Residence and Health – When is it Time to Call it Quits?

I am in the unusual position of supporting a recent change in Immigration policy which restricts people’s ability to apply.  This situation is illustrated by the recent case of Sanita Devi who failed in an application to the High Court for relief.  You can read the decision here.

Mrs Devi and her husband have been in New Zealand for nearly 10 years.  While applying for a Work Visa for her in 2008 they found out that she had lupus, a severe autoimmune disease.  Over the next few years Mrs Devi tried for numerous visas.  This culminated in a request for intervention by the Minister of Immigration, which was denied.

A key piece of the story, though, is that originally the couple’s joint Residence application was declined because of Mrs Devi’s medical condition.  Mr Devi later reapplied and left his wife off his Residence application, so that he did in fact get Residence some years ago.  They might have had a residual hope that she could then get Residence too.  The situation now, though, is that the couple probably faces a hard choice about whether Mr Devi should give up his Residence so that they both return to their home country of Fiji.

Previously, it was possible to do what they did – that is, leave a family member off an application because of their health, or other problems, and later see if they can get Residence another way.  This gap has now been plugged.  From 8 May 2017 an application for Residence must include the partner and all children of the main applicant who are already here on temporary visas.  What this means is that if someone tried to leave a family member off their Residence application:

  • the application could be declined for that reason alone, if this was discovered during the course of the application; or
  • if Residence was granted for the rest of the family, and Immigration later discovered that someone had been left off the application, then the whole family could become liable for deportation for “concealing relevant information”.

Now, that all sounds pretty Draconian.  So why do I support it?  The simple answer is that it stops families having false hopes that they can somehow work their way around the system to get everyone in, one day, eventually.  The reality is that most people in such a situation either never managed to achieve this; or, if they did, it would take years and cost a lot in fees to lawyers or immigration advisers.

As the record shows, the Devis have struggled for 9 years to try to get Mrs Devi her Residence.  If the policy had left no room for doubt back in 2008 then they might not have applied for Residence at all – or, at the very least, Mr Devi could not have got Residence on his own.  Maybe the uncertainty and cost of the last decade was a reasonable price to pay for being able to stay in New Zealand in the meantime.  But, as I sometimes ask clients, “Where are you going with this?  What do you want to do with the rest of your life?”

If, in the end, there is no long-term future in this country, then perhaps it is better to learn that early on and make your plans accordingly.

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Stuck between a rock and a hard place

A recent article in the New Zealand Herald made me realise once more how fragile our lives can become. The story of the English woman who can’t work in Australia but can’t leave to go back to the UK will be all too common in some ways and won’t be limited to Australia. As an immigrant myself, I am well aware of the emotions and stresses associated with immigrating. A lot was said about immigration and the pros and cons of allowing people who were born elsewhere to work and live in this country. When you place yourself in the shoes of those who desperately want to make a better life for themselves, the perspective changes.

It is so that not everyone who wants to live and work here should be allowed to do so. It is fair to say that any country should have a selection criteria by which suitable candidates are screened and ultimately accepted or declined. These selection criteria hardly ever convey the full story of those desperate to live free of crime and violence, close to their children; or seek stability for themselves and a future for their children. On top of this they often offer skills that will contribute to the economy of the country where they choose to settle. It sounds like a win-win situation for all parties concerned but it doesn’t always work out that way.

Sometimes ruthless people who watch from the side-lines see an opportunity to enrich themselves at the expense of these willing immigrants. All too often people are so keen on making the move that they forget to do their homework properly. A Look-See-and-Decide trip to the country of choice cannot provide all the answers. A lot must happen between deciding to leave your country of birth and getting that all-important visa in your passport. It is all about understanding the risks, getting the right advice and doing things the right way. All too often uninformed intentions lead to heartache and the disastrous outcome of having to return to your country of birth without that visa.

We regularly find desperate clients on the brink of having to leave this beautiful country because they did not approach the immigration process correctly. I like to refer to a proper approach as the 3 steps to a happy immigration:

  • Firstly you will need to get the right information. It is advisable to obtain this from a suitably qualified and well trusted source;
  • Secondly you will need to invest in your future. It will cost money to move and apply for the visas to allow you to work and stay. You will also require settlement funds to find your feet on the other side; and
  • Thirdly you will have to understand and deal with the emotional turmoil that this process will dump on you.

It could be the best or worst decision of your life. Policies constantly change, which can be a game changer for your dreams. Make sure you get it right by doing it right. Contact us for trusted and accurate immigration guidance so the process can be the stuff that dreams are made of. What you need is someone who will be honest enough to tell you what you can do and can’t do. It is better to know from the start whether this is doable or not.

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Too many? Too many migrant workers taking Kiwi jobs? Too many tourists destroying our country? Too many cattle fouling our rivers? Too many migrant students who can’t get skilled jobs?

The common denominator is immigration which has unintentionally, produced an oversupply of low-cost migrant workers, willing to work for sub-standard wages in their desperate attempt to qualify for residence in NZ.

Government has belatedly accepted that the current system is damaged and has proposed changes to the work and residence programmes in an attempt to lift the quality of people able to migrate to NZ.

But, as is too frequently the case when legislation is rushed or produced for political/electioneering purposes, it is the individual worker at the bottom of the pile who suffers the most.

What is changing and who will be affected?

From August, wage/salary levels are to be added into the recognition of skilled employment. This has been proposed by immigration practitioners for some time as it allows employers greater say in how important an applicant is to their business.

Under the proposed Essential Skills instructions:

Positions paying in excess of $35 per hour will automatically be recognised as skilled for both work and resident visas.  This will allow jobs such as some scaffolders or heavy equipment operators who currently are not considered by INZ as skilled, to be granted 5 year work visas and to apply for residence.

Mid-level ‘skilled’ people being paid approx. $24-$35 per hour may be granted 3 year visas. Both the skilled categories will be able to renew their visas and have family accompany them.

Lower-skilled workers, will only be granted 1 year visas and after a maximum stay in NZ of 3 years, must leave NZ for at least 12 months before applying for another essential skills work visa.  Lower-skilled workers will not be able to bring partners or children to NZ, unless they qualify in their own right. Children of lower-skilled workers will be required to pay international student fees.

One consequence of this approach must be a preponderance of young, dislocated men, away from the steadying influence of family, partners and children, trying to get ahead in a foreign culture with minimal, if any support.

The NZ economy is based on:

  • primary exports, in particular, dairy – a large employer of low wage migrants
  • tourism and hospitality – also a low-wage sector

If the government’s proposal are carried out, our key export earners will be facing considerable disruption as employers have to plan and cost for staff having to be replaced every three years.

Or will it force our low-wage industries to lift the quality of their services and their wages?

Posted in Immigration Visas | 2 Comments

Which Way Are We Going To Go On Immigration This Election?

Is it just me, or does the immigration talk in the news seem like it’s about to reach fever pitch? It seems scarcely a day goes by without some talk about the impact of immigration, changes to immigration policy, scandals within immigration… and we haven’t even started the official election campaign yet!

We’ve said this for a while and it now seems abundantly clear where the focus of this election will be heading – immigration is a great battle cry for the political parties, especially those seeking a boost in the polls.

Taking aim at migrants can be a real boost to some parties; it’s probably safe to assume that, in general, the electorate is fairly conservative when it comes to immigration, so pro-nationalist policies can attract widespread support.

At the same time, most migrants can’t vote (unless they have a Permanent Resident Visa, by which time they will have already been through the most difficult stages of the residence process), which means that it is very rare to lose a whole heap of votes for taking a tougher stance on immigration.

However, I sense that this view has changed somewhat over the last few years. Many people acknowledge the benefits of immigration, not only in economic terms, but in social and cultural terms as well. Migrants can bring skills and experiences which develop and enrich our communities. Generalizing about the impact of migrants (“They don’t want to integrate! They are taking our jobs!”) doesn’t reflect the dynamic reality of immigration in our small market economy.

It’s with this in mind that the recent changes to immigration policy seem to be pandering to the worst aspects of our nature. The NZ Herald covered the changes to immigration policy and how this is having a real world impact on people who are contributing and providing for the country. The axe is well and truly being swung down on pathways to residence for many people, especially those in roles which (let’s face it) many Kiwis don’t want to do.

We are already seeing the impact that this is having in the community. Businesses, especially small businesses, are very concerned about the impact these changes will have on staffing. Many businesses, particularly in the hospitality industry, simply don’t attract locals to the jobs they want to fill. It’s not realistic to expect that locals will simply plug the gaps where migrant workers once were – the reason so many people apply for residence as chefs, retail managers and restaurant managers is that Kiwis don’t want to take up the work.

At the same time, these changes will force out valuable staff members who have been in positions for years, simply because the Government has decided that they are surplus to requirements. Businesses will be gutted out, with key staff holding key knowledge and experience of the running of these businesses forced to leave because they are not deemed “skilled”.

My fear is bigger changes to the family categories. The Government has already taken a hard line on this, from removing the Sibling Categories back in 2012, to the recent closure of the Parent Category, among other changes. I certainly hope that we don’t see an adoption of a financial-based criteria for Partnership Residence like in the UK, which would seem a logical extension of current policy requiring financial contributions to obtain residence.

But this is where things stand – many people, who have come to New Zealand to study or work, making a real difference through their efforts, with a reasonable expectation that their contributions might lead to residence one day, are being cast aside in the name of more votes. What we might gain in a short term sense of fulfillment (as if cutting migration will be the silver bullet, cure-all for all of New Zealand’s social issues), we may lose out on over the long term. While it may be a perfectly legal approach to take, I’m not so sure it is the moral route to take either.

I prefer the approach advocated by others – let’s have a smart debate on immigration. Relying solely on outlier stories, scare mongering and downright falsehoods won’t get us anywhere. While there are legitimate grounds to say that we should fine-tune our immigration policy, whole-sale reactionary change just seems to be the wrong way to go. Let’s do this the right way.

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

Unwanted Side Effects Of Changes To Immigration Rules

http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11846425

It appears recent changes to the Skilled Migrant category may have quite an unintended side effect. An interesting article recently appeared in the New Zealand Herald. The article describes the impact that the new salary requirements to be imposed on employment which points are being claimed for in Residence applications under the Skilled Migrant category, may have on restaurants and in particular applicants claiming points for employment as a Chef.

One of the benefits of immigration for New Zealand which is often cited is the diversity that has come with it. This has flowed through in many cases, literally to the diversity in opportunities for “eating out”, especially in places like Auckland.

The New Zealand Herald article cites a Thai restaurant in Auckland CBD, whose Chefs currently hold Work Visas but do not earn at least $49,000 per year, meaning their employment would not meet the new salary requirements for their employment to be assessed as skilled in an application they make for Residence under the Skilled Migrant category . The business owner is quoted as saying his business is “totally dependent” on migrant workers and that “in the 30 years I have been in business I have never been this worried”. This is literally because as a result of the salary requirement the business may not be able to source and retain suitable staff, or alternatively in order to afford to pay them a higher salary, the business may need to increase its prices, with a direct effect on customers who may stay away as a result.

The New Zealand Herald article also mentions Restaurant Association survey of 110 businesses, which found that only one in ten restaurant workers are paid more than $49,000 per year. The impact of the new salary requirements could therefore be widespread.

While immigration continues to be a political football, it certainly is unclear whether the changes to the Skilled Migrant category were made while keeping in mind small businesses such as the Thai restaurant mentioned in the New Zealand Herald article, or the many other small businesses that the Restaurant Association survey indicates may be affected. Indeed it is quite possible that the impact of the new requirements on their situation was not specifically understood at all.  It is doubtful whether many New Zealanders will enjoy paying more for their Thai food or other meals out, or not being able to enjoy such food at all because the businesses have to close for lack of staff. Therefore while big noises are sometimes made about the unwanted side effects of immigration, it is relevant to note in the restaurant and Chef case for example, that ironically new requirements paraded in the media as “advancements” or “steps forward” are themselves likely to have an impact which is unwanted.

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Pause for Thought – the Akbari Deportation Case

Earlier this week the NZ Herald uncovered the story of Sultan Ali Abdul Ali Akbari who had the threat of deportation suspended by Immigration New Zealand, even though he had committed multiple crimes of sexual assault.  The writer has to ask: did the Minister of Immigration overreact by temporarily withdrawing INZ’s ability to make such decisions?

To see why this might be so, it is first of all necessary to understand the powers that Immigration was given.  Akbari has been a Resident for a few years, and under the Immigration Act a recent Resident automatically becomes liable for deportation if they commit an offence in New Zealand.  However, the Minister can decide, on a case by case basis, to suspend or even cancel that liability for deportation.  This power is one of “absolute discretion”.  As the term suggests, it is very broad and is not usually meant to be limited by particular criteria or policy.  Every case is different and may call for a unique approach.

However, what the Minister declared in his Press Release the same day was this:

“I have made my expectations very clear when it comes to deportation decisions involving offending of this nature and those expectations are not being met. So I am temporarily suspending Immigration NZ’s decision making authority until I have confidence that the decisions being made are consistent with my expectations.”

There is a problem here.  How can the Minister set up “expectations” of what is to be done when the decisionmaking power involved is meant to be an absolute discretion?  Now, it is all very well for Government to set up policy around general powers of decision in other situations, when no guide is given in the law as to how decisions will be made.  Policy like this is being written all the time.  But in this case the power is described as “absolute”.

So, has the Minister already been writing de facto legislation for his officials to follow when using his authority?  It certainly sounds like he has already done so in the past, and he is going to reinforce it now.  It is fair to ask if the Minister is in fact acting unlawfully in telling Immigration officers what to do with this delegated authority.

True, section 380 of the Act states: “A delegation may be made subject to such restrictions and conditions as the Minister thinks fit”, and so that provides an out.  But if that is so, where are those rules kept?  They are certainly not published in Immigration’s Policy Manual.  What we must conclude is that what was “absolute” is no longer “absolute” when it is not the Minister himself who decides.

We cannot presently know what directions have been given or will be given.  Are certain nationalities or religious groups excluded from having their deportation liability suspended just because of that status?  Are you out of luck if you are from Somalia?  Or if you are a Moslem?  Personally I think that is unlikely – but we just do not know.

So, back to the first question:  Did the Minister overreact?  It is worth reflecting on Akbari’s profile.  According to the Herald, he came here as a Resident in 2012, in his mid-50s.  This raises the possibility that he was accepted as a refugee on political or other grounds, although such details are kept strictly confidential.  This is significant because New Zealand has obligations under the Refugee Convention not to return someone to the threat of serious harm unless they are a risk to national security or they have been convicted of a “particularly serious crime” (Article 33).  The Parole Board directed his release in January this year, saying that his risk of reoffending would be mitigated by the support structures he could call upon in the community.   The point here is that his criminal offending is not the whole story, and it was not just Immigration New Zealand that was lenient upon him.

But, of course, it became a news story.  And it’s Election year.  Do we have more of these sudden-death directives from Government to look forward to in the next few months?  We will try to keep up with the play – but, as always, the immigration landscape continues to change from week to week, and it is likely that there is more excitement ahead as September draws closer.

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BREAKING NEWS – Big Visa Changes on Both Sides of the Ditch

Within the space of 24 hours, the Governments of both Australia and New Zealand have announced changes to their immigration policies. They claim to be addressing the needs of their respective labour markets, but there’s probably a bit of political self-interest in there as well.  It is instructive to see how different their responses have been to a global trend to “get real” on migration issues.

New Zealand – Tweaking and Tinkering?

Now, it is important to sort the facts from misreporting. While one article refers to the “skilled worker visa”, we need to distinguish between what’s happening with Residence and with Work Visas.

Residence

Some of my predictions in a post from September 2016 will be fulfilled when new policy comes into force in August this year.

The flagship of NZ migration is the Skilled Migrant Category (“SMC”) Residence policy. The changes are found here.

Features of the new game plan are:

  • For the first time, the salary paid in a job offer will determine whether the job can earn you points in a SMC application. Because the pass mark of 160 is so high, this is critical because almost everyone needs points from their job in order to apply. On the other hand, if your job was not on the “skilled” list but you are paid over $73K, you can now claim points where that was not possible before. Think: truck drivers.
  • Those in jobs paying over about $98K can claim bonus points too. This addresses a conundrum discussed at an industry-INZ consultation on the SMC which I attended last October: what to do about the high-paid, middle-aged, highly competent executive who never got a degree in her youth?
  • The balance is shifting toward rewarding work experience over mere qualifications – although extra points are also available for a Masters or Ph.D. Immigration policymakers were bothered by the flood of qualified but woefully inexperienced graduates of NZ export education flooding the queues of SMC applications – this was not what they had intended.
  • Bonus points will be cut back for those in the “future growth areas” of IT, creative industries and biotech.
  • And people will no longer be able to claim points for having relatives in NZ. This seems to run counter to the “settlement and contribution” criteria applied to SMC applications, as to the migrant’s ability to integrate into NZ society if they get Residence. Surely having family nearby would be an advantage, and encouraging people to come in who have this head-start would be a good equation as a matter of social policy.

The Opposition has, predictably, alleged that all of this is only a fiddling of the knobs, a pretence at action in order to gain votes for the upcoming Election. This, however, reflects a lack of practical understanding of how the policies work.  Some of the SMC changes appear to be subtle, but they will shut out whole slabs of the migrant market while opening the field for others.

Work Visas

Meanwhile, read about the Work Visa shakeup.  Unlike the SMC changes which are set to roll, the Work Visa review is a set of proposals which Immigration claims to be ready to consult on. As with the SMC scheme, they will put the final version into effect in August.

The same salary bands as for SMC will be used to determine whether people’s job offers are in “skilled” occupations for which Work Visas will be permitted. This could have a massive impact.  While the minimum threshold will be set at about $49K, our work is often with Work Visa applicants earning $35 – $45K, including those working for SMEs who say that they can’t afford to pay their managers or tech people more than that.  Again, though, your well-paid truck drivers could be back in with a chance.

Those who work in “lower skilled” jobs will only get Work Visas for 3 years. After that they must leave NZ for a stand down period, duration uncertain as yet.  As Bill Milnes just pointed out to me, think of the rest home carers who just won their fight for better pay.  That settlement may cost the Government $500 million a year because it subsidises the elder care industry. As so many caregivers are from countries such as the Philippines, is this an indirect way of tightening the fiscal strings?

And, critically, partners and children of people who get Work Visas for “lower skilled” jobs can only come in on Visitor’s Visas unless they themselves qualify for Work or Student Visas. Read: children must enrol as international students (and pay full fees).  This sets up an immigration class system.  The favoured ones who have the skilled jobs (as determined by Government) can bring the family in, perhaps plan for Residence down the track.  The underclass of the underskilled must think hard about whether to bring their families at all.  More to the point, they must consider whether to even make the journey themselves.

Now that is a problem. In many industries New Zealand relies upon migrant labour, often in the lower paying and semi-skilled jobs.  We can’t do without them.  New Zealanders don’t want to do those jobs – otherwise we wouldn’t have 139,000 unemployed.  The Government argues that it is getting real with migrants who may never have a chance to stay permanently. But many of them already know that.  They have come here nonetheless.  Making it less comfortable for them to be here may have two unintended consequences – starving key industries of manpower, and prompting social dislocation arising out of those who decide to stay here separated from their spouse and children.

Australia – Slamming the Door Shut

The Government will abolish the 457 (work) visa in a bid to get more Australians into the workforce. The 457 will be replaced with the completely new Temporary Skill Shortage (“TSS”) visa.

Changes are progressive – some are effective immediately, and 457 visas will be phased out entirely by March 2018.

There is also a move to tighten criteria for those applying for Australian permanent residence. This could have far-reaching consequences for some current 457 visa holders.

Are these changes likely to affect NZ visa holders?

We anticipate that when a 457 visa holder realises that her/his visa will not be renewed, the first place to look for an alternative will be NZ. We may find that those from countries in the Working Holiday schemes of both countries will cross the ditch; and visa applicants, especially those in lower-skilled positions, may face more competition for the jobs they want to use as a basis for their visas.

However, we may also see more skilled people, who no longer meet the Australian criteria for residence, looking to move long-term to NZ. This could be good for those businesses struggling to find skilled people in NZ, especially in those sectors which will probably be hit by the disincentives we mentioned just above.

Whether by accident or design, New Zealand is likely to benefit from the Australian moves. While Australia has taken a blunt, Trumpian “Aussies first” approach, NZ is fine-tuning in order to keep getting what the policymakers view as the good migrants.  The contrast between the two approaches is actually quite stark.

What should you do?

If you are wondering about how the above changes could affect your job or your visa prospects, seek professional advice well before your visa expires. The hard truth is that some people may not be able to renew their Work Visa on their current job, and others who planned on Skilled Migrant Residence have just been locked out.

On the other hand, opportunities for Residence may have opened up for well-paid, 30-something migrants with a solid work history. Those are the people we’d like to talk to.  They are also the people the NZ Government is apparently encouraging to stay.  Whether it really works out the way they hope for is yet to be seen.

Posted in Immigration Industry, Immigration Visas, Politics | Tagged , , , , , , , , , , , , , , | 2 Comments