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

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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SUCCESS STORY: IT Call Centre Staff Win Residence Appeals

In a series of decisions published in the last month or so, a large group of our clients had their declined Skilled Migrant Residence applications turned around by the Immigration & Protection Tribunal (IPT).  This is already producing a ripple effect for others in IT customer support roles around the country.

The Situation

Our people all worked for the same large call centre which has multiple offices in New Zealand.  Their Skilled Migrant applications required them to get points for “skilled employment” as an ICT Customer Support Officer (code 313112 in the ANZSCO).  For the 3 years to the end of 2016, Immigration New Zealand (INZ) had granted Residence to over 115 employees of the same company in the same role.

Then something changed.  We believe that Immigration did a double-take when someone (perhaps a disgruntled failed job applicant) asked just how many people had been approved in this way.  As a result, from April 2017 onwards INZ started churning out the declines.  They were long letters, and they were all the same – so much the same that we were able to file a single Appeal submission for 15 people.

The Knock-Down

We fired a barrage of criticisms at INZ’s approach to these cases.  Not all of them stuck, but we scored a number of hits.  For example, it was claimed that the Appellants’ use of a Knowledge Base (KB) meant that they were limited to pulling answers out of the database.  Of course, almost any customer support role nowadays relies on its people leveraging institutional knowledge gathered in a KB.  The Appellants provided support for one of the world’s largest and most extensive IT hardware and software providers.  Navigating its KB, which is constantly updated, is no walk in the park.  The IPT said:

it was still necessary for the appellant to utilise his own skill and expertise to identify the issue, locate relevant solutions in the [KB], and to understand and apply such solutions.

Next, employees were not permitted to have remote access to users’ devices, so they had to talk customers through the necessary fixes.  INZ claimed that they were “merely guiding” the user, so they were not exercising their own IT skills.  Anyone who has tried to explain how to fix a computer problem to someone else will tell you that it’s much easier to just get in and ‘do it yourself’.  You not only have to know where to go and which options to click; you also have to be able to describe this simply and clearly, so the other person won’t get lost.  More critically, the very description of the ICT Customer Support Officer is that she “provides support, education and guidance“, something to which INZ had become completely blind.

The ANZSCO description states that someone doing ICT Customer Support should have a diploma or at least 3 years’ prior experience.  The fact is that most of the Appellants had degree-level or higher qualifications.  The employer did not require applicants for the job to have either, and INZ said this also meant that the job itself was not sufficiently skilled.  The IPT pointed out, though, that ANZSCO itself contemplates that people will acquire the necessary skills over time, and “the entry criteria for a role is not determinative of the skill level of those undertaking the role.”

Finally and fundamentally, INZ concluded that each of the Core Tasks associated with ICT Customer Support did not require a level of skill equivalent to a diploma or 3 years’ prior experience.  Why was this wrong?  In order to work out if someone had “skilled employment”, two separate questions apply:

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

INZ had applied the second ‘quals/experience’ criteria to the first “substantial match” assessment.  In the words of the IPT:

. . . it imported a skill level requirement into its substantial match enquiry, which it was not entitled to do.

So What Now?

INZ had developed what it saw as a slam-dunk solution, to knock out perhaps hundreds of Residence applications.  Maybe management saw this as a way to deliver a reduction in the record long-term migration numbers, for which the previous Government was being criticised in the run-up to the Election.  The IPT’s comprehensive treatment of this ‘policy’ appears to have stopped this in its tracks.  Certainly, so far INZ has not tried to appeal any of our decisions to the High Court.

We have heard from more than one source that people at several other support centres ran into the same problems in the last few months.  We have also just heard that, in at least one case, someone else has won their appeal on the same grounds.  It is cheering to think that our work is likely to deliver rewards well beyond the wins for our own clients.

There has been a lot of fallout from this process.  INZ has declined some people’s Work Visa applications in the meantime, for the same reasons, so that they have now lost their jobs.

INZ has been ordered to reassess every one of our cases.  At the time of writing, we have not had feedback from INZ about the Residence reassessments.  This story may not be over, and they might try to find other ways to defeat the applications.

However, we have learned something about the dynamics of this industry, and you may know someone in the same situation who needs help.  Get them to talk to us.

Posted in Business, Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas, Politics, Practice of Law | Tagged , , , , , | 3 Comments

“Kiwis First” – Labour Inherits Immigration Policy

In a June posting I predicted that the Labour Party’s promises to slash the numbers of migrants to New Zealand had already been trumped (excuse the expression) by policy changes introduced under the National-led Government.  That appears to have come true.

NZ Residence Programme

Radio New Zealand article from the end of October disclosed that the number of applications lodged for Skilled Migrant Residence in April – September 2017 were nearly 50% less than for the same period in 2016.  It suggested that if the trend continued, overall Residence approvals would be likely to fall to about 29,000 for the current financial year (to June 2018).  This would far exceed the sort of cut Labour originally suggested it would like to see in “long term migrants”, and would even warm the hearts of New Zealand First supporters from the Kiwi heartland.

Note that almost all of the shrinkage so far took place before Election Day.  It was a reaction to both the upward adjustment of the Skilled Migrant Category (SMC) points threshold in October 2016, and the announcement in April 2017 of the changes to SMC and Essential Skills Work Instructions which the Government intended to roll out at the end of August.

This is not good news, though.  The Government Residence Programme, which is set every few years, was recently recalibrated to direct the acquisition of 85-95,000 approvals over the 2 years to June 2018.  This is something of a reduction from previous periods, but the NZRP target range has remained reasonably steady for about 15 years.  And it has not been met on a number of occasions since 2010.  If the above prediction is correct, then there will be a major shortfall by the middle of next year too.  About 60% of the Programme is to be filled by Skilled Migrant and Business Residence applications.  These are meant to attract skills, investment capital and entrepreneurial talent.  Most commentators agree that we need more of these inputs for New Zealand to remain sustainable in the long term, but we are looking down the barrel of a drought of these people and funds.

So Labour has drawn back from proposing major changes to the SMC points system.  Even if it had planned to make new policy, I believe that there would have been significant push-back from the real policymakers – the analysts and bureaucrats of the Ministry of Business, Immigration and Employment who have been working solidly on adjustments to the SMC settings since mid-2016.  They are justified in urging Government to “wait and see” the effects of the major changes to SMC Residence and Work Visa Instructions which only came into effect at the end of August.

Students and Low-Salaried Workers

Instead, Labour’s Election Manifesto on Immigration focuses on the tide of students who have historically gained rights to Work Visas in relatively low-end jobs as a pathway to Residence.  For example, they propose to remove the ability to get a post-study “Job Search Visa” (as we used to call it) for anyone qualifying below bachelor’s degree level.  In recent immigration mythology, the foreign student population has become one of the folk devils responsible for most of the pressures on our infrastructure and way of life – from house prices to Auckland’s traffic woes.

But it remains to be seen whether the new Government will have the political will to keep reducing the attractiveness of studying in New Zealand as a means to living here long-term.  For one thing, export education earns lots of tax dollars – money that Labour needs in order to fund its expansive plans for social housing, erasing child poverty and so on.  For another, powerful interest groups such as Federated Farmers and the Restaurant Association have already campaigned vigorously to protect the ability of relatively low-paid migrant employees to get Work Visas – because those major sectors of the economy are unsustainable without them.  And, despite the repeated mantra of, “Study does not guarantee Residence”, the fact is that people from all over the world want to find ways to come to a ‘Western’ country to live.  Whether Government likes it or not, New Zealand must compete for those tax dollars, and as a small-fry player too.  If we become too unattractive, they will go to Australia, Canada or the US.

The Coalition has a tenuous hold on power, and faces a vigorous and motivated Opposition.  If Labour wants a second term, it will have to compromise both with its xenophobic partner (NZ First) and with industry and business groups who are also voters and who influence opinion.

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It’s Getting Harder! – Common Immigration Challenges

Discussions with senior staff at Immigration New Zealand have confirmed what we’d assumed, that over the last year there has been increasing media and political pressure on INZ to decline or reject applications where they can.

Consequently, we have experienced our busiest year ever, as we are asked to help sort out mistakes by applicants and employers which have led to challenges and declines by INZ.

Common reasons for challenge or decline by INZ are:

  • Failure by the employer to provide current evidence of attempts to recruit NZers for every employer-based work visa application.
  • Failure by the employer to ensure that the position description is comparable with the tasks in ANZSCO. (Click on the link, insert the job title in the Search field, and check that the tasks identified are substantially similar to your PD).
  • Failure by the applicant to acknowledge past convictions.
  • Failure by applicant to account for change in relationship status e.g. single to partner
  • Failure to complete ALL the fields in an application. If a field is not applicable, show N/A and/or rule a line through it. The case officer can’t assume that it does not apply.
  • Claiming points in a skilled residence application (SMC) for qualifications which are not recognised, or work experience without evidence, or that is not relevant to the position.
  • Attempting to argue with INZ who have challenged an application. INZ must make their decision based on verifiable evidence provided with the application. Just because you think a position is skilled, does not mean it meets ‘skilled’ criteria as identified in ANZSCO [see above].

Sometimes, a poorly prepared application or one which has been lodged under the wrong category has to be withdrawn so that a replacement can be submitted. This requires close liaison with INZ to ensure that the applicant does not become an overstayer when the current visa expires during the process.

Although professional help in preparing an application may seem expensive, attempting to fix one which has been challenged or declined will be much more so, especially, if your lawyer or adviser has to defer other work to meet your deadline.

He said, “It’s only a work visa, how hard can it be?” Well, in my opinion, because work visas are seen by media and government as taking jobs from Kiwis, work visa applications are the 2nd most challenging category of immigration.

Posted in Business, Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas | Tagged , , | 2 Comments

Special Visas for Victims of Domestic Violence – The Challenges

According to the Family Violence Death Review Committee, between 2009 and 2015, 194 people died as a result of family violence. That is an average of 28 deaths per year, almost half of which were the result of intimate partner violence.[1] It is disturbing to read these statistics in 2017, not least because it is about New Zealand. Clearly, domestic violence remains an ugly undercurrent of New Zealand society.

Recognising the need to protect victims of domestic violence in migrant communities, a few years ago Immigration New Zealand established two special visa categories:

  • Special Work Visas for Victims of Domestic Violence; and
  • Residence Category for Victims of Domestic Violence.

However, the protection afforded to these victims is undermined somewhat by the restrictions built into the application process. This includes the limitations around eligibility, the need to provide documentary evidence of domestic violence, and the very short duration of the temporary work visa.

On the issue of eligibility, only temporary visa holders who are the partners (or ex-partners) of New Zealand citizens or residents can qualify for these visas. And so if the abusive partner also happens to be a temporary visa holder, then the victim cannot apply for these visas.

The victim must also be able to prove that domestic violence occurred. This can be almost impossible given the very limited types of evidence accepted by Immigration New Zealand, including:[2]

  • a Final Protection Order;
  • a relevant conviction;
  • a complaint of domestic violence investigated and accepted by the New Zealand Police; or
  • a statutory declaration from the victim and two other professionals confirming that domestic violence occurred.

Getting this evidence is arguably the most challenging part of the visa application process. This is because the list above assumes that, a) the victim is able to easily document the abuse they have suffered, and / or b) that they have access to resources – whether it is their own personal finances or from not-for-profit organisations – to secure that evidence. Even something as seemingly simple as securing statutory declarations from two professionals can be a very demoralising exercise for victims, given the policy restrictions in place. Not only is there a prescribed list of ‘competent persons’ who can give this evidence, the two people assisting with the statutory declarations “must [also] be unrelated professionally”[3]. And so by Immigration New Zealand’s own example, “they cannot be a doctor and nurse from the same practice”[4]. The visa application process therefore risks re-traumatising already traumatised victims through this overly prescriptive list of acceptable evidence.

Compounding all of this is the limited duration of the special work visa. If granted, the work visa is only valid for 6 months. It can only be extended (for a further limited period of up to 9 months) if the victim goes on to apply for the special residence visa. And that application is not without its challenges either.

To be approved under the Residence Category for Victims of Domestic Violence, the victim must be able to prove that, owing to financial incapacity or social stigma, they are unable to return to their home country. Therefore, not everyone who secures a special work visa will be eligible for a special residence visa.

And so whilst there is value in the current special visa categories for victims of domestic violence, more can be done to make the application process less traumatic and more accessible.

Where to go for help or information:

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[1]           Family Violence Death Review Committee Fifth Report Data: January 2009 to December 2015 (2017) at 18 and 19.

[2]           Immigration New Zealand Operational Manual, at Instructions WI7.5 for work visas and S4.5.5 for residence visas.

[3]           Immigration New Zealand Operational Manual, at Instructions WI7.10(b) for work visas and S4.5.6(b) for residence visas.

[4]           As above.

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

Success Story: Dutch Dredging

As a maritime nation, New Zealand is reliant on the free and efficient movement of vessels to, within and from our harbours. Without regular and ongoing maintenance, silting decreases the draught available to ships, while the development of larger vessels requires greater depth for ships to operate. Maintaining the capacity of our harbours is critical to the promotion of trade and our export industries.

Late last year, five of New Zealand’s major port companies, PrimePort Timaru, Napier, Taranaki, Lyttleton and Tauranga signed a 10 year deal with a long standing and reputable overseas based dredging company called Dutch Dredging B.V. (Dutch Dredging), to share the dredging services around the country. The contract for this deal was signed in the presence of King Willem-Alexander and Queen Maxima of the Netherlands and the Dutch and New Zealand Ministers of Economic Affairs, Henk Kamp and Steven Joyce, as reported by Stuff in its article published on 8 November 2016.

The contract meant Dutch Dredging was to deploy one of its trailing suction hopper dredgers called ‘Albatros’ to New Zealand for the work required. This was to be permanently stationed in New Zealand over the term of the contract.

As dredgers need to be manned by local seamen, that meant suitably qualified New Zealand citizens and resident seamen will be required to operate them. More jobs for New Zealanders!

However, dredges come in different types for different purposes and can have harmful effects on the marine and aquatic environment.  It was therefore critical for Dutch Dredging to ensure that Albatros is operated by qualified engineers with specialised knowledge and experience.

Dutch Dredging believed it would be appropriate to send their Dutch employees, a Master and a Chief Engineer, to New Zealand for a short stint and for a specific purpose, i.e. to handover the initial work required, provide training by transferring their skills and knowledge to local seamen, and travel to New Zealand to provide other special assistance on an as-needed basis. Dutch Dredging was to continue to employ them directly. No New Zealand based employer was involved.

Dutch Dredging knocked on our doors and sought our professional assistance. They needed work visas for the two men so they could readily land in New Zealand on a set date before the arrival of Albatros.  We arranged for multiple entry, Specific Purpose Work Visas to allow them to come and go on an as-needed basis and perform the work required.

The preparation for their visa applications was a challenging exercise. But the application process via the online portal was rather well done, without seeking the assistance of visa application centres and having to send in their original passports. Within a matter of three working days, we managed to get their visas through. It was a swift process handled amicably by immigration officers based in London.

These men are due to arrive in New Zealand mid-September 2017 for the specific work they have been assigned to do.  They bring a wealth of specialised skills and knowledge to New Zealand.

Dutch Dredging have expressed their delight at the speed with which the visas were issued, and for the explanation of the visa conditions and what their employees can expect of the arrivals process.

Posted in Immigration Visas | Tagged , , , , , | 1 Comment