ANZSCO and Skill Levels of Jobs

When surfing the net on NZ skilled job based visas, such as Essential Skills Work Visa or Skilled Migrant Residence Visa, you may have heard or read about the term “ANZSCO” and/or the phrase “Skill Level”. Let me tell you more about them in this blog.

ANZSCO and Skill Level

The term ANZSCO stands for Australian and New Zealand Standard Classification of Occupations. It a skill-based classification used by both New Zealand and Australia to classify all occupations in the labour markets of both countries.[1]

The ANZSCO is structured in five hierarchical levels i.e. major group, sub-major group, minor group, unit group and occupation. The most detailed level of the classification is called occupation which is denoted by 6 digits, e.g. 142111 Retail Manager. A set of occupations are aggregated together to form a unit group, e.g. 1421 Retail Managers.

Each unit group has a description of the nature of the occupations, a summary of the main activities of occupations that form part of that unit group and a detailed list of duties that would generally apply to all or most of the occupations in that unit group.

All occupations (and unit groups) listed in the ANZSCO are assigned skill levels ranging from Level 1 (highly skilled) to Level 5 (low skilled). Table A shows examples of occupation and industry for each skill level:

Table A:

Skill Level Occupation and Industry
1 – Highly Skilled Managers and professional roles in these industries: education and training (teachers); professional and technical services; health and social assistance and agriculture (farmers and farm managers)
2 Managers in the accommodation and retail industries, support workers in the health and social assistance industry
3 – Skilled Technicians and trade workers in the construction, manufacturing and other service industries
4 Carers and receptionists in the health industry; road and rail drivers in the transport industry; and clerks, operators, drivers, store people, process workers in the manufacturing industry
5 – Low skilled Sales workers in the retail industry, factory process workers in the manufacturing industry; accommodation, farm, forestry, and garden workers in agriculture; and cleaners and laundry workers in administration

Reference: Statistics New Zealand [2]

For each skill level, ANZSCO outlines the level of relevant formal qualification, the amount of relevant work experience and/or on-the-job training that may be required for an individual to competently carry out the tasks and duties of an occupation. For most occupations, work experience may substitute the qualification listed. However, in some instances, work experience and/or on-the job training may be required in addition to the required qualification. Registration or licensing may also be required for certain occupations.

Table B shows the different qualification and/or work experience required for each skill level:

Table B:

Skill Level Qualification Work Experience
1 – Highly Skilled Bachelor or above 5 years
2 Diploma 3 years
3 – Skilled NZ Register Level 4 3 years
4 NZ Register Level 2 or 3 1 year
5 – Low skilled NZ Register Level 1 or compulsory secondary education Short period of on-the-job training

Reference: Australian Bureau of Statistics[3]

When determining whether a particular job matches an ANZSCO occupation, the applicant should compare their job against the ANZSCO description of an occupation and determine whether they are suitably qualified by training and/or experience to perform that job.

Correlation between ANZSCO and skilled job based visas

The ANZSCO forms part of the Immigration New Zealand (INZ) operational manual. INZ will refer to ANZSCO when assessing whether an applicant is eligible for a visa based on their “skilled” job, hence the skill level of an applicant’s job becomes a key factor in their assessment of these visas.

For Essential Skills Work Visas, different rules apply for each skill level. Depending on the skill level and the level of remuneration of the job:

  1. the applicant may get a Visa for a longer duration;
  2. the applicant may be subject to a stand-down period after a few years; and/or
  3. the applicant’s accompanying family member(s) may not be able to seek the type of visa they may wish as a dependent of a skilled job based visa.

For Skilled Migrant Residence Visas, an applicant must have a job (or a job offer) with a New Zealand employer that is “skilled”. Depending on the skill level and the level of remuneration, the applicant’s job may not be assessed as skilled to qualify for points for skilled employment. Similar rules now apply for prior work experience. They must also be “skilled”. Depending on the skill level of the applicant’s previous job, their experience may not be assessed as skilled to qualify for points for skilled work experience.

If you plan on seeking a skilled job based visa, it would pay to know the skill level of your current NZ job (or a job offer) as it may make an immense difference to what visa you can seek for yourself and/or accompanying family members (partner and children) and your future plans in New Zealand.

For a detailed assessment and advice on the skilled job based visas, come and speak to one of our immigration specialists today.

[1] Australian Bureau of Statistics. (n.d.). Retrieved May 1, 2018, from http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/1220.0Chapter32013,%20Version%201.2

[2] Statistics New Zealand. (n.d.). Retrieved May 1, 2018, from http://archive.stats.govt.nz/browse_for_stats/income-and-work/employment_and_unemployment/skills-employed-people.aspx

[3] Australian Bureau of Statistics. (n.d.). Retrieved May 1, 2018, from http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/1220.0Chapter32013,%20Version%201.2

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

Skilled Migrant category changes have made it more difficult for migrants working in areas of identified Long Term Skill Shortage, to secure Residence

Changes to the points structure of the Skilled Migrant category in August 2017 have made it more difficult for those seeking to be granted Residence based on employment. These changes followed an increase in October 2016 of the points required for selection of an Expression of Interest under the Skilled Migrant Category, to 160. The October 2016 changes were made by a then National Government, arguably under a level of political pressure on the issue of immigration.

However a more restrictive approach adopted in August 2017 by the National Government and remaining unchanged under the current Labour Government, may be setting the bar too high. In particular, the approach after August 2017 places stricter rules around how skilled employment and work experience may qualify for points.

Before the October 2016 increase in the number of points required to 160, it was the case that applicants scoring 140 points or more had the possibility of being granted Residence, without a job offer. Due to the way the points system was structured, to be granted Residence without a job offer commonly meant that applicants needed to claim points for work experience or qualifications in an area of Long Term Skill Shortage. Applicants with work experience and qualifications in an identified area of Long Term Skill Shortage could secure Residence, without needing a job offer in New Zealand. This was of significance, given the difficulties associated with securing a job offer for many migrants who are located overseas, as many New Zealand employers want to meet with their potential staff member in person before they make an offer of employment.

Jobs in fields such as engineering and ICT appeared on the Long Term Skill Shortage List prior to October 2016 and while they still remain on the Long Term Skill Shortage List at the present, the increased points and post-August 2017 change to the structure of the Skilled Migrant requirement means that a job offer is now required.

There does seem to have been a reduction of the numbers of those in the following occupations, which appear on the Long Term Skill Shortage List, being approved Residence. The writer identifies the following changes from INZ statistics, from a) 1 April 2015 – 31 March 2016, b) 1 April 2016 – 31 March 2017, and c) 1 April 2017 – 31 March 2018.

  • Civil Engineer. a) 116, b) 122, c) 61.
  • ICT Business Analyst. a) 122, b) 125, c) 63.
  • ICT Systems Test Engineer. a) 68, b) 53, c) 11.
  • Quantity Surveyor. a) 101, b) 89, c) 35.
  • Software Engineer. a) 337, b) 288, c) 142.

Therefore it may be the case that an unexpected side effect of the changes to the Skilled Migrant category, which have effectively removed the ability to qualify without a job offer, have resulted in a reduction in the number of highly skilled migrants being granted Residence.

It may, of course, also be the case that the more restrictive approach adopted since August 2017, makes it more difficult for not just those working in the occupations identified above to be approved, but other occupations as well. Overall, the total number of migrants approved Residence in each of the time period identified is a) 13,975, b) 13,160, c) 6,376.

It may be viewed as a loss for New Zealand, that the number of both skilled migrants in the group identified and more generally, has fallen away somewhat. Others may view it positively, but the writer would suggest that with well documented shortages in areas such as construction and given the value of skills in ICT, they may need to explain why this is so.

Posted in Citizenship, Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas, Politics, Practice of Law | 2 Comments

Beyond Residence

There are many privileges of being a New Zealand Resident Visa holder. Naturally, there are also obligations that attach to this status which, for the most part, are easy enough to abide by. It is however important to be aware of some of the key “dos” and “don’ts” of being a Resident so as to avoid issues arising after the grant of residence.

Demonstrating a Commitment to New Zealand

There are differences between a Resident Visa and Permanent Resident Visa.[1] The plain Resident Visa has Travel Conditions – for the first time, they usually span 24 months[2]. This allows the holder multiple entries to and from New Zealand for that period only. When the Travel Conditions expire, a Resident Visa holder should normally be able to apply for a Permanent Resident Visa: a truly indefinite visa with no Travel Conditions. To do so, the Resident must be able to demonstrate a commitment to New Zealand[3] having:[4]

  • spent a significant period of time in New Zealand; or
  • acquired tax residence status in New Zealand; or
  • invested in New Zealand[5]; or
  • established a business in New Zealand; or
  • established a “base” in New Zealand.

For most Resident Visa holders, the first option is often the easiest. Essentially, it requires them to live in New Zealand for at least 184 days in each 12 month period for the 2 years directly before they apply for Permanent Residence[6].

Where a Resident Visa holder needs more time to meet the “commitment to New Zealand” requirement, they can apply for a Variation of Travel Conditions provided that:[7]

a) they are in New Zealand, or
b) they are outside New Zealand and the Travel Conditions have not expired.

There are other important restrictions which apply to the grant of a Variation of Travel Conditions to those on Resident Visas living outside New Zealand. The Courts have made it clear that it is the visa holder’s responsibility to investigate, understand and meet the conditions of their visa.[8] If you are on a Resident Visa, you must proactively research[9] or seek legal advice on the conditions of your visa because “residence, if not maintained, may be lost.”[10]

Charges and convictions

Another critical point:  if you are convicted of an offence whilst on a Resident or even a Permanent Resident Visa, you could face deportation.[11]

Very often, we see a Resident Visa holder who is either charged with or convicted of an offence involving driving with excess blood / breath alcohol[12]. If they haven’t yet been convicted, we are asked to provide the Court with an expert Affidavit explaining how a conviction could seriously damage their immigration status. This could be particularly helpful if they try for a Discharge Without Conviction under Section 106 of the Sentencing Act 2002. If the Section 106 application fails and the Resident Visa holder is convicted, Immigration New Zealand will start deportation action against them. As part of this process, the Resident Visa holder will usually be given the chance to give written reasons why deportation should be suspended or cancelled[13]. This may be the only real opportunity for the Resident Visa holder to argue their case with Immigration New Zealand, so the response should be carefully prepared. If the request is denied, they will be issued with a Deportation Liability Notice and the only options left at this point would be either to appeal to the Immigration and Protection Tribunal on humanitarian grounds, or to depart the country voluntarily.

In Summary

The moral of the story is:

  1. Do your homework. Understand the conditions of your visa and if in doubt, seek legal advice; and
  2. Don’t break the law. Over the years, we have seen many clients go through the unnecessary stress and trauma of losing their right to live permanently in New Zealand for reasons that could have been easily avoided.

The goal is not only to get residence, but to keep it once you’ve got it.

 

[1]           See Instruction RA1.1 and Instruction RA1.5 of the Immigration New Zealand Operational Manual for the currency and nature of residence and permanent residence visas, respectively.

[2]           See Instruction R5.66.5(a) of the Immigration New Zealand Operational Manual for exceptions relating to duration of travel conditions.

[3]           Immigration New Zealand Operational Manual, at Instruction RV2.5(c).

[4]           Immigration New Zealand Operational Manual, at Instruction RV2.5.1 to RV2.5.20.

[5]           This option only applies to residence visas granted under the Business Investor Category. See Instruction RV2.5.10(a)(i) and (ii) of the Immigration New Zealand Operational Manual.

[6]           Immigration New Zealand Operational Manual, at Instruction RV2.5.1.

[7]           Immigration New Zealand Operational Manual, at Instruction RV3.1(b).

[8]           The Court of Appeal decision in Dahiya v Chief Executive of the Ministry of Business, Innovation and Employment [2016] NZCA 546, is one example.

[9]           This can include researching the Operational Manual or Immigration New Zealand’s website which has useful guides.

[10]          Doug Tennent Immigration and Refugee Law (Revised 3rd ed, LexisNexis, Wellington, 2017) at 119.

[11]          Please note there are other scenarios that can give rise to the liability for deportation of residence visa holders. See Immigration Act 2009 for details.

[12]          Land Transport Act 1998, at section 56.

[13]          Immigration Act 2009, at section 172(1).

Posted in Business, Citizenship, Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas, Politics, Practice of Law | 2 Comments

Buying a Business – the Easy Way to Residence?

Umm, no, it isn’t.  Here’s why.

This post was inspired by a Herald article just before Easter, about an Indian international student who bought a café franchise with a plan to use it to get a business visa.  He did this because of the difficulties which international students now face in following the pathway to Residence after completing a New Zealand qualification.  The article doesn’t tell us whether he’s got his first Entrepreneur Work Visa (“EWV”), but it’s clear he hasn’t got Residence yet.  He apparently said that he saw the Entrepreneur route as a “more straightforward way” to become a Resident.

The Hard Road to Residence via Employment

In some ways this is understandable.  The traditional route to Residence after study begins with an open 1-year “job search” Work Visa.  The difficulties begin when you want to get a suitable job offer to qualify for a 2-year “work experience” visa.  Immigration policy requires firstly that this job be directly relevant to the major subject-area of the qualification.  In the last year, this has been interpreted much more strictly, with visa officers drilling down to the list of subjects studied and declining applications which were easily approved back in 2016.  The second test is whether the candidate’s diploma or degree was a key factor persuading the employer to hire them.  This has also become a painful exercise.  Take someone who was originally hired while on the job search visa, if they then apply for the work experience visa with the same job offer, Immigration may object that the employer was not influenced by the qualification at all, because they already had the employee on the books and did not need to look at the qualification when considering whether to keep them on.

Then there is Skilled Migrant Category (“SMC”) Residence.  A new scheme was opened in August 2017 which first of all introduced a salary threshold – your job will not be recognised as “skilled employment” unless it pays at least $24.29 per hour (about $50,500 on a 40-hour week).  People who got jobs in the $40-45K range last year suddenly found themselves in a dead-end position.  Secondly, the way in which work experience qualifies for points has become more devilishly complicated – you can now only claim for the years you worked where that work would be credited as “skilled employment” itself.  And there were other tweaks which were intended to favour age and experience over diploma certificates.

As a result, the number of SMC applications, and the number of approvals, have dropped away in the last few months.  Successive Governments pledged themselves to plug the flood of offshore students filling up the places on the Government Residence Programme.  And they seem to have succeeded.

Entrepreneur Residence – Harder Still

Back to our enterprising Indian student who said that the Entrepreneur policy offered a “more straightforward way” to Residence.  Sadly, nothing could be further from the truth.

Figures recently released by the Business Migration Team show that it has been declining an average of 93% of EWV applications month on month since late last year.  Less than 1 in 10 applicants have a chance of getting through.  Officials have admitted that they have determined to send the message that they simply will not grant visas to people who have not done an absolutely thorough job on preparing their business case.

Part of the reason is the need to demonstrate that the business proposal will deliver a “substantial benefit” to New Zealand.  Not just a benefit, but a big benefit.  There are three ways this can be done, by:

  • generating export earnings;
  • introducing a completely new product or service, or a new way of doing things which the NZ market has not seen; or
  • being “high growth” – whatever that means.

After someone gains their Entrepreneur visa, they then face probably an even greater challenge.  This is that they must meet all the objectives which they set out in their Business Plan for the 3-year duration of the Plan.  They cannot afford to drop the ball on any of them.  Forget economic fluctuations, forget the intervention of a new competitor in the market, forget all the stresses and reversals which most new businesses face – you must succeed at all costs, and in the manner which you confidently predicted all those years ago.  This is because the EWV only permits you to apply for Residence after proving that you have successfully operated the business for 2 years.

We have always known that the EWV option was hard, and ever since it was unveiled in 2014 we have actively discouraged people from applying.  The way things stand now, we could not recommend this option unless someone had a truly remarkable offering, and the business sense and attention to detail needed in order to file such a difficult application.  In most cases there will be another way, whether it be looking for that elusive skilled job offer, or moving $10 million to New Zealand as an Investor.

It’s pretty unlikely that buying an Esquires coffee shop will deliver any of the “significant benefits” mentioned above.  Franchises have fared particularly badly as a vehicle for getting an EWV granted, even before the more recent tightening on the screws.  Still, we wish our Indian businessman luck.  He’s going to need lots of it.  And this is only to get, and the keep, the Work Visa which is the first step in the Entrepreneur process.

Posted in Business, Citizenship, Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas, Politics, Practice of Law, Property, Refugees | 2 Comments

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.

Posted in Business, Citizenship, Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas, Politics, Practice of Law, Refugees | 2 Comments

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.

Posted in Business, Citizenship, Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas, Practice of Law, Refugees | 2 Comments

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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