Immigration has Caught a Virus Too

And it’s a virus of confusion. This is nobody’s fault. Two weeks ago – if you can remember back that far – the way that business got done was pretty familiar. Suddenly we are in a different world of isolation and restriction. Even though it is an agency of the State, Immigration New Zealand has been hit as hard as anyone.

The Level 4 lockdown and the Epidemic Management regulations mentioned in our last blog have raised more questions than they might have answered. From what I have seen in communications with INZ, the policy-makers don’t yet have answers to those questions.

For example, if someone on an employer-sponsored Work Visa has to choose to work less than 30 hours a week, or be made redundant, what happens to their application for Skilled Migrant Residence? The way things are now, their application would be declined because they are not in full-time work (which must be at least 30 hours per week). Do they have to take the chance of filing an appeal and arguing that they face special circumstances? On one view, they certainly do. Are the circumstances all that special, when tens of thousands of other people face the same issue?

By accepting lower hours, they might have breached the conditions of their Work Visa, which was granted on the basis that they would be in full-time work. This makes them liable for deportation. Is INZ going to act on that, or will they just look the other way because they don’t have the time or resources to chase everyone down? Might they decide to deport people in order to remove migrants from the picture, so that local workers get a chance to take the job? This is a live question, with talk now circulating about unemployment going into double digits. Or, perhaps, will the rules be relaxed for a period, in order to recognise that we actually need to keep migrants in jobs because they have skills that Kiwis do not?

That is just one aspect of the whole, sprawling mess. I have been involved in formulating questions which need answers, from the industry. Immigration has invited this. Perhaps they recognise that they are not equal to tackling this alone. Bear in mind that most visa staff and managers are unable to function at all because they are not set up for remote working, or they are having to make do at home and get onto conference calls and Zoom meetings.

Then there are unforeseen disconnects in the system. As we mentioned, everyone whose temporary visa was to expire between 2 April and 9 July gets an extension to 25 September because of the effect of the Epidemic Management Notice. Normally, people get an automated warning 45 days in advance of the end of their visa, to tell them to reapply or leave New Zealand. Well, they are still getting those emails. Someone forgot to switch them off, or recode them. This is probably causing quite a bit of stress for people who don’t know which message to trust.

Again, really it’s nobody’s fault. There are just so many loose ends to try to pick up right now that everyone is scrambling.

We don’t have all the answers either. Like our colleagues in the industry, we haven’t been told a great deal. However, we may be able to shed some light on your particular case if we can. We’re probably about as well placed as anyone outside the Policy and Service Design meeting room in Wellington, to suggest how things might go. Contact us if you have some important decisions to make, and we’ll see what we can do.

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

It’s Business as Usual at Laurent Law

While everyone gets settled into their new daily lives, with a lot of unanswered questions at this stage, we would like to assure you that Laurent Law is continuing to operate as normal.

If you have any questions or concerns regarding your visa situation, your family or staff members please do not hesitate to get in contact with us.

Here is what you need to know:

  • Our team are currently working remotely
  • We continue to assist with any immigration related matters
  • Although processing times will be a lot slower, we continue to assist with NZ visa applications
  • You can give us a call on 0064 9 630 0411
  • OR email askus@laurentlaw.co.nz or whoever is handling your case right now
  • We will keep you informed on any updates via our Facebook page https://www.facebook.com/NZImmigrationLawyers/ or through our blogs and newsletters.

Visas and the National Lockdown

On Monday 23 March 2020 the Prime Minister issued an Epidemic Management Notice under the Epidemic Preparedness Act 2006.  It gives special powers to various Government agencies, including Immigration.  It comes into effect on 2 April 2020 and expires on 25 June 2020, but can be extended if required.  It has the following effects:

  • Work, Student, Visitor, Interim and Limited Visas (“temporary visas”) which expire between 2 April and 9 July 2020 will be automatically extended until 25 September 2020.  INZ says that confirmation of extensions will be emailed to all Visa holders.  A Visa holder must be in New Zealand in order to have their Visa extended.  This does not relate to Resident Visas.
  • People holding temporary visas which expire on or before 1 April 2020, and who cannot leave New Zealand, must apply online for a new Visa.

The Notice gives additional powers to Judges and Immigration Compliance officers when detaining people who face deportation.

Getting Back to New Zealand

As you know by now, the border is closed to everyone except NZ Citizens and Residents.  Some narrow exceptions exist (for example, workers in essential services like health).  It is also possible to request entry permission for “humanitarian reasons” on a case-by-case basis.  However, it won’t be easy to convince Government that your circumstances are compelling, unless the situation is exceptional.

Anyone coming into the country must self-isolate for 14 days after arrival.  No exceptions.  People who do not follow instructions given by a Health Officer at the airport can be deported, because this now means that they have breached the conditions of their visa.

Impact on the Courts

Some of our work involves taking appeals to the Immigration & Protection Tribunal (IPT), and to the higher Courts in New Zealand.  The Chief Justice has ordered that only essential or urgent matters may be heard during the State of Emergency, and most Ministry of Justice offices are shut or working remotely like everyone else.

The IPT has cancelled live hearings for the time being (for example, Resident deportation and Refugee/Protection cases).  We can still file new appeals, which can be emailed to IPT staff.  As we operate in a largely electronic environment, we are well-placed to prepare evidence and legal submissions for our existing appellant clients.

What if I get Infected?

Covid-19 is now registered as an infectious or quarantinable disease under the New Zealand Health Act 1956.  This means that all people in New Zealand, regardless of their visa status, are eligible for publicly funded services to treat Covid-19.   All acute care relating to Covid-19 in New Zealand will be managed by the public health system.  There is currently no provision for this type of care in the private sector (source, Accuro Health Insurance).

Please stay safe and stay home.

Posted in Immigration Visas | Leave a comment

Limited evidence partnership applications

Can I get my partner a Visa if we have not lived together or have only lived together for a short period of time? What if we met online?

A New Zealand citizen or resident can support their applicant overseas partner for a Visitor or Work Visa if they are living together in a genuine and stable partnership. Immigration instructions do not specify a time period for an applicant to have been living together in a genuine and stable partnership with their New Zealand partner in order for a partnership Visitor Visa or partnership Work Visa to be approved. However in practice, the time required living together in a genuine and stable partnership to achieve an approval of such an application is at least 3 – 4 months.

A New Zealand citizen or resident can support their partner for a Residence Visa if they have been living together in a genuine and stable partnership for at least 12 months.

In all cases, the onus of demonstrating that an applicant and their New Zealand partner are living together in a genuine and stable partnership lies with the applicant and their New Zealand partner. This must be demonstrated in document form, because partnership applications are considered on the papers at least in the first instance. Sometimes an immigration officer will invite an applicant and their New Zealand partner to an interview in person, but this is after an initial assessment on the papers has been carried out.

Requirement for partnership to be genuine and stable

According to immigration instructions, a partnership is “genuine and stable” if an immigration officer is satisfied that;

  1. It is genuine, because it has been entered into with the intention of being maintained on a long-term and exclusive basis; and
  2. Is stable, because it is likely to endure

Evidence that a partnership is genuine and stable can include supporting letters from friends and family, evidence of financial interdependence, being married, having children, photos together. However no single type of evidence is determinative, all evidence will all be taken into account in an overall assessment of whether a partnership is genuine and stable.

Relevance of applicant and New Zealand partner living together

Evidence that an applicant and their New Zealand partner are living together can include joint ownership of residential property, joint tenancy agreement, correspondence addressed to both parties at the same address.

An interesting scenario arises where the applicant has not lived together with their New Zealand citizen or resident partner, or has not lived together with them for very long. Or, the applicant and their New Zealand partner may not be able to provide any or much evidence of living together in a genuine and stable partnership. These situations do not neatly meet the requirement in immigration instructions that the applicant and their New Zealand partner are “living together in a genuine and stable partnership”.

If the applicant is in New Zealand already on a Temporary Visa, a lack of living together usually needs to be rectified by ensuring the applicant and the New Zealand partner start living together and soon. If the applicant and the New Zealand partner are serious about their partnership, then this should not present a problem.

However the situation when not much living together has occurred or not much evidence of this can be produced can also arise where the applicant is overseas. Sometimes they may have never been to New Zealand. For example, consider the situation where the applicant and the New Zealand partner have met through an online dating website. They may have communicated frequently or recently married, but this is not enough to meet the requirement of living together.

INZ direction on how to deal with this situation

INZ has released an “advice to staff” which deals with this situation. Advice to staff dated 5 June 2015 explains that where the requirement for living together is not met, immigration officers should consider whether or not to exercise their discretion to issue a general Visitor Visa for the purpose of a family visit;

If the couple cannot demonstrate they meet one or more of the partnership requirements, including living together, Immigration Officers should refrain from granting visas as exceptions to instructions (ETIs) as this undermines the integrity of partnership instructions. Instead, if a couple appear to be genuine and credible but cannot demonstrate they meet living together requirements, officer should consider whether or not to exercise their discretion to issue a general visitor visa for the purpose of a family visit.

A further advice to staff dated 10 May 2019 states;

A number of applicants have been applying for temporary visas when they have not met part of instruction(s) … – specifically, they have not lived together – and have been requesting a General Visitor Visa to allow them to establish their relationship in New Zealand. While a General Visitor Visa can be granted to partners of NZ citizens/residents at INZs discretion, this should only be done when it has been established that the relationship is genuine and stable and that the applicants entered the relationship with the intention that it would be on a long term basis. A General Visitor Visa should not be the automatic default position when an applicant cannot demonstrate part of partnership instructions are met, as this risks appearing to create a de facto policy and would go against the intent of instructions. Each case needs to be assessed on its merits.

Grant of General Visitor Visa possible

Strong evidence of the relationship being genuine stable and as much evidence of any limited living together needs to be provided, in order to achieve the grant of a General Visitor Visa , in reliance on this advice to staff. Bona fides – whether the applicant is genuine in their intentions for coming to New Zealand – will likely be considered as part of the General Visitor Visa assessment by INZ.  Bona fides will not be established if an immigration officer is not satisfied an applicant will return to their home country should the relationship dissolve.

If the relationship is formative in nature and there has been little or no living together, a good outcome would be the grant of a Visitor Visa for say 6 or 9 months. An applicant may use the time they have in New Zealand on the General Visitor Visa to build have sufficient evidence of living together in a genuine and stable partnership to lodge a further partnership application, possibly Residence once 12 months is living together in a genuine and stable partnership is established.

It is not crucial that the applicant and their New Zealand partner are living together in a genuine and stable partnership at the time the application is lodged. Periods of separation between an applicant and a New Zealand partner are acceptable, however evidence of communications while separated should be provided to INZ.

Note that applicants from a Visa waiver country can enter New Zealand for 3 month without needing to apply for a Visa first (they do however need to apply for a NZ electronic travel authority). However if the intention is to remain in New Zealand with their partner and go on to apply for further partnership Visa, it is generally not recommended to make use of the 3 month Visa. Instead, the applicant should remain in their home country and apply for a Visa from there, the existence of the partnership and the probable intention to apply for a further partnership Visa once in New Zealand explained. The reason for this relates to the issue of bona fides – an applicant may not be seen as a genuine visitor for 3 months on arrival in New Zealand on a Visa waiver if they have a partner in New Zealand they will be staying with.

If the relationship has been in existence for a number of years and there has been some living together, maybe the couple are married and have a child together, it may be possible to convince INZ to  grant a 12 month Work Visa at the initial stage. Often Laurent Law will present an application for a Work Visa of this nature as also being for a Visitor Visa as a fallback option, if INZ is not prepared to grant the Work Visa.

Contact us here at Laurent Law to help with you partnership application, where you and your partner may not have lived together for very long or at all and we will see what we can do to assist.

Posted in Citizenship, Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas, Practice of Law | 3 Comments

Getting Residence under the Skilled Migrant category

For some wealthy applicants who possess funds they are willing to invest in New Zealand, $3 million NZD (for the Investor 2 category) or at least $10 million NZD (for the Investor 1 category) the migrant investor categories present an option for obtaining Residence in New Zealand. However this is not the case for many people!

For some applicants who have a partner who is a New Zealand Citizen or Resident, applying for Residence under the partnership category where the couple have been living together in a genuine and stable relationship for at least 12 months is also a way to gain Residence.

However the main option by which most people gain Residence in New Zealand, is the Skilled Migrant category. Under the Skilled Migrant category the “principal” (main) applicant is awarded points depending on a range of factors, including age, work experience and qualifications. The number of points required for an application under the Skilled Migrant category to be successful is currently 160.

Getting to 160 points

It is important to understand that, due to the way the points system is structured and points allocations are weighted, in order to achieve 160 points, most people require current skilled employment or offer of skilled employment in New Zealand – what I refer to below simply as “skilled employment”. A job is worth 50 points. So a point combination which often arises is the following;

Age 20-3930
Qualification – Bachelor degree50
Skilled employment50
Current or offer of skilled employment outside Auckland30
TOTAL160

Without the 50 points for skilled employment, it is quite difficult to achieve the 160 points requirement. One possibility is as follows.

Age 20-3930
Qualification – Masters or PhD degree70
Skilled work experience – 10 years50
Partner qualification – Bachelor degree10
TOTAL160

 Or, consider the following.

Age 20-3930
Qualification – Masters or PhD degree70
Skilled work experience – 10 years50
Bonus points for work experience in an area of long term skill shortage – 2 – 5 years (for example occupations in IT, a range of types of professional Engineers).10
TOTAL160

Achieving 160 points without skilled employment requires a higher Level qualification such as a Masters degree or PhD, a number of years of skilled work experience (work experience gained after the qualification was awarded), or possibly work experience in an area of long term skill shortage. This is quite difficult for an applicant to achieve – they need to have a lot going for them in order to qualify.

Changes to point structure make points for skilled employment more important

The 160 points threshold was introduced in October 2016 and the allocation of points for various factors was changed in August 2017. See for example an earlier blog discussing the changes, here.

Prior to October 2016, it was possible to secure Residence either with 100 points including 50 points for skilled employment or 140 points without skilled employment.

Prior to October 2016, if an applicant scored at least 140 points without skilled employment, they would be interviewed by Immigration New Zealand to assess if they had the ability to successfully settle in New Zealand and if so, Residence would be granted.

The increase to a 160 point requirement has set the bar much higher for applicants to get Residence.

Scoring at least 160 points without skilled employment now results in the grant of a 9 month job search Work Visa (if the principal applicant is in New Zealand) or a 12 month job search Work Visa (if the principal applicant is outside New Zealand).

To be granted Residence, a principal applicant must secure an offer of skilled employment during the Job Search Work Visa period. Scoring at least 160 points without points for skilled employment only gets you a Job Search Work Visa and not Residence. This is contrasted to the older rules, where it was possible to get Residence following an interview with INZ.

Holding skilled employment is therefore now essential at some point in the Residence application process, even if it is preceded by the grant of a Job Search Work Visa.

The need for a Work Visa

An applicant for Residence who applies with points for skilled employment is also going to require a Work Visa. This is because the current processing time for a Skilled Migrant Residence application is up to 15 months.

The long processing time makes it important that an applicant hold a Work Visa to work in their skilled employment for a period of time while the Residence application is being processed. An employer is not going to wait for 15 months for an applicant to be able to start work with them.

There is an advantage in securing Job Search Work Visa, because many New Zealand employers are only willing to offer employment to applicants who already have a Work Visa. Job Search visas are available for people who have completed a NZ qualification, and they allow people to work for any employer, in any job.

Convincing a New Zealand employer to employ someone who does not already have a Work Visa can be done, but the type of Work Visa the applicant applies for is usually an Essential Skills Work Visa which requires the employer to demonstrate there are no New Zealand citizens or residents that can fill the role. Having a Job Search Work Visa instead can make the process of securing skilled employment much easier.

Other considerations

Other requirements that need to be met for the grant of Residence under the Skilled Migrant category include;

  • Meeting a minimum standard of English, which can include an IELTS test score of 6.5 which is no more than two years old at the time the Residence application is lodged;
  • Being of an acceptable standard of health;
  • Being of good character;
  • The skilled employment, where the occupation is ANZSCO skill Level 1, 2 or 3, pays at least $25.00 per hour. Skill Level 4 or 5 occupations are acceptable if they pay more than $37.50 per hour.

It is also relevant to bear in mind that qualifications sometimes need to be assessed by the New Zealand Qualifications Authority (NZQA), if they are not on the list of qualification automatically recognised as equal to a NZ qualification.

Therefore, before commencing any Skilled Migrant Residence application process, where a qualification is not automatically recognised, applying for the qualification to be assessed is an important first step. The International Qualifications Assessment (IQA), takes around 1 month to be completed and usually costs NZD$445. Information about the IQA can be found here  .   

Some occupations also require NZ occupational registration. If that is the case, you cannot claim points for skilled employment in that job unless you first get registered. Occupations which require registration include Electrician, Electrical Engineer, Pharmacist and Teacher, and the full list can be found here.

The preparation and filing of a Skilled Migrant application requires a high degree of planning, to avoid any potential pitfalls. Contact us here at Laurent Law if you need help with a Skilled Migrant application.

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Thrillseekers Paradise – Whanganui River

Our in-house thrillseeker, Roxanne Whyte, went on a breathtaking experience recently. She and a group of friends canoed the Whanganui River along one of New Zealand’s  ‘Great Walks’. The adventure did not disappoint. They covered a distance of 97km, from Whakahoro to Pipiriki over a 3 day period.

New Zealand’s Great Walks pass through breathtaking and spectacular scenery. Native forest, lakes and rivers complimented by mountain peaks that leave you in awe, gorges and valleys that are picture perfect summarise the beauty of this country. Great Walks are very user friendly and easy to follow. Explorers can elect to travel on their owns terms, but guided trips with more comfort are on offer. These walks are accessible from major towns. They are well services by local operators and offer the real Kiwi experience. Roxanne and friends can recommend them without hesitation.

Canoeing along the river was memorable for different reasons. A bit of cave exploring, walking and a lot of fun filled the days of sunshine. Canoeing can be arduous and the group were tested in terms of endurance and stamina but they all agreed that this was a life experience that most can only dream about.

Muhammad Ali once said that “I don’t count my sit ups. I only start counting once it starts hurting.” This is a shining example where this approach to life will take you. To experience the breathtaking, the extraordinary and the fullness of this existence require from us a little bit more introspection. It requires the willingness to test ourselves and to go beyond the mundane and everyday experiences. Fresh air, mountain skies, deep blue rivers and lots of greenery inspire us to be better versions of ourselves.

You are guaranteed to get tired when you really test your own abilities. Roxanne did admit that she was exhausted at the end but she fell asleep with a smile on her lips every night. She felt renewed and thankful for the opportunity to experience nature this way.

If you are thinking of moving to New Zealand permanently, you must consider the rich, natural beauty and freedom that this country offers. Contact us immediately so we can assist you to make your bucket list a reality.

 

 

 

 

 

Posted in Immigration Visas | 2 Comments

Acquiring New Zealand citizenship

Although it often receives less attention compared to Residence and Temporary Visa categories, acquiring New Zealand citizenship is the final stage in the immigration journey for many. New Zealand citizenship enables the holder to do the following:

  1. Live in New Zealand indefinitely;
  2. Travel overseas on a New Zealand passport;
  3. Stand for Parliament or local government;
  4. Have full economic and social rights;
  5. Represent New Zealand in Sports.

Holding a New Zealand passport is something that can be valuable, see for example an article describing this here. Holders of New Zealand passports can visit 171 countries and territories worldwide without needing to apply for a Visa in advance.    

New Zealand citizenship can be acquired in three different ways.

Citizenship by grant

The key requirements that need to be met in order for person to receive citizenship by grant are:

  1. The person has been living in New Zealand as a resident for at least the last five years;
  2. The person has spent enough time in New Zealand in the last 5 years, which is at least 240 days in each 12-month period at 1,350 days across the 5 years;
  3. The person is able to hold a conversation in English;
  4. The person is of good character;
  5. If granted New Zealand citizenship, the person intends to continue to reside in New Zealand.

Most applications for citizenship are determined by the Department of Internal Affairs under delegated authority. They receive approximately 37,000 applications for citizenship by grant each year. Where one of the requirements for the grant of citizenship is not clearly met, the application is referred to the Minister of Internal Affairs for consideration.  

Where a person receives citizenship by grant, they are issued with a certificate of New Zealand citizenship. The person must also attend a public citizenship ceremony, swear an oath of allegiance to the Queen and swear they will faithfully observe the laws of New Zealand.

An example of something that may indicate poor character include criminal convictions, a pattern of traffic infringements (100 or more demerit points in the two years prior to the application), and information received from the Police about a serious incident or pattern of minor incidents of family violence.

Unless there are exceptional circumstances, a person will not be granted citizenship if at any time they have been sentenced to a term of imprisonment of more than 5 years, within the preceding 7 years the person was sentenced to a term of imprisonment of less than 5 years, or within the preceding 3 years the person was convicted of an offence but was not imprisoned.

Citizenship by birth

A person born in New Zealand before 1 January 2006 is a New Zealand citizen by birth.

A person is born in New Zealand on or after 1 January 2006 is a citizen, but only if when they were born at least 1 of their parents was a New Zealand citizen or had Permanent Residence or Residence status.

People born in New Zealand to those who hold Temporary Visas do not acquire New Zealand citizenship. Instead, they take the most favourable immigration status of either of their two parents. A child born to a parent who holds Temporary Visa will hold a Temporary Visa to the expiry date of the visa held by the parent whose Temporary Visa has the longest unexpired period. A child born to a parent who is unlawfully in New Zealand, ie does not have a Visa, is also unlawfully in New Zealand.

Citizenship by descent

If a person is born overseas and at least 1 of their parents was a New Zealand citizen by grant or birth when the person was born, they are a New Zealand citizen by descent. Persons in this category need to register their citizenship in order to make it official and in order to receive a New Zealand passport.

New Zealand citizens by descent pass New Zealand citizenship to their children if born inside New Zealand but not children born outside New Zealand. Children born outside New Zealand must meet the requirements for citizenship by grant. A New Zealand citizen by descent can apply for New Zealand citizenship by grant if they meet the requirements for this and if it this approved, then children born outside New Zealand can apply for New Zealand citizenship by descent.

Other considerations

New Zealand allows a person to be a citizen of another country in addition to New Zealand. However some other countries do not allow dual citizenship, in which case a person can face a choice regarding which countries’ citizenship status they wish to keep.

A person can be deprived of their citizenship if they have acted in a manner that is contrary to the interests of New Zealand. A person can also be deprived of New Zealand citizenship if it becomes apparent that the citizenship was procured by fraud, false representation, or wilful concealment of relevant information, or by mistake. Once New Zealand citizenship is acquired, a person does not lose citizenship by going to live in another country for a period of time, for example Australia.

Sometimes children are adopted and this can affect their citizenship status. Adopted children born in New Zealand during or after 2006 are New Zealand citizens by birth if, at the time of birth, at least one of the child’s biological or adoptive parents was a New Zealand citizen, Permanent Resident or Resident. Children adopted outside New Zealand during or after 1978 are New Zealand citizens if;

  1. They were adopted before 18 November 1992 or were under 14 years old at the time the adoption was finalised; and
  2. The adoption laws in the country where the adoption took place are compatible with New Zealand law; and
  3. At least one of the child’s adoptive parents was a New Zealand citizen (by birth or grant) at the time of their adoption.  OR

Alternatively;

  1. The adoption is an intercountry adoption between countries that have signed up to the Hague Convention on Intercountry Adoption and the adoption complies with those requirements; and
  2. At least 1 of the child’s adoptive parents was a New Zealand citizen (by birth or grant) at the time of the adoption. 

The Hague Convention is a piece of international law and the list of countries which are signatories, which includes New Zealand, can be found here .

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

Is INZ Trying to Deter Refugees?

In recent months, Immigration New Zealand has required asylum seekers to get Medical and Police Certificates, when they apply for visas to work here while their claim is considered.  As explained in a TVNZ report this week, these requirements used to be waived because of the situation of refugee claimants.  Now they face significant hurdles and delays just to be able to survive in this country.

INZ says that all they are doing is applying the same rules to refugee and protection claimants as for everyone else.  This, however, ignores the practicalities, and the special legal status, of refugee applicants.

A Bit of Law

New Zealand is a signatory to the 1951 UN Refugee Convention, which has been a part of New Zealand law for 10 years.  People who apply may be “recognised” as refugees.  That is, if they are accepted under the Convention, NZ has not given them refugee status – it has merely confirmed a status which they had already acquired because of their background and experiences.  It has been accepted by the Courts that the term “refugee” also applies to someone who has made a claim which has not yet been decided.

A key principle of the Refugee Convention is non-refoulement – a refugee must not be sent back to the country where they fear persecution.  Again, this has always been extended to claimants whose status has not yet been formally recognised, who are still in the process.  Otherwise, a country could be guilty of sending someone back to the risk of death or serious harm, who was actually entitled to its protection.

Medical Certificates

Immigration has always required asylum seekers to be screened for TB, to minimise the risk of that disease spreading.  However, doing the X-Ray was never tied to whether the applicant could get a visa.

The problem with requiring a Medical Certificate before a visa can be granted is that it slows down the process of approval, sometimes by several months.  In the meantime, many claimants may have no visa if they came in without a passport, which happens when they have used a false passport to board a flight here, and have destroyed it before arrival.  Or perhaps they originally entered as a visitor and made a claim after arrival.

The point is that they must remain here in order to get the claim assessed, and to make an appeal if the claim is declined the first time.  If they leave, the claim is automatically cancelled; and many of them only have the home country to return to, where they fear being harmed.

As I said above, NZ cannot deport them while they are waiting.  This means that, even if they have serious health issues, it will make no difference to whether they get a visa or not.  If someone has poor health, they still cannot be removed.  If INZ was to decline their visa for this reason, then all it is doing is making them overstayers, forced to work illegally to avoid starvation.

Police Certificates

The same applies to demanding that refugee applicants get police clearances.  Even if it was found that someone had committed war crimes, they could only be deported if they were found to pose a present threat to national security (admittedly, something which the Government would probably be keen to do in such a situation).  Otherwise, even they would be entitled to have their fear of persecution assessed, before applying Exclusion Clause 1F of the Refugee Convention to decide whether they deserved refugee protection.

Many asylum seekers have fled their home country because they are afraid of the government.  INZ now expects them to ask that government to produce a Police Certificate for them.  Not only does this draw attention to them from the very regime that they fear, it can also heighten the danger for their families and associates back home.  In some states, the very fact of finding out that a citizen has claimed asylum somewhere else increases the danger for them and those close to them.  This is one reason why section 151 of the Immigration Act prohibits disclosure of information about a refugee or their claim, or even the existence of a claim itself, with some very limited exceptions.  One of these is where “there is no serious possibility that the safety of the claimant or any other person would be endangered by the disclosure of the information”.  So the law itself recognises the danger.

Underlying Motives

As I have said, Immigration paints its change in approach as being about bringing consistency in the way visa applications are handled.  However, for the reasons set out above, claimants for refugee or protected person status are in a very different class to others.

The numbers of asylum claims have increased significantly in the last couple of years – from 339 in 2015-16 to 510 in the year to June 2019.  It may be no coincidence that this switch to greater consistency has happened this year, after decades of past practice in which claimants were not so burdened as they are now.  Perhaps it is hoped that, by making it more difficult for refugee and protection claimants to get visas, this will somehow deter people from coming here for that purpose.

I was heavily involved in representing refugees 20 years ago, and I have seen this before.  After the September 2001 Twin Towers attacks, there was a justifiable increase in scrutiny of travellers in general.  It was pretty well known among those of us who worked in this area that the passenger profiling at Bangkok or KL extended to looking out for those who might seek asylum on arrival.  Many people were stopped from boarding if they looked suspicious.  This appeared to correspond to a dramatic drop in the numbers who finally made it to our shores and applied to be refugees.  Similarly, the fixation on “mass arrivals” – the fear of hundreds of people coming ashore by boat, as they have tried to do in Australia – resulted in laws which penalised asylum claimants for daring to make such a perilous voyage.

If this is the reason for INZ changing its tune about Medicals and Police Certificates, then it is both legally and ethically wrong.  As a receiving country for refugees, bound by international treaty, New Zealand has an obligation to deal with both recognised refugees and claimants humanely.  If one was to accept, for a moment, that everyone claiming asylum has a valid fear of harm, then they are clearly among the most vulnerable group in society.  Yet, until a claim is decided, that is exactly what their legal status says they are.  That is why their ability to remain lawfully in the country should be facilitated, the way it used to be.

The alternative is to demonise them – as some do – as opportunistic gamers of the system.  And perhaps that’s what this is all about, after all.

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Residence, Permanent Residence and Citizenship

Many people often ask the difference between Residence and Permanent Residence Visa status. Both enable the holder to remain in New Zealand permanently, but there is an important difference.

The holder of a Residence Visa is able to

  1. Travel to New Zealand in accordance with the conditions of the Visa relating to travel; and
  2. Apply for entry permission.

If the holder of a Residence Visa is granted entry permission, they are able to

  1. Stay in New Zealand indefinitely;
  2. Work in New Zealand or the exclusive economic zone of New Zealand; and
  3. Study in New Zealand.

The holder of a Permanent Residence Visa is able to

  1. Travel to New Zealand at any time;
  2. Be granted entry permission;
  3. Stay in New Zealand indefinitely;
  4. Work in New Zealand or the exclusive economic zone of New Zealand; and
  5. Study in New Zealand.

The key difference between Residence and Permanent Residence Visa status therefore is in the ability to travel to (and from) New Zealand. The Residence Visa comes with travel conditions which are normally two years in duration from the first day the holder has in New Zealand as a Resident, while with the Permanent Residence Visa the holder is able to travel to New Zealand at any time.

A Residence or Permanent Residence Visa is only cancelled in certain situations, but the holder should ensure that when they get a new passport upon expiry of an old passport, that they apply for a transfer of the Residence or Permanent Residence Visa to the new passport.

In order to qualify for a Permanent Residence Visa, the holder of a Residence Visa must;

  1. Hold a Residence Visa and have held it for at least 24 months;
  2. Their first day in New Zealand as a Resident needs to be at least 24 months before the application for Residence is made;
  3. The holder can demonstrate a “commitment to New Zealand”;
  4. The holder has met any conditions imposed on their Residence Visa;
  5. The holder meets character requirements.

“Commitment to New Zealand” can be demonstrated in one of five ways;

  1. Significant period of time spent in New Zealand. The holder has spent 184 days or more in New Zealand, in each of the two 12 month periods of the 24 months immediately preceding their application for Permanent Residence.
  2. Tax residence status in New Zealand. The holder has spent 41 days or more in New Zealand, in each of the two 12 month periods of the 24 months immediately preceding their application for Permanent Residence, and the holder has tax residence status in New Zealand.
  3. Investment in New Zealand. The holder has been approved a Visa under the Business Investor category and has met conditions imposed on their Visa, OR the holder has been approved a Visa other than under the Business Investor Category and has maintained an investment in New Zealand of $1,000,000 or more that meets requirements for investment funds;
  4. Establishment of a business in New Zealand. The holder has successfully established a business in New Zealand that has been trading successfully and benefiting New Zealand in some way for at least 12 months.
  5. Base established in New Zealand. The holder and every member of the family who also holds Residence has resided in New Zealand for at least 184 days in the two year period immediately preceding their application for Permanent Residence, AND they own and maintain a family home in New Zealand OR they have been engaged in full time continuous genuine employment in New Zealand immediately preceding the application for Permanent Residence.

The way that most people qualify for Permanent Residence is by meeting the significant period of time spent in New Zealand requirement, as this is the most straightforward method.

Family members who were included in a Residence application will also qualify for Permanent Residence, where the Principal Applicant meets at least one of the five commitment to New Zealand requirements.

Having said all this, there are some classes of Residence Visas which carry what are called “section 49 conditions”.  This includes Investors and those granted Residence under the Parent category.  Discussion of some of these special cases is found in our blog from February 2019.

There is one more piece of the puzzle which people often ask about, which is the grant of New Zealand citizenship. New Zealand citizenship enables the holder to;

  1. Live in New Zealand indefinitely;
  2. Travel overseas on a New Zealand passport;
  3. Stand for Parliament or local government;
  4. Have full economic and social rights;
  5. Represent New Zealand in Sports.

To qualify for New Zealand citizenship there are some key requirements which must be met including:

  1. The applicant has been living in New Zealand as a resident for at least the last five years;
  2. The applicant has spent enough time in New Zealand in the last 5 years, which is at least 240 days in each 12-month period at 1,350 days across the 5 years;
  3. Be able to hold a conversation in English;
  4. Be of good character.

New Zealand allows dual citizenship to be held, so if an applicant’s home country also allows dual citizenship, the result can be that the holder is a citizen of more than one country. However, bear in mind that some countries do not themselves allow for dual citizenship. If you are from one of those countries, then you may face a difficult choice about whether to keep your old nationality, or give it up for New Zealand Citizenship.

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Arranged Marriages and Partner Visas

Following concerted protests from the Indian community in particular, and intervention from the Prime Minister, Immigration agreed to review the rules on Culturally Arranged Marriages (“CAM”) to allow overseas partners to get visas.  The new visa Instructions came out yesterday, and take effect immediately.

However, they solve only part of the problem.

How Did We Get Here?

The previous CAM policy allowed New Zealanders who got engaged to someone in the home country to sponsor them, provided they could show that the match was arranged according to an “identified cultural tradition”.  It did not cover people who had already married, and by that simple fact they were required to apply for a Partnership Visa.

A key difficulty with this is that Immigration interprets Partnership policy to require a couple to show that they are, or have been, living together for long enough to be treated as being in a “genuine and stable” relationship.  Experience showed that a minimum time together of 3 – 4 months could qualify.  Many people had genuinely married, but only spent a few weeks together before the New Zealand partner needed to return to their job.  In such situations, visa officers had been using their discretion to grant a General Visitor Visa (GVV) to allow the couple to test the relationship onshore before applying for a proper Partner visa.

Then came Visa Pak 400, which “clarified” that people who didn’t meet the living together criteria could not expect a GVV as of right.  In a way, it was saying nothing new.  However, the result was the visa officers were rejecting Partner visas, and refusing to consider GVVs, out of hand irrespective of other indicators that the marriage was real.

The record needs to be put straight here.  Some news reports claimed that Immigration was imposing a rule that couple had to have been together for 12 months before they could do a Partnership visa.  That was never the case – the 12-month requirement only applies to Residence applications.

The New CAM Policy

These Instructions have been extended, to allow those who have married outside New Zealand to put in a CAM application without the “living together” requirement.  The non-NZ partner can then get a 3-month Visitor Visa to enable them to begin living with their spouse here, and apply for a Partner visa before their Visitor Visa runs out.

The test for a “culturally arranged” marriage has been changed as shown by the addition of the highlighted words:

the marriage follows an identified and recognised cultural tradition where the arrangements for the marriage, including facilitation of the selection of the persons to be married, have been made by persons who are not parties to the marriage

What INZ will accept as a “recognised” tradition remains to be seen.  Historically, it has often been a challenge in proving what the couple’s traditions are, and that they have been followed to the letter.  The policy has always allowed for evidence from an independent source, which could include third party research, or a letter from a community leader.  However, care had to be taken to ensure that the story that was told about the betrothal arrangements was entirely consistent with the tradition.

Another big snag is that the couple must have met before the visa application is made.  By the very nature of arranged marriages in some quarters, that does not happen, and sometimes is not supposed to happen.  This requirement undermines the very purpose of having the CAM policy for these people, and it has not been changed.

The reference to “facilitation” may actually be a relaxation of the previous rule that others (usually the couple’s families) had to select them for each other.  On the other hand, it may reinforce the need to prove how those arrangements took place, which can be difficult if such discussions are purely verbal.

Make no mistake, the CAM policy was, and remains, a difficult one to meet.

Others Left Out in the Cold

What about people who have informally been introduced but have not followed the pattern of what their ancestors did?  There are many of those, and they cannot use the new CAM Instructions.  Societal changes have eroded the customs of many communities, so that although a couple may still seek approval from their families to wed, they actually choose their partner for themselves in the “Western” way.  Concern has already been expressed about why culturally arranged marriages have been singled out under the changes.

They, then, are back with Partnership Instructions and the vagaries of how these are applied.  In order to recognise a valid partnership, Immigration is required to apply 4 criteria:

  • Credibility – are they believable in what they say about their relationship?
  • Living together – unless there are “genuine and compelling” reasons for being apart;
  • Genuineness of their reasons for being together, and in their intention to remain in the relationship long-term; and
  • Stability – is the partnership or marriage likely to endure?

Visa officers must apply all 4 of these tests.  In many cases, however, they have paid lip-service to this requirement, and used the lack of time living together as the sole reason to decline an application.  This is evident from numerous decision letters that I have seen, and it has been the source of vigorous discussion between INZ and the immigration industry.

As can be seen, living together is only one test to be applied.  It is true that, technically, Immigration can decline an application if that ground is not satisfied.  But for someone to decide that a husband and wife, whom they have never met, is not in a true partnership simply because they have not put enough time on the clock, is contrary to the structure of this policy.  It is detailed, and encourages INZ staff to take a nuanced approach to such assessments.

Also yesterday, Immigration released an Internal Administration Circular which opens the door for visa officers to consider a GVV for those who have not recorded much time living together.  It states that this could be granted for a “family visit”, and the mere fact that they might then go on to apply for a Partnership visa after arrival should not in itself invalidate the genuineness of the visit.

However, the IAC leaves broad discretion firmly in the hands of visa staff.  It also stresses that any applicant must prove that they have a bona fide intention – that is, that they have a genuine intent and lawful purpose in coming to NZ.  I, for one, am not convinced that this new guidance will result in real advantage for applicants, as they can still be declined for a perceived lack of bona fides, instead of using minimal time living together as the justification for denying a visa.

The present political storm, and Immigration New Zealand’s attempt to smooth it over, might have been avoided.  To be fair, INZ has faced huge challenges of restructuring and high staff turnover, at the same time as a major upswing in demand for temporary visas in particular.  Staff training and experience (or lack of it) is a real issue.  But so are the lives of New Zealanders, their partners and their families, who have suffered distress and turmoil because of a mechanical application of the rules.

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INZ’s Absurd Accusations in Character Assessments

We have recently encountered a partnership case where Immigration New Zealand (“INZ”) have accused the applicant of providing false and misleading information to INZ without any valid basis. The provision of false and misleading information to INZ is a serious accusation and potentially making the applicant ineligible for grant of a temporary entry visa unless granted a character waiver.

The general rule is that every applicant must meet the good character requirement for entry to New Zealand. This information is also available on INZ’s Knowledge Base. Under immigration instructions A5.45 Applicants normally ineligible for a temporary entry class visa unless granted a character waiver, include any person who: “in the course applying for a New Zealand visa, has made any statement or provided any information, evidence or submission that was false, misleading or forged, or withheld material information” A5.45(b)

In a recent case, INZ have interviewed a couple for a temporary entry partnership application. During the interview, the immigration officer questioned the applicant and the supporting partner about the letters of support provided from their parents. The parents knew about the relationship and the letters but did not write the letters. No questions were raised to the parents as to whether they signed the letters as INZ focused on who typed (wrote) the letter.

During the interview the applicant and supporting partner confirmed they typed the letters and did it based on the conversations they had with their parents about their relationship. The letters were then signed by the parents who acknowledged the content is true and correct.

Is typing a letter on behalf of someone considered false /misleading information?

The first step was to identify whether INZ’s accusation is genuine. We had to hear the full interview as this is a crucial step, knowing exactly how the questions were phrase and the answers received to each of those questions and whether it was within context. In this case; upon hearing the full interview; we identified that INZ’s emphasis on who wrote the letter was flawed and unreasonable. INZ are aware the parents signed the letters, approved the content of the letter and acknowledged the relationship. However, INZ advised the applicant during the interview that they need to write on the form that this letter was typed following a conversation with the parents. This is factually incorrect, because it is irrelevant who writes the letter, what is relevant is whether the content of the letter is correct and whether the parents signed the letters.

Therefore, the applicant’s actions cannot be interpreted as providing false and misleading information as there was nothing false or misleading in the information provided. A5.45(b) does not apply and character waiver is not required. A person who types or writes a letter to help someone else before they sign it, is not committing a crime. If a document is transcribed by one person which records what someone else says, the writer is effectively acting as their secretary taking down dictation. So, there is no dishonesty or misleading information that was provided. The accountably lies on the person who signs it. A person is tempted to provide false or misleading information when they are trying to prove something that is not true and INZ have made serious accusation which is not based on valid evidence.

What to take out of this?

The claim that this discloses a character issue warrants a proper consideration of the definition of false and misleading information and the application of the balance of probabilities test before reaching the conclusion that it falls under A4.45(b) of the character instructions. If we have not stepped in to challenge the fact there was no false or misleading information provided to INZ, the consequences would have been serious due to the absurd accusations. The application could have been declined if the character waiver was denied and the applicant would have had an alert on INZ records.

INZ’s concerns are not necessarily accurate and spot on. Like any other human, immigration officers can make mistakes. If you receive a letter from INZ raising character concerns, don’t panic, but this is when you stop and consider reaching out for professional help to address such concerns. If you encounter such an issue, contact Laurent Law for assistance.

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