID-19 emergency, people from “visa waiver countries” could come in without having to apply for a visa first.  In recognition of their preferential status, and the perception that citizens of these countries are “low risk”, they can put in an EOI for the critical purpose of joining their partner.  A whole piece of Immigration Instructions has been written just for them.

It only takes a few days to get an answer on an EOI.  Things are fairly straightforward if they get the ITA.  They put in the visa application and include documents to prove that they have been living with their other half, and have been keeping in touch with them.  If that evidence is clear enough, then they get the visa.

Tricky Cases

However, EOI’s are rejected, or the visa application itself is declined.  Apart from failing to make a good enough case that the relationship is genuine, there are other reasons why this could happen:

  • A criminal record
  • Bad past immigration history with NZ or another country
  • Health issues

The problem with the EOI is that it doesn’t allow any supporting documents to be uploaded to back up what is said in the 3000-character explanation.

In such cases we have adopted an alternative approach, which is to file a full online Partnership visa application, and then afterwards lodge a Request for Travel EOI which refers back to the application.  Firstly, this lets you put documents before Immigration to prove the relationship and address other problems you may have.  Secondly, if the EOI is unsuccessful then you can still hang in there to get the result of the main application.  This takes considerably longer – several months, usually – but is more certain than entering the EOI lottery.

In fact, it seems like Immigration may favour this approach, although they don’t advertise it.  There is even a section of the COVID-19 Restricted Temporary Entry Instructions which states that a visa application can be assessed and granted without having filed an EOI, so long as the person is coming to NZ for a critical purpose – and joining one’s partner is of course one of those purposes.

Once the visa is granted – either through the EOI-visa two-step, or by an application on its own, then the person does not need to request an exemption at all.  This is because partners of New Zealanders who are coming in on a visa based on that relationship are a specific class of people who are allowed in without the exemption.

What About the Others?

We still haven’t talked about people who are not from visa-waiver countries.  There is no special policy for them, and the public information on the Immigration New Zealand website doesn’t encourage them to request an exemption.

On the EOI route, the only categories that are open to them are:

  • Humanitarian grounds because of “exceptional circumstances”.  This is a tough legal test to meet.  Most Humanitarian EOIs are rejected; or
  • Flying in together with the NZ partner.  This still needs them to convince Immigration that they are in a genuine and stable relationship, with all the uncertainty of outcome that we have mentioned above.

Otherwise, their fall-back strategy is to file a Partner visa application in the usual way.  Again, this ultimately delivers a more certain outcome than any of the others, although it takes longer.

It has been widely publicised that the processing of visa applications for offshore people has been put on hold.  Partner visas are one of the exceptions, so that in that sense it is still business as usual.  Inevitably, though, it will take longer than usual to get a decision.  Immigration New Zealand’s advertised processing time for overseas partner visas is 8 months.  Our experience, however, is that a thoroughly prepared application, with strong evidence of the relationship, can be approved considerably faster.  This is where professional assistance can add real value for applicants.

The Rip-Off?

The online Request for Travel EOI doesn’t stop partners who are not eligible from making the request anyway.  In fact, it is possible to submit the form and pay the fee as the Partner of a New Zealander, no matter what country they are from.  It is just that all those EOIs will be declined for the simple reason that there is no Partner exemption for those people.

For example, someone from a non-visa-waiver country could successfully get invited to apply for a visa if they are travelling here with the NZ partner.  But if they are not, they can still put in the EOI and pay the fee without any hope of being successful.

In my view this is seriously misleading.  If it were not for the fact that INZ has been struggling for months to adapt to the current situation, it could be called dishonest.  It is true that the government website tries to make it clear that the border is essentially shut.  However, the interim entry policies that have been put in place, and the chops and changes that go on almost weekly, make it confusing enough for those of us in the industry, let alone for others who don’t work in this area every day.

The reality is that the online systems that have been put in place to cover the COVID-19 exceptions have been thrown together in good faith, but in a hurry.  The programming logic behind the online EOI needs to be tidied up now, in order to stop many people from making pointless Requests for Travel which will never be approved.

Posted in Immigration Problems, Immigration Visas | Tagged , , , , , , , , , | 2 Comments

Planning to hire a migrant? Now is the time to think ahead and learn more about Immigration NZ proposed changes in mid-2021

On 17 September 2019, the government announced changes to work visas to be gradually implemented from October 2019 to mid-2021. The proposed changes will apply to both migrant workers and employers supporting work visa applications.

The government first introduced the proposal in its Consultation Discussion paper released in December 2018. The government consulted on a number of changes to the employer-assisted temporary work visa. According to the government press release on 17 September 2019, there was a total of 947 submissions received from the public during consultations.   Following this, the government released one of two cabinet papers to seek final agreement on the new approach to the employer-assisted visas and the proposed changes to be published on 7 October 2019.

The changes are said to decrease migrant exploitation and ensure New Zealanders are employed in preference to migrants.  Briefly, some of what has already come into effect were:

  • From 7 October 2019, applicants applying for an (Accredited Employer) Work Visa an accredited employer must earn a minimum base salary of $79,560 per annum (or $38.25 per hour);
  • From July 2020, we saw the removal of ANZSCO that Immigration NZ used to determine the job’s skill level for Essential Skills Work Visas. Instead, a job paid at above the current median wage (NZ$25.50) is “higher skilled”, while a wage below the median is “lower skilled”.

After mid-2021, the government will be introducing a new visa application system that requires employers to become accredited if they wish to hire a migrant worker.

There will be a new temporary work visa that would essentially replace the existing 6 work visas:

  • Essential Skills Work Visa
  • Essential Skills Work Visa — approved in principle
  • Talent (Accredited Employer) Work Visa
  • Long Term Skill Shortage List Work Visa
  • Silver Fern Job Search Visa (closed 7 October 2019)
  • Silver Fern Practical Experience Visa.

To become an Accredited Employer

The new visa changes have not been implemented yet; however; we will discuss how we expect the policy changes will be shaped, and how this new framework may impact your business.

Currently, becoming an accredited employer is a complex process that requires the employer to demonstrate they are in a sound financial position, have good human resource practices, good work practices and are committed to training and employing New Zealanders. Once the employer successfully secures an accreditation status, they can support applicants applying for a Talent (Accredited Employer) Work Visa. The accredited employer must pay the applicant a base salary of $79,560 per annum (or $38.25 per hour for a 40-hour week).

The changes are described as being employer-focused to manage migration exploitation and labour market risks.  There will be three checks or “gates” to pass before an employer can hire a migrant. These are:

1) The Employer Gate

Immigration decides whether employers are suitable to employ migrant workers. There will be two main accreditation levels:

  • standard accreditation — for employers who want to hire 5 or fewer migrant workers, and
  • high-volume accreditation — for employers who want to hire 6 or more migrant workers.

2) The Job Gate

The job on offer is reviewed to see if it pays the market rate, the terms and conditions comply with employment laws, and the employer has done a labour market test if they need to do so.

3) The Migrant Worker Gate

The migrant applies for the Work Visa. They must show that they meet Immigration NZ’s character and health requirements, and have the skills to do the job. If the first 2 gates are passed, this ought to be a straightforward process, so that the main burden of the application process is shifted squarely onto the employer.

Are you intending to hire migrant workers in the future?

The new process will place pressure on employers to look at what they are doing to train New Zealanders. Although we do not know the mechanics of the new accreditation process at this stage, there is reasonable information on what to expect from the documents released for consultation and the information provided by Immigration NZ.

The employer would still need to comply with all immigration and employment laws, have good workplace policies in place, and make genuine efforts to train and recruit New Zealand citizens/residents. Although this looks like the existing Accredited Employer scenario, it is likely that the application process will not be quite as onerous. One reason for this is that it is hard to see how Immigration NZ could handle the sheer number of “accreditation” applications required to pass the first gate. With 20,000 plus businesses lining up to get their ticket, the system will need to be much more streamlined than it is already, or risk grinding to an embarrassing halt before it has even started.

If you intend to hire migrant workers in the future, now is the time to think ahead and talk to us. We can provide advice on how to prepare your business to become an accredited employer once these changes roll out. We can also provide support to ensure your systems and processes are compliant with Immigration and employment laws.  

If you are not an accredited employer, you can also talk to us on how to become accredited before these changes roll out.

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