Parent Visas – Hurry Up and Wait

Since mid-2018 the Government has made noises about reopening the Parent Residence category from time to time.  The Minister of Immigration at the NZAMI Conference in August 2018 said that his people would be looking at it soon.  Then Immigration New Zealand indicated that an announcement about it would be made “in the first half of 2019”. Just a few days ago, the Minister said that a decision on the policy would be made before the end of his current term in office – that could push it out to late 2020.

Now, at Laurent Law we get to hear about some things before they make the mainstream news, but I have to say that there is not much good news yet.

A Cause for Shame?

From time to time, the media carries accounts of public indignation that Immigration has suspended the policy.  Unfortunately, this has also recently been tied to the generous offer to grant Residence to family members of victims of the Christchurch mosque shootings in March.  In my view the factors influencing the two issues are quite distinct, and the numbers of people affected are very different.

However, the failure to do anything decisive about the Parent route is becoming inexcusable.  Thousands of families have lodged Expressions of Interest for selection over the years – and paid a fee for the privilege.  Since October 2016, none of those EOIs can be selected in order to issue an Invitation to Apply.  However, people can still file EOIs without hindrance.  There is a certain dishonesty in this.  If the intention is, and has been, to keep the category closed indefinitely, there comes a point where Immigration should refuse to accept further EOIs (and thereby clip the ticket along the way).  Alternatively, it should be possible to get a prompt refund on request – at the moment, this is apparently only “under consideration”.  As things stand, visa fee refunds are discretionary and are only available in exceptional circumstances.

I have heard second-hand that Immigration is thinking about closing off the Tier 2 Parent category altogether and giving refunds out.  The Tier 1 category could be reopened with a new set of criteria – those who have a Tier 1 EOI in already but who don’t meet the new rules will be refunded as well (thanks to June Ranson for this intel).  We may not get anything official about this until July, so at the moment it is little better than a rumour.

Possible Solutions

There were several reasons, both official and unofficial, why the policy was suspended.  One was that sponsors did not keep to the undertakings they signed to support their parents for the first 10 years after they arrived in New Zealand.  As a result, the cost fell upon the taxpayer.  Another was that, after the parents had been settled in New Zealand, the children would go to live elsewhere, such as Australia, and leave their parents stranded here with no connections, often very little English, and perhaps languishing in a rest home. A senior Immigration official has disclosed that there is little actual evidence of such abuses, yet the Parent Category remains closed.

I, for one, have never heard of a case in which Immigration attempted to require the sponsor to fulfil their obligations.  For example, meeting those undertakings is a condition of the parent’s Residence Visa.  This means that the parent could be made liable for deportation if their child abandons them.  That’s pretty harsh, but the risk of the parent being thrown out of New Zealand should be a wake-up call to a negligent child.

Another issue has of course been the inevitable cost to the health and care systems of providing for parents as they age.  Australia has recently rolled out a scheme under which parents can apply for visas for a certain term.  This is for temporary visas, and not Residence as such.  While some aspects of the policy may not be palatable, one feature of interest is that applicants must hold suitable health insurance in order to get visas.

The accepted wisdom has been that New Zealand should not create second-class Residents by, for instance, imposing a duty on some of them to pay for their own healthcare.  Once you’re a Resident, you become entitled to all public services just like other Residents and Citizens.  This ignores the fact that we already have sub-classes of Residents for certain periods.  For example, Investors must maintain their funds in New Zealand assets for 3 or 4 years.  Perhaps there is room for making comprehensive health insurance a condition of a Parent Resident visa for, say, 10 years, in order to spread the cost of their health needs.

This is a far from perfect answer.  It could be objected that the greatest demand for health services arises as a person ages, so that a fixed-term insurance does not address the root problem.  What about urgent medical care – will a hospital refuse to admit an accident victim until they’ve seen proof of their insurance?  Thirdly, Residents whose visa conditions have not expired cannot apply for Citizenship – although the same limitation already applies to those who have already got Residence under a 10-year sponsorship condition.

The point is that, while allowing parents to remain in New Zealand for the rest of their lives will cost this country money and resources, there are ways to mitigate that cost.  The other intangible cost that our society already pays is the dislocation of families for years and decades, and the uncertainty of children whose hopes of caring for their parents in this new home have been put on ice.

Where does that factor in the upcoming Wellbeing Budget?

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Why Move to New Zealand?

Being a foreigner in New Zealand affords me the opportunity to see Kiwis from a different perspective. I arrived in this beautiful country 8 years ago and feel like I have lived a lifetime since. I have come to appreciate the beauty of this little paradise at the bottom end of the world. I love the people and the way of life.

As an African by birth and a New Zealander by grant I can highly recommend the lifestyle. Kiwis are down to earth people with good hearts. Their lingo is unique and sometimes a bit strange. This is what makes them special. They say it like it is. I like that. I always know where I stand with them. Kiwis like to strike up a conversation. I have met countless people while tramping, cycling and traveling across the country who want to engage in the friendliest of ways. They talk about the weather a lot because in New Zealand it changes from moment to moment and a sunny day gets the appreciation it deserves. Kiwis look out for others. They are keen to warn about danger situations like slips and black ice and other natural phenomena. Complete strangers look out for the wellbeing of others. I have always felt welcome here.

The beauty that I have seen and experienced can almost not be described in words. I travelled extensively throughout the North and South Island. I really should write a book about the experiences. There are so many memorable moments and certainly too many to mention. A few stand out among them as being exceptionally special.

The South Island is probably my favourite for my own personal reasons. The North Island definitely has a beauty of its own. Aotearoa (The Long White Cloud) is a truly magical place. I am still getting to terms with the pronunciation of some of the names. Whangamomona. Whakatane. Te Anau. Kaikoura.

Aoraki/Mount Cook took my breath away. I could see the weather change in a matter of minutes on the highest slopes. I watched as a thick band of cloud moved over the mountain covering it in a blanket of unsettled turmoil. The noise of the approaching storm made me feel small and insignificant. The howling made me fear and love the experience at the same time. I almost felt like it wasn’t real.

Punakaiki Pancake Rocks looked more like a scene from a science fiction movie than an authentic landscape on the west coast of the South Island. The blowholes sounded eerie. My first awareness upon hearing it was that I could finally hear the voice of the ocean. I was fascinated to try and understand how the rocks came to look like they do.

I have always wanted to travel through space. As a young girl I wanted to become an astronaut and dreamed of seeing the stars, planets and suns in splendid colour. I once again found myself struggling to believe that the thousands of glow worms against the cave walls at Te Anau were real. With no light or noise inside the cave I felt like I was floating through space and looking at those stars that I dreamed of as a child. I felt alone in that instant but so at peace. It was exciting to travel to the cave deeper into the sound via ferry. We left civilisation behind for a short while to get to that remote spot. I was a true explorer.

Queenstown is a bit of a tourist mecca these days but is remains one of my favourite spots. Lake Wakatipu is huge and embraces the town in its belly with open arms. The view from the top of Bob’s Peak is breathless in beauty. The gondola ride up to the peak is no less exhilarating but was a challenge for someone like me who has a serious fear of heights. It was worth the anxiety in the end.

Another favourite of mine is the hills around Taumarunui in the King Country. I spend a lot of time there. I never really want to leave the place. The beautiful green and tranquillity of the surroundings combine for the best stress reliever in the world. I feel at home there. The charm of this little goldmine is unequalled in my mind.

I have only touched the tip of the iceberg. It is almost disappointing to have to stop writing. New Zealand is unlike any other place on earth. It is unique and mesmerising in its presentation. To live here is a truly remarkable gift. I wouldn’t want to be anywhere else.

Posted in Business, Citizenship, Immigration Industry, Immigration Visas | 4 Comments

NZ Electronic Travel Authority needed from October

travel

At present, citizens of 60 Visa Waiver countries do not have to apply for a Visa to travel to New Zealand. Citizens of Visa Waiver countries can travel to New Zealand without applying for a Visa first.  In most cases they get a 3 month Visitor Visa on arrival.

The list of Visa Waiver countries includes the United States, United Kingdom, Japan, Germany, Singapore, Denmark, France and Malaysia. Visa Waiver countries tend to be countries that New Zealand has a relationship with, and their travellers are considered to pose a low security risk.

Later this year, all air and cruise travellers from the 60 Visa Waiver countries will be required to hold an Electronic Travel Authority (ETA) before travelling to New Zealand.

I previously blogged in October 2018 about the new ETA. On 25 February 2019, the Government confirmed details of the ETA, and that it will come into force on 1 October 2019.

According to Immigration New Zealand, the ETA aims to:

  • Enhance security and reduce immigration risks;
  • Address smuggling and biosecurity risks;
  • Improve the traveller experience;
  • Support New Zealand’s international relationships and agreements;
  • Adapt to the changing needs and requirements of the government, stakeholders and travellers over time.

A recent Cabinet paper indicates that the Electronic Travel Authority will ensure a faster and better experience (including not being turned around at check-in or at the border), while at the same time claiming that it will deliver more secure borders.

The ETA will last for 2 years, and costs NZD$9 for requests made through a mobile application device and NZD$12 for requests made through a web browser.

In addition, all airline crew and cruise line crew will need to hold an ETA before travelling to New Zealand. A crew ETA will last for up to 5 years and cost NZD$9.

New Zealand citizens and holders of New Zealand Residence and Temporary class Visas will continue to be able to enter New Zealand without an ETA. Australian citizens will be exempt from the need to hold one, but Australian Permanent Residents will need to hold an ETA.

At the same time that travellers apply for the ETA, they will need to pay the new International Visitor Conservation and Tourism levy. The purpose of this levy is to ensure international visitor contribute to the infrastructure they use and to help protect the natural environment they enjoy. The levy will be $35 and once paid will last as long as the ETA is valid.

Both the new ETA and the International Visitor Conversation and Tourism Levy likely represent a more cautious approach being taken by Government in relation to travellers arriving in New Zealand.  They do, however, mirror a worldwide trend toward this form of registration system.  The US has required all short-term visitors to apply online for an ESTA for some years.  This week, the EU announced that all those entering European Schengen Area countries will have to obtain a European Travel Information and Authorization System (ETIAS) from 2021. 

All of this shows the desire by countries to clearly document the movement of people across borders, in a climate of fears about illegal migration, sophisticated use of false identities for crime, and terrorism.  This is the way the world is going.  We’re just catching up.

 

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Another Hurdle: Section 49(1) Conditions

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All Residence Visas, when first granted, are subject to 2-year travel conditions. This allows the Visa holder to travel in and out of New Zealand for 2 years and to demonstrate to Immigration New Zealand (“INZ”) that they have made a commitment to New Zealand in order to qualify for a Permanent Resident Visa (“PRV”). For further detail on commitments to New Zealand, refer to Dew’s blog here.

Depending on the type of Residence Visa, it may also state:

“This visa is subject to conditions imposed under s 49 of the Immigration Act 2009

If your Residence Visa label states the above, then your Residence Visa is subject to “s 49(1) conditions” which you must comply with. This blog will explore the different types of s 49(1) conditions that are attached to a selection of Residence Visas.

Types of Conditions

Skilled Migrant Residence Visa

Depending on the type of EOI points claimed, the Principal Applicant (“PA”) of the Residence Application may be granted a Residence Visa that is subject to s 49(1) conditions.

If the PA gained Residence based on an offer of skilled employment or current skilled employment of less than 3 months for which they have claimed bonus points for it being outside the Auckland region, the Residence Visa will be subject to conditions. The conditions differ depending on whether it was an offer of current skilled employment of less than 3 months, and whether the bonus points were awarded or not by INZ.  For example, if someone got bonus points for a job offer outside Auckland, they must remain in that job for at least 12 months, or in another job for which bonus points apply.

If the PA gained Residence because they are eligible for occupational registration, the visa is subject to the condition that they provide evidence from the New Zealand Medical or Dental Council that they successfully attended an interview with the Council within 1 month of their arrival in New Zealand.

Employees of Relocating Business Residence Visa

All Residence Visas granted under this Category are subject to s 49(1) conditions. The PA must be employed in the relocated business for 24 months from the relocation of the business.  In addition, if their job requires them to ensure that the business complies with NZ employment and immigration laws, they must demonstrate that the business has done so.

Entrepreneur Residence Visa

If the PA was granted an Entrepreneur Residence Visa after operating a business for 6 months, making a capital investment of $500,000 in their business and creating 3 full-time jobs for New Zealanders, their Visa will be subject to s 49(1) conditions.  

To comply, the PA must be self-employed in their business, retain the investment and maintain the created full-time jobs for a minimum of 2 years (including the time spent operating the business on an Entrepreneur Work Visa).

Migrant Investor Residence Visas (Investor 1 and 2)

All Residence Visas granted under Investor 1 and 2 Categories are subject to s 49(1) conditions.

The s 49(1) conditions differ depending on the Investor Category, in particular, the investment period and minimum period of time in New Zealand. If a Residence Visa was granted under Investor 2 Category, an additional condition applies depending on the points claimed for English language ability. The PA is also required to submit evidence of having retained the investment to INZ on 2 occasions – (i) within 3 months of the 2 year investment period; and (ii) within 3 months after the expiry date of the investment period.

Another requirement to note for Investor Visas is that, because the investment period goes beyond 2 years (3 years for Investor 1, and 4 years for Investor 2), the 2 year travel conditions on the Residence Visa will expire at the 2-year anniversary of the investment period. The PA should therefore seek a Variation of Travel Conditions on their Residence Visa for a further 2 years if they wish to travel outside New Zealand. To be granted further travel conditions, the PA must also have complied with s 49(1) conditions to date.

Parent Retirement Residence Visas

All Residence Visas granted under this Category are subject to s 49(1) conditions. The PA is required to ensure that the investments are retained in New Zealand for 4 years; and they are required to inform INZ of any changes to their New Zealand address during the investment period. The PA is also required to submit evidence on two different occasions – once within 3 months of the 2-year investment period and once within 3 months after the expiry date of the investment period.

Further Conditions

In addition to the conditions set out above, the PA under any Residence category must ensure that they inform the nearest branch of INZ if their New Zealand address changes during the period they are subject to the s 49(1) conditions.

It is also worthy of note that if Secondary Applicants (i.e. partner and/or dependent children) (“SA”) were included in the Residence Application, and the Residence Visas were later granted, SAs will also be subject to s 49(1) conditions that apply to the PA. Only the PA must comply with s 49(1) conditions and have them removed in order for the SAs to become eligible to seek PRVs.

Once the conditions have been met, the PA must seek removal/cancellation of s 49(1) conditions, by giving INZ the necessary evidence in a timely fashion. The timing for filing this request may differ for different types of Residence Visas, so it is also important to know when they must be submitted.  Usually this is spelt out in the original INZ letter approving Residence, but it may be wise – especially in complicated situations like the Investor category – to get professional advice.

What happens if the conditions are not met?

If the PA fails to comply with s 49(1) conditions, they will become liable for deportation pursuant to section 159 of the Immigration Act 2009. There is a right of appeal to the Immigration & Protection Tribunal, firstly if you believe that INZ has wrongly decided that you have breached Residence conditions.  In addition, you may be able to show “special circumstances” to justify an exception to the Residence Instructions.

Furthermore, the PA will not be able to seek a PRV as PRVs are not granted to a person whose Residence Visa is subject to s 49(1) conditions. The same applies to SAs.

If you require assistance in getting s 49(1) conditions removed from your Residence Visa, come and talk to one of our lawyers today for assistance.

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Work Visas on the Move (Again)

Just before Christmas (possibly strategic timing in light of criticism he faced in the last few months) the Minister of Immigration announced a scheme to overhaul the entire employer assisted Work Visa system.  The proposals are set out in a detailed Consultation Paper, and I am currently involved with a couple of industry groups which plan to make submissions on this by mid-March.  Apparently the aim is to roll out the final form of the policy in the middle of 2020, which is – what a surprise – just before the next Election.

The New Model

A central feature is that all employers wishing to hire migrants must get one of three types of accreditation.  The category already exists as a subset of Work Visa policy, and is described in one of our fact sheets.  Under the current settings, employers must show that they:

  • are in a sound financial position;
  • have robust HR policies to safeguard employees;
  • have a clean employment relations record (for instance, no adverse claims against them before the Employment Relations Authority); and
  • are actively committed to employing and training New Zealand workers.

Whether accreditation under the new policy will look much different is not clear, although it is likely to carry over many of the above requirements into a new scheme.

Once accredited, employers can support applications for visas relatively easily.  This might give greater certainty to employers who get it.  There are, however, a couple of immediate risks with this idea:

  • Businesses wanting to hire only 1 or 2 people will face a disproportionate load of paperwork.  From our experience, seeking accreditation is a serious exercise.  The standards currently applied to accreditation set a high bar for employers in terms of HR policies and the expectation that they will continue to actively recruit and train New Zealanders.
  • Accreditation must apparently be renewed every 12 months.  There could be real problems for employers if Immigration is slow to decide applications for renewal, because if the existing certificate lapses before a new one is issued, the migrant staff have to stop working.  Just a couple of years ago the whole accreditation scheme was almost dysfunctional, until the duration of the grant was increased from 1 to 2 years in 2017.

A class of premium accreditation will be available, requiring an employer to demonstrate “pastoral care, active engagement in workforce programmes and endorsement by third parties [i.e., unions].”  The successful business can renew for 2 years at a time.  Again, though, this does not compare favourably with the present settings which allow existing accredited employers who appear to be reliable in the long run to extend their certification for 5 years at a time.

Another new element is the concept of “sector agreements” with particular industries for hiring in lower-skilled occupations.  Business groups such as the EMA and Restaurant Association will need to invest even more in research and professional lobbying to secure an agreement benefiting their membership.  The consultation paper suggests:

It is proposed that negotiations begin with the residential aged care sector and the tourism and hospitality sector in mid-2019 with the expectation that the agreements could come into effect by early 2020.

Winning the War on Exploitation?

Underpinning these and other ideas floated in the plan are the Government’s stated commitment to raise wages and to combat exploitation of migrant labour.  The latter issue has received some additional attention and funding in the last couple of years, but recently the news has been full of stories suggesting that it continues unchecked.  A new study gives some empirical backbone to the stories.  Nor is it limited to fly-by-night employers in back streets – major construction firms are also being accused of breaching employment standards on a large scale.

Vetting employers more stringently for employer-specific Work Visas is not necessarily going to curb exploitation.  Instead, it is going to shift it underground.  The reason is that in late 2018 the rules for Post-Study Work Visas were relaxed to allow graduates to more easily get open visas (that is, they can work anywhere, for anyone).  If accreditation makes it too hard for small businesses in particular to hire overseas staff, they will simply turn to the migrant student population whom they can engage on whatever terms they can achieve.

“Kiwis First” Again

An interesting feature of the proposal is the claim that part of the problem which it is meant to solve is the displacement of New Zealanders from employment.  In support, the paper cites an MBIE report updated in 2018.  The odd thing is that, overall, the researchers conclude that there are:

no significant indications of migrants crowding out New Zealanders for jobs, and, in particular, no overall effects on employment in the same industry (direct effects) or in other industries (combined effects) . . .

Indeed, elsewhere they declare that migration has had positive effects on wages, and the hiring of youth and beneficiaries in urban areas.  True, the report goes on to note negative effects on the hiring of New Zealanders through the current Essential Skills policy (the main employer-assisted route at present).  However, given that the employer-assisted categories only account for under 50,000 of the 230,000 or so Work Visas granted in the year to June 2018, and that the authors of the report could not be definitive about the reason for their findings, it is questionable whether this complete revamp of the policy can be justified for this reason either.

Finally, the Government wants to tune the migrant labour supply to match the needs of the regions.  No doubt there is merit in this, but any such system should also recognise that median wages differ widely across the country.  Employers should not be forced to pay Auckland prices for a worker in Southland.

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Decreases in skilled migrants, increases in temporary workers

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A Radio New Zealand article recently reported that “National blames ‘the dark hand of NZ first’ for sharp drop in skilled immigrants”. It states that overall new resident numbers fell from 47684 to 37948 in the last financial year and that almost three quarters of the changes was down to a decrease in skilled immigrants.

Immigration New Zealand publishes immigration statistics on their website, www.immigration.govt.nz so the numbers being quoted in the Radio New Zealand article can be looked up. It does appear according to these statistics that the total number of Residence Visa approvals, across all categories, fell from 47684 in the 2016/17 financial year, to 37948 in the 2017/18 financial year.

The INZ financial year begins in July.  In the 6 months to 31 December 2018, the total number of Residence Visa approvals is 17716. It may be that the total Residence Visa approvals through to June 2019 represents a further downward trend.

These numbers quoted are across all Residence categories. The numbers for Skilled Migrant category Residence Visa approvals are

  • 24140 in 2016/17;
  • 17085 in 2017/18; and
  • 5930 in the period July – December 2018.

It does appear that the slump in the approval of Skilled Migrant category Residence Visas is a significant portion of the fall in total Residence Visa approvals.

The total number of Temporary Work Visas on the other hand, has increased from 226,321 in 2016/17 to 230,259 in 2017/18.

It may seem strange that the total number of Temporary Work Visas granted is going up while the total number of Residence Visas and Skilled Migrant category Residence Visas is dropping. This signals an increase in temporary workers of varying skill, but a decrease in those able to apply for Residence under the Skilled Migrant category.

The categories of Temporary Work Visa whose numbers have increased in the 2016 – 2018 period are:

  • Essential Skills (this forms the largest proportionate increase), from 32292 to 38101
  • Approved in principle
  • Asylum seeker
  • Belgium working holiday scheme
  • Canada working holiday scheme
  • China special work
  • Crew of foreign fishing vessel
  • Partner of a student
  • Partner of a worker
  • Post-study employer assisted
  • Recognised seasonal employer
  • Silver fern job search
  • Talent (accredited employer)
  • Variation of conditions

The increase in temporary workers but reduction in Skilled Migrant numbers may be the flow on effect of changes to the Skilled Migrant category in October 2016, raising the minimum number of points required to achieve Residence from 100 to 160. See here.

Further changes by the National Government also came into effect in August 2017, introducing a remuneration threshold for employment which Skilled Migrant category applications are made with. See here. At the same time, the National Government introduced remuneration requirements for Essential Skills Work Visas. See here.

Following the 2017 Election, in January 2018 changes made by the Labour-led Government were introduced, which raised the remuneration threshold for employment relied upon for Skilled Migrant category applications. Remuneration requirements for Essential Skills Work Visas were also increased. See here. And in November 2018 the Skilled Migrant remuneration threshold went up again. Remuneration requirements for Essential Skills Work Visas were also further increased. We recently published a summary of the cumulative effect of these increases.

The significant upward ratcheting of minimum salary levels has no doubt been an influential factor in the drop in Skilled Migrant Residence Visa approvals. Both the National and Labour-led Governments have also raised the salary requirements for the approval of Essential Skills Work Visas, but the lower salary bands are somewhat less than the Skilled Migrant threshold.

The Radio New Zealand article quotes National Immigration spokesperson Michael Woodhouse and Immigration Minister under the previous National Government as saying,

so we have this almost perverse trend at the moment where we’re getting very high numbers and increasing numbers of lower skilled workers coming in on temporary visas but lower numbers of higher skilled workers gaining residence. That’s a significant drop at a time when our economy most needs skilled migrants. I have no doubt that the dark hand of New Zealand First in the background is influencing that trend.

Immigration Minister Iain Lees-Galloway was quoted in the Radio New Zealand article as saying he was considering ways of lifting the numbers and denied the decrease in numbers was down to government policy or New Zealand First influence.

It is something I’m looking at, whether we can do a better job of targeting skilled migrants and providing opportunities for them to achieve residency. At the moment I don’t think the residence programme is sufficiently well targeted. Michael Woodhouse need look in only one direction regarding residency numbers and that is in the mirror. He is speculating an relying on anecdotes, there’s absolutely no truth to what he is saying, what we are seeing is the flow-on effect of changes that he made when he was the Minister.

Immigration New Zealand said that the fall in skilled immigration was expected, and was down to the policy changes made in 2016 and 2017, raising the threshold to qualify for residence and the introduction of remuneration criteria.

As the writer of this blog is indicating, changes making it more difficult for Residence to be granted under the Skilled Migrant category have been introduced by both the previous National and the new Labour-led coalition Government. It would be of much benefit if politicians, rather than attempting to blame each other, took responsibility and ownership of each of their policies which in some ways are very similar. In fact, in a blog post just after the Election it was pointed out that Labour essentially inherited the policies already put in place by the previous administration.

The current Minister says he is looking at ways to better target skilled migrants and provide them with opportunities to achieve Residence. The question this writer must ask is, how long is this going to take? It has now been more than a year since the September 2017 election, and the only changes introduced to the Skilled Migrant category by the Labour-led Coalition are those identified by the writer in this blog.

If Skilled Migrant Residence Visa approval numbers continue to fall but Temporary Work Visa approvals continue to rise, this may be seen as a more transient situation for those interested in New Zealand as a migration destination. More will be “in limbo” on a Temporary Visa, but unable to achieve the certainty associated with Residence status. This would appear to run counter to the current Minister’s expressed concerns regarding migrant exploitation (see for example, here).

Politicians react to public opinion and it is the case that immigration was a hot topic in the lead-up to the Election, so this may have influenced some of the changes identified above. But it may be a perverse outcome, bad for New Zealand’s reputation and its access to international talent, meaning politicians may need to make their positions clearer and implement their intended changes with more speed.

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Rowdy Tourists Facing Deportation

I was interviewed yesterday by Newshub about the Irish visitors who are at the centre of a media storm owing to their antics from Auckland to Hamilton.  They have been served Deportation Liability Notices (“DLN”s) and are apparently planning to leave.  The Irish community in New Zealand has distanced itself from them, and it may be that they are part of the distinct “Traveller” ethnic group who have settled in England.

The group is here on tourist visas.  A DLN can be issued against temporary visa holders under section 157 of the Immigration Act for a number of reasons.  The ground that has probably been applied to most of them is a generic provision, “other matters relating to character”.  That is, even if they have not been charged with an offence, this provision can be used if the Minister of Immigration sees “sufficient reason” to deport them.

Someone served with a DLN in this way has 14 days to put forward reasons why they should not be deported, and 28 days to appeal to the Immigration & Protection Tribunal.  If they use up their appeal rights, or don’t exercise them, then eventually Immigration has the right to serve them with Deportation Orders; and even if Orders are not served and they eventually leave on their own, they are banned from applying for a visa to enter New Zealand for 5 years.

However, it doesn’t appear that the group is going to fight it.  They now say that they plan to leave the country by the end of the week.  If they do this voluntarily, then technically they will not have been deported.  This is important, because if they apply to enter other countries they can legitimately answer “No” when asked the standard question “Have you ever been deported from any country?”  Still, this incident will no doubt make it impossible for them to get visas to Australia, the US and Canada for quite a while, because New Zealand shares visa information with those countries (and the UK) under the Five Country Conference accord.

Furthermore, the 5-year ban on getting visas for New Zealand later will not apply to them if they leave quickly.  It’s hard to see, though, how they would ever get back in here after the furore that has blown up around them.  Immigration New Zealand has no doubt already posted Alerts against their visa records to warn that they should not be permitted to re-enter for several years.

At least one of them has in fact been charged with an offence.  In that case they could additionally be liable for deportation for “criminal offending” even if no conviction is entered against them.  That person would normally be required to remain in the country to face the charges and to be sentenced if found Guilty.  What is also likely is that Immigration and the Police agree to let the charges drop so that they can put the offender on a plane out of the country.

If you want to know more about how deportation works, visit other postings from our blog, including one by Dew James of our office.

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