In the News This Week: Partners and Overstayers

The importance of immigration to life in New Zealand is underscored by the amount of media attention it receives.  This week is no exception.

Partnership Visas Still a Sore Point

It started with my blog in February, which sparked some interest from Radio New Zealand about an upswing in decline of Partnership Work and Resident Visas.  The latest round involves Immigration New Zealand denying that there’s any conscious squeeze on such applications.  This was in the context of a street protest against what people call an unfair approach to such applications.

While the latest story focused on the question of how people can show documents to prove that they live together, the real issue is wider.  Immigration is tasked to decide whether a couple is in a “genuine and stable relationship”.  The Policy suggests a range of ways to establish this, but ultimately it is a subjective judgment.  And nowadays, scenarios which were once broadly acceptable no longer pass the test.  The numbers of declines speak for themselves, visible to anyone on INZ’s own published statistics.

This means that the shift is one of office culture.  One theory I have heard floated is that visa officers were told a year or two back that they were handing out approvals too easily.  As a result, the pendulum has swung back to presuming that applications must be declined unless they have to be approved.  Minor inconsistencies become “credibility” issues which can poison an entire application.

Decision letters contain catch-all observations like “We are not satisfied that your relationship is genuine, stable and likely to endure”, without explaining why the writer reached that conclusion.  This sort of approach has been criticised by the Courts as a de facto failure to give reasons for the decision.  What may be needed here is a few judicial reviews of partnership decisions in order to drive that point home.  Unfortunately, this is an expensive route to take, but we remain on the lookout for a worthy case to run with.

Overstayers – What’s the Solution?

Another article from TVNZ News declared, with shock, that NZ is flooded with more than 10,000 overseas people without visas – a “pool of foreigners”.  Like this was a surprise.

Actually, this is the lowest number of overstayers on the record since the Millennium.  Back in 2000 we clocked 20,000, and the numbers have been slowly falling since 2004.  It is hard to know how accurate the official figures are because, as my colleague Richard Small commented, many of them go underground to avoid detection.

Is this such a terrible crisis, as TVNZ would suggest?  To put it in perspective, people without visas represent 0.2% of the population.  Australia, with about 62,000 illegals, sits at the same level.  The UK could still be struggling with more than 300,000 people without visas, or 0.4%.  And the US may harbour 11 million illegal aliens, or 3 in every 100 people on American soil.

This is not to deny that we have a problem.  We do.  Often, the status of an overstayer affects the lives of family members who support them – or whom they support, by working under the table, remitting money home and so on.  This is particularly so in Pacific Island communities, which still account for a significant proportion of overstayers.

One way to fix this is to offer an amnesty to unlawful migrants so that they can regularise their status.  This last happened in the year 2000.  As a result, numbers fell by about 2000, but popped back to previous levels after a year or two.  For some reason, it doesn’t seem to fix things.

We often tell people who come to us, and who have a valid chance to hold a visa, to self-deport themselves home and apply to come back.  This is a risky strategy, but we have made it work for people in long-term relationships with New Zealanders (especially if they have children), or those with a strong job offer.  The big problem with trying this route is the attitude of visa staff in some notorious INZ offices, in India and China in particular.  They almost always point to the applicant’s poor immigration history to decline their application because they fail the “bona fides test”.  That is, they are likely to breach their visa conditions if they are allowed back in, because they’ve done it before.

There is sometimes a way around this.  While applicants for temporary visas must always pass the bona fides test, those applying for Residence do not.  Therefore, if someone is to be sponsored by their NZ partner, and has lived with them for over 12 months already, we recommend that they go straight for a Residence application after they fly home.  It takes longer, and creates an issue because the couple obviously can’t live together – which they are meant to do in order for their relationship to be recognised.  However, it is a more certain route than the other ones which people persistently try in vain – requests for a visa under section 61 of the Immigration Act, or “appeals” directly to the Minister.

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All about Interim Visas

Interim Visas were essentially introduced seven years ago to prevent applicants becoming unlawful while waiting for the decision of their further temporary visa application. But surprisingly, Interim Visas appear to have contributed to the number of overstayers and Section 61 Visa Requests. They can, in some situations, adversely affect applicants and other associated parties involved.

Introduction to Interim Visa

An Interim Visa is only granted if the applicant holds a valid temporary visa[1] and has applied for a further temporary visa before the previous one expires, whilst in New Zealand. One cannot ask for or apply for one.

In most cases, Interim Visas are generated by an automated system and are sent by email to the applicant a few days before their last visa runs out.

It is important to note that not everyone is granted Interim Visas automatically by default. If for example, a person has alerts or warnings related to character or are liable for deportation, an immigration officer must carry out a manual assessment to determine whether to grant one. And in some cases, the officer may decide not to grant an Interim Visa.

Interim Visa Conditions

Interim Visas are issued with various visa conditions which could potentially lead to loss of employment or a job offer and/or breach of visa conditions.

Let me give you an example where things could potentially go wrong if you do not check your interim visa conditions and fail to comply:

B is on a 1-year Post Study Work Visa (open) which allows him to work for any job, any employer in any location. While on this visa, B works as a Retail Manager for Company ABC in Auckland. B’s employer agrees to support B for a further Work Visa allowing him to continue his job.

Say that B decides to apply for:

  1. a Post Study Work Visa (employer-assisted); or
  2. an Essential Skills Work Visa; or
  3. a Partnership Work Visa (open) based on a partnership relationship.

B’s Interim Visa, if granted, would have “Visitor” conditions which will not allow him to work in New Zealand. B must present his Interim Visa to his employer and only work until the end date of his Post Study Work Visa (open). If he continues to work even after the expiry of the Post Study Work Visa, whilst on an Interim Visa with Visitor conditions, that will result in a breach of visa condition and will become a “character issue” for all his future visa applications.

Access the full table of interim visa conditions here.

At the moment, temporary visas lodged onshore seem to be taking close to 2 months from the date of lodgement to be allocated to an officer for an assessment. Employers may not be open about leaving the position vacant for 2 months or more, which could result in you losing your job or job offer. We would therefore advise visa holders to act promptly and seek a further visa a few months before their current visa expires.

Validity of Interim Visa

Interim Visas, once issued, are valid from the day after the current temporary visa expires. If you hold, for example, a Work Visa until 20 March 2018, then your Interim Visa (if granted) will be effective from 21 March 2018.

Interim Visas are valid until the earlier of:

  1. the date the further temporary visa is granted, declined or withdrawn; or
  2. 6 months from the date the Interim Visa is granted.

If, for example, you are on an Interim Visa and your temporary visa application is declined on 21 March 2018, or you withdraw the application and Immigration New Zealand (“INZ”) acknowledges your withdrawal on 21 March 2018, then 21 March 2018 is the date your Interim Visa is valid to (visa end date).

Also, if you leave the country whilst on an Interim Visa, it ceases the moment you depart New Zealand. You will have to wait offshore until a decision is made on your temporary visa application.

When do you become unlawful?

According to the Immigration Act 2009, the expiry of a visa is the day after the visa end date[2] and a person becomes unlawful in the country on the day after their visa expires[3]. That means, if for example your Interim Visa was valid until 21 March 2018, then that Visa expires on 22 March 2018 and you will become unlawful on 23 March 2018.

Most applicants are not prepared to lodge yet another visa application one day after the decline decision or are ready to depart immediately to avoid becoming an overstayer. This has resulted in a significant increase in the number of applicants becoming overstayers, and an increase in the volume of Section 61 Visa Requests which has been an ongoing problem for INZ.

Word of advice to those who are planning to seek a further Temporary Visa – Do not wait until the last month before your visa is about to expire. Prevent yourself from becoming an Interim Visa holder if you can. Apply for a further Visa at least 2-3 months before your current temporary visa is due to expire. If you have time left on your temporary visa after the application is declined, you can have another crack at it without becoming unlawful in the country and being subject to deportation.

[1] Temporary visas include visitor, student, work, military and diplomatic, consular and official visas. Temporary visas do not include interim visa, limited visa and residence visas.

[2] Section 63(1)(a) of the Immigration Act 2009.

[3] Section 9(2)(b) of the Immigration Act 2009.

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Sexual Harassment in the Workplace – Plight of the Temporary Visa Holder

The global phenomenon that is the #MeToo and #TimesUp movements have highlighted the prevalence of sexual assault and harassment in the workplace. For what feels like the first time, victims were believed and not blamed. This empowered scores of women (and a few men) to come forward and share their harrowing stories of abuse and harassment. New Zealand was no exception. Of late, there have been multiple media reports of sexual harassment and assault in law firms[1] and even within the Human Rights Commission – a statutory body empowered to review sexual harassment complaints in New Zealand.[2] Most recently, journalist Alison Mau has “launched an investigation into sexual harassment in New Zealand workplaces”[3].

These developments prompted the New Zealand government to begin to collect data on sexual harassment.[4] Incredibly, at present the “Ministry of Business Innovation and Employment… collects data on harassment or bullying, but not on sexual harassment specifically.”[5] The New Zealand Law Society President, Kathryn Beck, has also intimated that it will set up a working group to review sexual harassment reporting mechanisms and ways this can be improved upon.[6] This comes on the heels of the harassment surveys launched by lawyer Elizabeth Hall[7] and the Criminal Bar Association of New Zealand[8].

The spotlight that has been placed on the issue of sexual assault and harassment in New Zealand within the upper echelons of our society is welcome. It highlights the fact that anyone in any occupation can be a victim of unwanted advances, sexual assault and harassment in the workplace. That said, it is concerning that the accounts and experiences of victims of sexual assault and harassment among the temporary migrant workforce in New Zealand is noticeably absent from this national conversation. And there may be a very good reason for this.

A temporary visa holder’s right to work in New Zealand depends on the conditions of their visa. A person who holds a job-specific visa, such as an Essential Skills Work Visa[9] or a Post Study (Employer Assisted) Work Visa[10], can only work for the employer who successfully supported their work visa application. This restriction exposes migrant workers to an unparalleled risk of exploitation because their right to work in New Zealand is dependent on remaining employed by a specific business or company. If the employment relationship ends for any reason, the temporary visa holder will lose their ability to work and earn a living in New Zealand, and they will usually be left with one of two very limited options: 1) find another job, or, 2) return to their home country. There is also the risk of deportation liability arising as a result of discontinuing employment with the offending employer.[11]

Fear of losing the right to work in New Zealand is a real disincentive for temporary migrant workers to report sexual assault and / or harassment in the workplace – especially if the perpetrator is the employer or a senior member of staff. This scheme entrenches the inherent power imbalance between the employer and temporary migrant worker and it puts many women (and some men) at high risk of harm. Compounding this is the absence of any provision under the current Immigration New Zealand Instructions for special work visas to be granted to victims of workplace sexual harassment. A similar policy vacuum affects victims of domestic violence whose partners are also the holders of temporary visas.

Whilst it has been encouraging to see tangible steps being taken to address the issue of sexual assault and harassment in the workplace, this movement for change will ring hollow if it fails to protect the most vulnerable amongst us. Time will tell if the changes that come about as a result of this watershed moment will offer meaningful protection to everyone who works in New Zealand, irrespective of their immigration status.

[1] Radio New Zealand, “Fresh allegations at law firm: ‘This should not be happening” <https://www.radionz.co.nz/news/national/351245/fresh-allegations-at-law-firm-this-should-not-be-happening>  (23 February 2018).

[2] Radio New Zealand, “Mishandling concerns spur review into Human Rights Commission” <https://www.radionz.co.nz/news/national/350953/mishandling-concerns-spur-review-into-human-rights-commission> (21 February 2018).

[3] Newshub, “Alison Mau launches #metoo NZ sexual harassment investigation” <http://www.newshub.co.nz/home/new-zealand/2018/02/alison-mau-launches-metoo-new-zealand-sexual-harassment-investigation.html> (1 March 2018).

[4] Radio New Zealand, “Govt to collect workplace sexual misconduct data” <https://www.radionz.co.nz/news/national/349719/govt-to-collect-workplace-sexual-misconduct-data> (5 February 2018).

[5] As above.

[6] New Zealand Law Society, “Law Society President explains new ‘working group’ on Breakfast TV” <http://www.lawsociety.org.nz/news-and-communications/latest-news/news/law-society-president-explains-new-working-group-on-breakfast-tv> (2 March 2018).

[7] Radio New Zealand, “Lawyer Elizabeth Hall initiates law firm harassment survey” <https://www.radionz.co.nz/national/programmes/morningreport/audio/2018632322/lawyer-elizabeth-hall-initiates-law-firm-harassment-survey> (16 February 2018).

[8] New Zealand Herald, “Criminal Bar Association to survey lawyers about harassment, bullying” <https://www.radionz.co.nz/national/programmes/morningreport/audio/2018632322/lawyer-elizabeth-hall-initiates-law-firm-harassment-survey> (22 February 2018).

[9] Immigration New Zealand Operational Manual, at Instruction WK4.5(a)(ii).

[10] Immigration New Zealand Operational Manual, at WD1(h) and W2.25(a)(ii).

[11] Immigration Act 2009, at section 157(5)(a).

 

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What’s on the Government’s Immigration Menu for 2018?

That’s really like asking what the weather will be like in Auckland tomorrow.  The new Labour-led coalition Government has only been in the chair for a few months, and the Minister himself has said little.  However, from a couple of sources I can suggest a few things that the Minister of Immigration and the Policy team could be focusing on this year.

Work Rights of International Students

Labour promised before the Election to cut net migration by 20-30,000.  The target of this drive is “long term” net migration – that is, people who stay for more than 12 months (which is not that long, really).  Because so many overseas students are coming in, putting the brakes on entry-and-stay is probably seen as an easy win.  Labour’s Manifesto on immigration policy proposes reducing the ability to get Student Visas, and rights to work (such as part-time employment while studying) for “low value courses” – although what that term means is not clear.

More critically, it promises to take away the open “job search” Work Visa option for lower-level qualifications, which probably means anything less than a degree or Level 7 course on the NZ Qualifications Framework.  This would have flow-on consequences for many, as it would make it harder for graduates to get job offers, that could in turn lead on to work qualifying for points in the Skilled Migrant Category Residence programme.

SMC Residence has already become more difficult to achieve owing to changes to the points system, including how past work experience is credited.  The numbers of applications going in were already going through the floor late last year – see our blog on this.  If the Government keeps turning off the tap, this could result in an overshoot which will not only reduce our ability to meet the New Zealand Residence Programme targets, but will only do harm to the large export education sector which keeps earning the country much-needed tax dollars.

Essential Skills Policy Review

A plan to adjust the settings on the major avenue for Work Visas, called Essential Skills, began with consultation in April 2017 and came into force in August.  It particularly hit those in jobs deemed to be “lower skilled”, either by the nature of the job or the salary paid.  The changes have been in place for 6 months.  Apparently the Minister has decided to leave in place the changes already made by the previous National administration.  However, “Phase 2” of National’s scheme has been shelved.  Instead, the new Government will zero in on:

  • the Labour Market Test which is used to work out if the job on offer can be filled by local people; and
  • the Accredited Employer Scheme, whereby businesses with accreditation are free to hire migrants at will.

They will apparently also look hard at how to better address labour shortages in the regions (i.e., outside Auckland!).

A strong motivator for this programme is likely to be the perception, again popping up in the Manifesto, that the Work Visa system is somehow being rorted by foreigners sneaking into lower-level jobs ahead of locals.  The classic example is retail and restaurant managers.  To characterise this as an abuse of the system is, however, somewhat simplistic.  First of all, for some time now Immigration staff themselves have been particularly tough on granting visas for these types of jobs.  It ain’t easy to get a visa to work as a carer in a rest home.  Secondly, employers keep telling us that local people don’t want to do the work.  If they did, then business owners wouldn’t put themselves through the grief of trying to support someone to succeed on a Work Visa application.

Family Residence

The Minister is seeking advice on the Parent, Partnership and Dependent Child policies.  As indicated in a recent blog by James Turner of this firm, the suspension of Parent Residence selections has created distress for families trying to get their older relatives to live with them.

Partnership Instructions have remained largely untouched for nearly 2 decades.  The test for what amounts to a “genuine and stable” relationship is tried and true, although sometimes difficult to meet.  Could a sea change be coming?  If it is, then it is likely to mean tougher rules, because a significant percentage of Residence Visas are issued to partners, and the policy is uncapped – that is, no ceiling on the numbers that can be approved.

Perhaps the Government will cap this policy.  Spouses and significant others might then wait for years to move up the pile to be invited to apply.  The social dislocation and disruption to families would not be pretty.  Or else a couple might have to prove they had lived together for a minimum of 12 months before the non-New Zealander could get a Work Visa.  At the moment, all we can do is speculate.

And What’s for Dessert?

Other things that the Minister has requested advice upon include:

  1. Combating migrant exploitation, particularly in the workplace.  While Immigration and the Labour Inspectorate have been given beefed-up powers to search shop floors and prosecute employers, they are under-resourced and seem to be selective about who they go for;
  2. Increasing the number of refugees accepted under the Quota programme to 1500.  While this would be laudable, and good PR for New Zealand internationally, certain minority players on the Coalition team might yet have something to say about it . . .;
  3. An avenue for accepting another class of refugee, who have so far hit a brick wall in getting recognition via the asylum and complementary protection system – victims of climate change from neighbouring countries such as Tuvalu.  Quite frankly, it’s about time we put our hand up to soften the humanitarian disaster which is only decades, if not years, away.

Whether any of these topics translate into action in the next 12 months remains to be seen.

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Kim Dotcom – Deportation or Extradition?

Correction: This article was published under an incorrect name before. The author is Simon Laurent.

Another strand in the Dotcom saga, that first surfaced in 2014, has just reappeared after an enquiry by the New Zealand Herald.  I was one of those approached for comment before the paper released its story yesterday.

As most people know, Dotcom is locked in proceedings instituted by the US authorities to extradite him to face charges for copyright infringement – or fraud, depending on what works to enable extradition to be valid in the New Zealand jurisdiction.  However, he was also found to have concealed past criminality when he applied for NZ Residence, not once, but twice.

This has opened the door for the Minister of Immigration to declare him liable for deportation under section 158 Immigration Act 2009 where, in the course of making his Residence application, “any relevant information was concealed”.  Criminal convictions are relevant.  In this case, he was caught for dangerous driving here in 2009, before he got Residence in 2010, and that could be his undoing.

In another report I was quoted as saying that Dotcom could get around this if he could show that he did not intend to deceive Immigration.  If I said that, then it was wrong.  The mere fact that the information was withheld is enough to invoke liability for deportation.

The problem is that if Kim Dotcom is deported then he would be required to return to Germany which is his country of nationality – or somewhere else that will take him.  This would very likely frustrate the aims of the US in seeking to extradite him – that is, haul him back into the States to stand trial.  If New Zealand was to trigger deportation then this could harm our diplomatic relations with the American administration. .

It is most likely for this reason that Immigration has sat so long on the case.  The decision to initiate the deportation process lies with the Minister, and apparently it has not yet been put formally before him.  Further delay, however, could create a problem with depriving Mr Dotcom of his Resident Visa.

Once someone becomes liable for deportation in this way, they have a right of appeal to the Immigration & Protection Tribunal.  An appellant can succeed if they show that they have “exceptional circumstances of a humanitarian nature that would make it unjust of unduly harsh” for them to be deported.  This has been described as a “stern test” expressed by “stringent statutory wording” (Minister of Immigration v Jooste).  Whether having Mega-dollars at your disposal is an exceptional circumstance is questionable.

However, the longer Dotcom remains in New Zealand, the more he may be able to amass reasons that would make it unjust or unduly harsh to deport him.  He has already resided here for most of this decade.  He has settled, no doubt made connections of a business and personal nature.  He has married a New Zealander.  His children have spent years growing up here.  It may not be a foregone conclusion that an appeal would fail.

In my view, there are valid reasons for Immigration to sit on its hands for the time being.  Apart from political and diplomatic damage, taking action now would undo years of effort put into the extradition proceedings.  And deportation will remain a valid option for some years yet, even if extradition falls over.  But deferring the matter for too long could erode Immigration New Zealand’s ability to make deportation liability stick.

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Problems following the closure of the Parent category, solutions are sometimes found

With the suspension of the Parent category of New Zealand Residence in October 2016, a problem has arisen for many. Since then, we have been asked to assist in a number of situations, to find a way for an elderly parent to remain in New Zealand with their adult children.

We have helped in a number of interesting situations, with outcomes as described below.

  1. Elderly parent brought to New Zealand as a Visitor prior to the closure of the Parent category in October 2016, but unable to apply under that category due to its closure, and unable to return to their home country due to their age and condition. They became unlawful in New Zealand after their Visitor Visa expired.  A Humanitarian appeal to the Immigration and Protection Tribunal against deportation liability was successful, and Residence was granted.
  2. Elderly parent brought to New Zealand as a Visitor before the Parent category closed.  A Parent category Expression of Interest (“EOI”) was made, and an Invitation to Apply for Residence was issued.  However, the Residence application could not be filed within the required timeframe.  Then the selection of EOIs under the Parent Category was closed so that a new Residence application was no longer possible.  They became unlawfully in New Zealand when their Visitor Visa expired.  Unfortunately, a section 61 request for Residence was unsuccessful.
  3. Elderly parent brought to New Zealand as a Visitor after husband passed away in the home country, just before the Parent category was suspended in October 2016. Due to a decline in health, they were unable to return to their home country and became unlawful in New Zealand when their Visitor Visa expired.  A request for a Visa was made to the Minister of Immigration (under the previous National Government).  The Associate Minister of Immigration granted a 3 year Visitor Visa, subject to usual health and character requirements being met.
  4. An application under the Parent Category for an elderly parent was made prior to the closure of the category, and the family brought them to New Zealand as a Visitor while the application was in processing.  The application was placed in a queue and further processing was not expected until late 2018 or early 2019.  In the meantime, they had already stayed as a Visitor for the maximum allowed period of 9 months in the last 18 months.  We made an application for a further Visitor Visa as an exception to instructions, and a 6 month Visitor Visa was granted to allow them to wait out a decision on their Residence without having to make the long flight home.

These situations all involved slightly different solutions to the problem presented.  They show that where some creative lawyering is applied, success in difficult situations can be achieved.  Each case is dependent on its own facts.  It is critical to draw out the most compelling aspects, not only of the parent’s own situation, but also of their family both in New Zealand and overseas.  And we can’t necessarily win them all.

As at January 2018, the selection of Parent category EOIs remains on hold.  Just before the Election, the Labour Party representative at the Annual Conference of NZAMI indicated that they would, if elected, look afresh at when it might be reopened.  We expect nothing more on this front until after the new Immigration Ministers have come to grips with their new portfolios.

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We sign off until next year!

It has been a great year for Laurent Law and clients. We exceeded the targets that we set for ourselves and our clients. The ever changing world we live in allowed us to live, learn and change. We came out wiser, happier and more fulfilled on the other side. We embraced the challenges and turned them into victories.

We managed to save the day for a number of clients and we featured in some great success stories during the year. We are at out happiest when our clients are satisfied and we have exceeded their wildest expectations.

The team at Laurent Law would like to wish our clients, prospective clients, business networks and associates a merry Christmas and a happy new year. Although we may not all have the same take on this season we share some common ideas about family and quality time with the ones we love. We all deserve this time of rest and reflection.

Our last day of business will be Friday, 22 December 2017 and the office will reopen at 9:00am on Monday, 8 January 2018. We would love to catch up in the new year and look forward to a fresh approach to new challenges with better outcomes.

See you in 2018!

Christmas

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