Article Type: Media Articles

OPINION: So you qualify for the ‘one-off’ Resident Visa. Great. You’ve been in New Zealand for the past three years, you meet the criteria. What could possibly go wrong?

Let’s start with the day online applications open.

Immigration New Zealand (INZ) estimates that 15,000 applications could be lodged on or soon after 1 December 2021 (phase one), and another 95,000 between 1 March and 31 July 2022 (phase two).

Naturally, INZ doesn’t want them all lodged on the first day, or they could crash its online application system. In a recent briefing to immigration advisers, INZ stressed again and again that it doesn’t want everyone applying at once.

But there’s no need to rush, right? Surely INZ won’t process 110,000 applications on a first-come, first-served basis, will it?

Actually, nobody knows – not even INZ.

The order of processing is currently under review, but INZ hasn’t decided which applications it will process first. First-come, first-served could still happen.

What’s more, processing them all is likely to take a year or more. Still INZ says – no need to rush.

Then there’s the online application form itself. It’s still under testing. The first time anyone sees it will be on 1 December, when hundreds or thousands of people will start to fill it out, possibly hoping to be first in, first served.

The top 10 risks

So here, then, are what I see as the top 10 risks that could derail your eligibility for a 2021 Resident Visa:

Risk No. 1: Being in such a rush to fill in the application form that you provide incorrect answers, for instance to questions about health, character or family members.

To INZ, an incorrect answer equals ‘false and misleading information’, which is a reason to decline your application.

Keeping the form hidden behind ‘IT testing’ until 1 December only increases the chance of this kind of mistake. Come on, INZ, you know the questions now and should share them. That way, your clients are more likely to give the correct answers when the form goes live in two weeks.

Risk No. 2: You need to hold an ‘eligible visa’ when you lodge your residence application. Sounds simple? Not really. If your visa expires at any time between now and when you can lodge your application, and you haven’t had a new eligible visa approved, you no longer qualify for a 2021 Resident Visa.

Risk No. 3: You think you have spent long enough in New Zealand to qualify. But if you haven’t spent 821 days or more between September 29, 2018, and September 29, 2021 – or you didn’t arrive in the country for the first time on or before September 29, 2018 – you won’t meet INZ’s ‘settled’ criteria.

You could still meet INZ’s ‘scarce’ or ‘skilled’ criteria, right? See Risk Nos 4 and 5.

Risk No. 4: You may think you meet INZ’s ‘scarce’ criteria because your job title is similar to one on its ‘scarce lists’. INZ looks at whether your job matches the one on its list.

INZ also looks at what you declared on your last employer-supported work visa application. If you declared a different occupation – one that isn’t on one of its ‘scarce lists’ – then you won’t qualify.

Risk No. 5: You may have been working full-time for $27/hour on 29 September 2021, but if your employment agreement doesn’t reflect that you were working, on average, 30 hours per week over an agreed paid period, then your application won’t meet INZ’s ‘skilled’ criteria.

Risk No. 6: If you lose your job paying $27/hour or above, or you are no longer working in a ‘scarce’ occupation, you won’t meet INZ’s criteria for ‘skilled’ or ‘scarce’ in order to lodge your application.

Risk No. 7: INZ can decide that your job is not genuine because it believes your employer is dodgy.

Risk No. 8: You can include your partner in your application even if you are in New Zealand and they are currently overseas. INZ will look at the evidence you provide of previously living in a relationship and the ‘genuine and compelling’ reasons for your current separation and may decide to exclude your partner from your Resident Visa application.

Risk No. 9: You may have to leave New Zealand before lodging your 2021 Resident Visa application. If there is a family emergency in your home country and you leave New Zealand and can’t get back by July 31 next year, you’ll have lost your chance to qualify for residence.

Risk No. 10: If you lodged your application before July 31, 2022, but have to go back to your home country after that, INZ won’t decide your application until you return to New Zealand, whenever that might be.

If you’re applying under the 2021 Resident Visa category, I hope that none of these things happen to you.

But with those estimated 110,000 online visa applications, you can expect crashing websites, application delays, and possible complications.

‘Do it once, do it right’ is the lesson here.

OPINION: It’s good news that 165,000 people on temporary visas will qualify for residence in New Zealand. And the bad news?

Some people who don’t qualify may use fraud to meet requirements under the new 2021 Resident Visa category. And many will get away with it.

Let me give you an overview.

On September 30, 2021, Minister of Immigration Kris Faafoi announced that people who were in New Zealand on 29 September, holding an eligible work visa, could be approved residence if they meet one of the following requirements:

• they were in New Zealand for 821 days in the three years before 29 September, or
• they were working in one of 250 occupations on Immigration New Zealand’s (INZ’s) ‘scarce lists’, or
• they were paid at $27/hour or more on 29 September, working in a full-time role.

Hopefully, there won’t be much argument about whether people meet the first criterion. Either you have spent 821 days in New Zealand or you haven’t.

But most people will only be able to apply for residence from March 1, 2022, and they will need to stay on work visas until they lodge their application.

That is, if you no longer hold an eligible work visa, you may no longer qualify for residence.

Are you really working in a job on one of INZ’s ‘scarce lists’?

I can foresee plenty of arguments between INZ and applicants who are claiming that they work in one of the occupations on the ‘scarce lists’.

In the past, the main reason people have been refused Skilled Migrant Category visas is that INZ doesn’t accept that they are performing most of the tasks of that occupation.

For example, people claim to be forestry workers, but INZ says, ‘You are doing some of the tasks of a forestry worker, but not enough to convince us that you are a forestry worker – visa refused.’

That conflict is likely to continue under the 2021 Resident Visa category.

OPINION: It begins with name-calling. During a lockdown, migrants are hailed as ‘essential workers’. But when we are not in a lockdown I often hear them described as ‘low skilled’ workers.

Though they risk their lives by going to work in supermarkets or as caregivers – while most of us isolate – still they get no resolution of their visa woes from our ‘be kind’ government.

Instead, the government has used Covid as an excuse for its own abysmal handling of visa applications, and of immigration problems more generally. In March this year, for instance, Immigration New Zealand (INZ) blamed visa processing delays on Auckland lockdowns.

But is Covid really the culprit for our immigration problems? Let’s review the evidence.

Post-study work visa holders, and others, left in limbo

About 5000 post-study work visa (PSWV) holders have been stuck offshore for 17 months already. Many partners and children of New Zealand–based student and work visa holders are also stranded overseas, waiting for borders to reopen.

PSWV holders have been voicing their concerns for several months now. They are in limbo, many with study debt that they can’t repay. They have asked the government to commit to extending their work visas for the length of time they have been locked out of New Zealand, but their pleas have been met with silence.

I believe the government needs to honour the promise it made when it issued visas to these people. They are locked out due to circumstances beyond their control, and a kind government would at least communicate with them so they can plan their lives.

In July 2021 the government confirmed it had cancelled up to 50,000 offshore temporary visa applications. This number includes people who are married to New Zealanders. A High Court case is currently seeking to overturn the government’s decision to cancel these applications on the grounds that it was discriminatory.

Entry for privileged few

Meanwhile, in July the Wallabies were allowed into New Zealand – bypassing MIQ – because the Bledisloe match was ‘important economically’, according to Sports Minister Grant Robertson.

This adds to a long list of inexcusable government decisions over who to admit and who to shut out. People who have little connection to New Zealand – such as Lion King performers and America’s Cup spectators – can come in, but the partners and children of many temporary visa holders currently in New Zealand cannot.

Covid has closed our borders for a good reason, and it is government policy to make exceptions only for deserving cases. So can someone in government please explain why visiting entertainers are considered more deserving than offshore partners and children who haven’t seen their family members for more than 500 days?

OPINION: This is a real ‘good news’ story, and one I’m happy to be able to share.

We are hearing a lot these days about employers unable to bring in migrant workers, and migrant workers being kept apart from their family members overseas.

But – for obvious reasons – we don’t hear much about the migrant workers who are living here right now and being cynically exploited and mistreated by their employers.

Many of these people live every day in fear of losing their jobs and so their right to work in New Zealand.

Who is being exploited now, and how?

There is widespread abuse of this sort in New Zealand. Most commonly, migrant exploitation means:

• Being paid less than the rate on their employment agreement – or being made to work extra unpaid hours.
• Having to pay their employers a fee for their job offer in the first place, or work to pay it off.
• Not being paid for holidays or other leave they are entitled to.
• Being made to pay part of their own wages!

Until now, many migrant workers have been afraid to report the exploitation they are suffering, because their work visas are tied to that employer – if they can’t continue working for them they may have to leave New Zealand.

The new Migrant Exploitation Protection Work Visa (MEPWV) – which came into effect on 1 July – should change that. The title is a bit of a mouthful, but it’s a very positive development, and one we applaud.

Making it safe to move and find new work

The MEPWV will empower people who are in exploitative situations to lodge a complaint and apply for the new six-month visa. With their work visa no longer linked to the employer, the worker will then be safe to move jobs, and can work anywhere in New Zealand.

If their partner is also in the country, they can be approved a work visa as well, and their children can be approved student or visitor visas. None of them will need to pay visa application fees or levies. This is all great progress.

More positive news for migrant workers

The new MEPWV scheme will work hand-in-glove with the new Accredited Employer Work Visa (AEWV), which comes into effect on November 1.

The AEWV requires New Zealand employers to be accredited by Immigration New Zealand (INZ), they can support work visa applications from overseas workers. In applying for accreditation, employers will have to prove they haven’t breached employment or immigration law. Which is where the MEPWV could cause them some major problems.

OPINION: There’s been a lot of talk lately about an amnesty for overstayers.

Do we really want to reward people with a new visa who didn’t follow their last visa’s conditions?

I don’t. Amnesties just encourage more people to become unlawful, and to hang around breaking immigration law until the next amnesty comes along.

I support the government showing flexibility in granting temporary visas to genuine cases with special circumstances. But the priority must always be legal visa holders.

As an immigration adviser, I passionately believe that before devoting major resources to helping illegal immigrants, we should sort out the plight of people who hold lawful visas but are stuck in immigration limbo here in New Zealand.

And worse yet, those who hold valid visas but are stranded outside the country, often separated from their spouses and families.

The government is not being fair to legal migrants

Right now, thousands of legal visa holders are stuck in limbo with no certainty.

Many of them are forced to keep applying for work visas while they wait for Immigration New Zealand (INZ) to process their Skilled Migrant Category (SMC) residence applications.

The current processing time is around two years.

Another 9000 are stuck on temporary visas until the Minister of Immigration decides what to do with their expressions of interest (EOIs) under SMC. Will he invite them to apply? Won’t he? No one seems to know, least of all the Minister himself.

The most deserving cases don’t require amnesty

The Minister’s top priority should be reuniting families torn apart by Covid-19 measures. A lot of people have been stuck outside the country, separated from their spouses and children, for over a year now.

OPINION: Most immigration scams are committed against the government – but one of the biggest immigration scams I know of has been committed by the government.

The scam works like this: New Zealand government agencies encourage students from poor countries to mortgage their family’s property so they can come to New Zealand to study a business diploma. They tell them that this course will lead to a job and permanent residence in this country. Spoiler alert: it seldom does, leaving them struggling to pay their debts.

The victims of this scam are students from the Indian subcontinent.

Of course, since Covid-19 closed our borders, it’s not possible for most overseas students to come here to study. But the scam is still being promoted.

At the time of writing, there is still a checklist on the Immigration New Zealand (INZ) website which says that students from India, Pakistan, Sri Lanka and Nepal can present evidence of loans to pay for their studies in New Zealand in support of visa applications.

And Education New Zealand’s website is still encouraging people in India to approach its ‘ENZ-recognised agencies’ – the very education agencies spinning lies about how easy it is to study, find a job, and get approved residence in New Zealand.

In fact, even prior to the Covid-19 pandemic, when INZ stopped inviting people to apply for residence under the Skilled Migrant Category, only about 20 per cent of fee-paying students ended up being approved residence.

In recent years, India has been New Zealand’s second-top market for fee-paying students, after China. Mostly these students have been encouraged to take the shortest and cheapest qualifications that allow them to be approved Post-Study work visas.

This has led to an oversupply of Indian students with business diplomas in the New Zealand marketplace. You can often meet some of these students who have completed their studies serving you at your local petrol station, bottle store or dairy.

In other words, working in dead-end jobs which are unlikely to lead to residence here.

Those graduates in New Zealand are the lucky ones

These graduates in dead-end jobs are actually the lucky ones – at least they’re paying back the ‘education loans’ their parents took out to pay for their tuition fees and living costs.

They typically hold a two- or three-year Post-Study work visa, which allows them to work in any job – except prostitution – once they have completed their diploma-level or higher studies in New Zealand.

Worse off are the 5685 people holding Post-Study work visas who took a break back home after completing their studies in New Zealand, and are now unable to return here due to Covid-19 restrictions.

OPINION: What a sad, sick joke it has become where foreigners watching the America’s Cup can be approved entry as ‘critical workers’ during the Covid-19 pandemic while actual critical workers are being refused.

Stuff has revealed that more than 1000 people from overseas have been invited as ‘critical workers’ associated with the event, including representatives of more than 200 team sponsors and suppliers.

Immigration New Zealand (INZ) explains that these non-workers are being approved as ‘critical workers’ because they fit within the rules INZ has to follow.

This is nonsense. The rules say that an ‘other critical worker’ may be someone who is undertaking a time-critical role on a government-approved event – the America’s Cup is listed as a government-approved event.

The rules also say: ‘For the absence of doubt, co-owners of America’s Cup syndicates may be considered other critical workers’ under the above definition.

How did that rule get extended to representatives of team sponsors and suppliers?

INZ is talking rubbish

INZ is talking rubbish when it says it has “no discretion” in how to assess requests. Legally, it does.

How could INZ assess the Australian children’s music group The Wiggles as having ‘unique experience and technical or specialist skills that are not readily obtainable in New Zealand’ (the rules that they had to meet to be approved entry as ‘other critical workers’)?

Meanwhile, people with skills that are actually unique and not readily obtainable are being refused entry because INZ decides they don’t meet this rule.

These include a first aid expert in mass casualty events like terrorist attacks coming to give training to the New Zealand Defence Force, and a horticulture expert for a large New Zealand plant business with greenhouses three times the size of Wellington Stadium.

I myself dealt with a ‘critical worker’ request for a worker who wanted to come to New Zealand to maintain a unique piece of equipment that prevents asbestos dust being released into the atmosphere. Evidence was provided showing that no New Zealanders with knowledge of this filtration equipment were available to do the job, but INZ turned down the request, saying that there were plenty of asbestos removal companies here which could handle it.

Will INZ take any responsibility if this asbestos filtration equipment fails through lack of maintenance? I doubt it.

The suffering of our critical workers

An equally scandalous situation exists for the families of critical workers in New Zealand who were unlucky enough to be outside the country when the border closed in March 2020.

Now, 12 months later, some doctors and nurses who are protecting our health during the pandemic are still separated from their families overseas who don’t meet the government’s criteria to be granted a border exemption.

If it’s okay for the government to relax its border exemption rules to allow the entry of 98 per cent of people requesting entry to ‘work’ on the America’s Cup, why can’t it do the same to allow a few hundred family members of critical health workers to join them here?

National MP Erica Stanford asked a series of pointed questions on this topic in Parliament last week.

If we value the work that healthcare workers are doing in New Zealand, and we want them to stay here at a time of critical shortage – Stanford quoted 2000 more healthcare workers needed to give Covid-19 vaccinations – why aren’t we allowing their spouses and children to join them?

Frontline healthcare workers, who may be risking their lives doing their job during a pandemic, need and deserve the support of their immediate families. Yet the government has done nothing to allow their family members to join them, despite knowing about the problem for the past year.

Government must act

The Minister of Immigration has acknowledged the problem, but so far has done nothing to fix it.

Considering the contribution frontline healthcare workers are making, the Minister should be approving residence for them and their families, rather than worrying about how many managed isolation and quarantine (MIQ) places their families might take up if they are allowed entry.

After all, if the government can find MIQ places for America’s Cup spectators and The Wiggles, surely they can find them for the spouses and children of our critical workers?

The whole border exemption mess stinks of favouritism and unfairness, in my humble opinion.

OPINION: Desperate New Zealanders are travelling to Covid-hit countries to reunite with their overseas spouses in the hope that Immigration New Zealand (INZ) will grant their loved ones a visa.

INZ does not encourage this practice, dubbed ‘fetch and fly’ by one of my colleagues.

It goes against government travel advice during the pandemic, and there is no guarantee it will result in a visa being approved.

Nevertheless, many desperate Kiwis feel it’s their only chance to bring their overseas partners to New Zealand.

A systematic policy of exclusion

The reason New Zealanders are risking their health in this way is because their overseas partners fail to meet INZ’s ‘living together’ test. That is, although a couple may have been married for months or even years, have exchanged thousands of texts and met hundreds of times over video calls, they have not lived together long enough to satisfy INZ requirements.

In fact, just living together won’t meet INZ’s requirements: there has to be a paper trail of evidence.

This evidence can include, but is not limited to:

• joint ownership of residential property
• a joint tenancy agreement or rent book or rental receipts
• correspondence (including postmarked envelopes) addressed to both principal applicant and partner at the same address.

Of course, not everyone owns property, and it’s not unusual for a lease and utilities to be in just one rather than both partners’ names.

Green MP Ricardo Menéndez March’s partner from Mexico was apparently able to meet these requirements and be granted a visa to enter New Zealand not long ago. I asked Ricardo what evidence they’d been able to provide of their living together, but he wouldn’t say.

Ricardo did say that INZ case officers sometimes interpret ‘living together’ requirements differently, and this can negatively affect people from visa-required countries such as India and China.

“I would add that it particularly affects queer, interfaith and couples in situations where they may not be able to present a relationship that fits into the often narrow criteria,” he said.

Is INZ being tougher than usual because of the pandemic?

You might suppose that INZ is being tougher than usual because of the Covid-19 pandemic.

In fact, INZ has always done its utmost to exclude the partners of New Zealanders, and the partners of people who hold NZ work and student visas, who fall outside their narrow criteria.

In 2013, after intervention by the Ombudsman, INZ agreed to review more than 1000 partnership visa applications from India that it had declined on the grounds of ‘bona fides’.

They’d effectively told applicants, ‘Your partner lives in New Zealand and you don’t have employment to return to in India, so you obviously aren’t a genuine temporary entrant.’

In 2019, INZ was at it again, using the ‘living together’ test to suddenly stop approving general visitor visas for people in genuine relationships.

That time it took the intervention of Prime Minister Jacinda Ardern to force INZ to return to its usual practice. Ardern said that a strict visa policy that outraged New Zealand’s Indian community because of its impact on arranged marriages should be reversed, which it was.

Then along came the pandemic, and the doors swung shut again.

People are now even being turned down because of a previously seldom-used subclause in INZ’s definition of living together – namely, that it ‘does not include time spent in each other’s homes while still maintaining individual residences’.

Let’s say a long-suffering New Zealander moves overseas during the pandemic to live with their spouse, but doesn’t sell their house or give up the property they’re renting in New Zealand. INZ will tell the overseas partner, ‘You don’t meet our definition of living together.’

These efforts to prevent the genuine husbands and wives of New Zealanders from joining them in New Zealand are heart-breaking. And it is happening again and again.

What can New Zealanders do to reunite with their overseas spouses?

This is the sort of catch-22 that has led desperate New Zealanders to resort to ‘fetch and fly’, despite INZ’s warnings it may not work.

Stories like this one about Kiwis’ and temporary visa holders’ spouses being refused border exemptions to join them in New Zealand appear in the media almost daily.

I asked INZ how New Zealanders whose relationships are genuine but who don’t meet the ‘living together’ requirement can get their partners here: their answer was that they can’t until the border reopens. And nobody knows when that will be.

OPINION: New Zealand will restart its refugee programme this month, allowing 210 refugees to arrive by June 2021. What chance – if any – is there for other migrants who hope to stay permanently?

Since Covid-19 closed New Zealand’s borders nearly a year ago, Immigration New Zealand (INZ) has stopped inviting skilled migrants and investors to apply for residence visas.

These programmes are on hold until April 2021 at least – the government will decide before then whether to reopen them.

In the meantime, INZ is working its way through an 18-month backlog of 13,000 unallocated Skilled Migrant Category applications. It continues to accept new residence applications from the partners and dependent children of New Zealanders.

Skilled migrants who applied for residence prior to the Covid-19 pandemic and who still hold skilled employment in New Zealand will likely have their applications decided some time in 2021.

Other skilled migrants will have to wait

It’s great that refugees are still being settled here – this reflects New Zealand’s caring attitude in the midst of a worldwide pandemic.

Work visa holders would like to be allowed to stay permanently in New Zealand too, but in the meantime they are being shut out.

The door is not completely closed to skilled migrants, though, as INZ continues to accept expressions of interest (EOIs) from people who would like to be invited to apply for residence.

This is a strong indication that INZ will reopen the Skilled Migrant Category. Since INZ stopped selecting EOIs in March 2020, more than 6000 principal applicants have submitted new EOIs, claiming that they meet the current passmark of 160 points to be granted residence in New Zealand. Points are awarded for age, qualifications, skilled employment and skilled work experience.

The simplest thing would be for INZ to finish processing its applications on hand, then invite these people to apply for residence.

At its current rate of processing, that would be about nine months’ work for INZ’s immigration officers – an instant backlog, but then INZ should be used to dealing with backlogs by now.

So how many migrants does the government actually want or need?

An unanswered question is: How many permanent migrants does the government want?

For the 18-month period to the end of December 2019, the government had a target of between 25,500 and 30,600 skilled/business migrants. The government also targeted approval of about 20,000 partners and dependent children of New Zealanders, and about 6000 others (including migrants from the Pacific Islands, and refugees).

However, since the beginning of 2020, the government has not had any residence targets. A reminder: Winston Peters was in government until October 2020, and his New Zealand First party has always been anti-immigrant – its policy was to slash the number of permanent migrants.

There are no such impediments now to the new Labour government setting residence targets.

Moreover, New Zealand’s economic recovery is becoming clearer – the unemployment rate dropped from 5.3 per cent to 4.9 per cent in the December 2020 quarter. Once the border reopens to international tourists and students, New Zealand’s economy will grow again, creating employment opportunities that won’t be filled by the local labour market.

Skilled Migrant Category settings allow people who are working in skilled employment, are highly paid and have good English to be approved for residence (along with their families). That is, exactly the sort of people we want to stay permanently in New Zealand.

My best guess . . .

I’m picking a reopening of the Skilled Migrant Category in the second half of 2021. Possibly the EOIs on hand will be invited to apply at 160 points, then the points passmark could be raised to 180 points.

Or, INZ could leave the points passmark at 160 points, and – as it has already flagged – raise the threshold pay rate for skilled employment to the New Zealand median wage of $27/hour. Currently the threshold is $25.50/hour, which was the median wage prior to June 2020.

Why might INZ raise the bar to qualify under the Skilled Migrant Category? Simply because the competition for places will increase exponentially in future – once New Zealand reopens its borders, we will be a magnet for highly qualified skilled workers and investors from overseas.

If the points passmark goes up to 180 points, it will impact those people who score 160–175 points; they account for about half of EOIs (3400 of the ones on hand), and they will miss out.

Will INZ take this approach? Only time will tell.

My recommendation to those who qualify now: If you can score 160 points, lodge an EOI as soon as possible. Remember, you can’t win Lotto if you don’t buy a ticket.

OPINION: In mid-2021, Immigration New Zealand (INZ) will roll out a new temporary work visa which requires employers to be accredited – replacing six employer-assisted work visa categories.

As well as simplifying and streamlining the process for all parties, the new system will make it much more risky for employers to exploit workers from overseas.

Most employers I have dealt with have never had any compliance-related problem with INZ.

And even if they had, I have managed to counsel them to make improvements, and persuade INZ to give them a second chance.

But anyone working in the immigration industry knows of employers paying their overseas workers below the minimum wage, making their staff work unpaid extra hours – even asking workers to pay their own salaries.

Does this really happen in New Zealand? Why would an employer ask a worker to pay them? Shouldn’t it be the other way around?

Yes, it happens.

Workers need jobs to qualify for residence or for three-year work visas, and INZ requires those jobs to be paid at $25.50/hour or higher.

Some workers are prepared to pay for their job offer or ‘top up’ the rate their employer pays them so that it meets the $25.50/hour requirement – a crooked practice by both parties.

People who have already paid large sums of money to study in New Zealand (and often borrowed money to pay for studies) may also be prepared to pay similarly large amounts for jobs which they think will guarantee their future here.

For example, a skilled job offer outside Auckland scores 80 points – exactly half the 160 points they need to qualify for residence under the Skilled Migrant Category.

It doesn’t always go to plan, of course. INZ is alert to possibly non-genuine job offers.