Changes to INZ processing residence applications following High Court decision21 Dec 2021

A number of changes to immigration policy and procedure have been announced, following the recent High Court decision of Afghan Nationals v Minister of Immigration [2021] NZHC 3154 . The judgment addressed a number of legal issues, scrutinising INZ decision-making in response to the snap legislative changes made during the early stages of COVID-19. Significantly, the Court declared that the processing of residence applications submitted offshore while the border was still open should be completed.

Since the Court’s finding, INZ has announced it will resume processing offshore residence applications received prior to the March 2020 border closure. Up until now, since the implementation of New Zealand’s COVID-19 border restrictions, INZ had paused its decision making on such applications. According to an INZ media release, around 2,300 on hand residence applications will be impacted by this.

A further consequence of the judgment, is that the approximately 4,000 people offshore who already hold New Zealand resident visas but had not been able to enter New Zealand are now able to travel here, provided they meet Air Border Order requirements.

These changes have now been codified and are described in INZ’s Amendment Circular No. 2021-59.

Afghan Nationals v Minister of Immigration [2021] NZHC 3154

This application for judicial review was brought by Afghan nationals, whose family members had assisted the New Zealand Defence Force when our troops were still in Afghanistan. The applicants had applied for New Zealand residence visas under the refugee family support category, but these visas had not been granted at the time the borders were closed in March 2020.

Following amendments to the INZ Operational Manual (Immigration Instructions) made in 2020, including closing the border to all but a few exceptions, INZ took the view that resident visas could no longer be granted because it considered the applicants would not qualify for entry permission. INZ also decided not to issue critical purpose visitor visas to the applicants.

While acknowledging the difficulties associated with interpreting new policy during a pandemic, especially with the concurrent Afghanistan humanitarian crisis, the Court found that INZ had erred in its decision-making.

The judgment contained a discussion of ouster, or privative, clauses. In this case, the relevant ones were section 187 and section 191 of the Immigration Act (2009), which appear to exclude judicial review of decisions to decline to grant a residence visa, or issue an invitation to apply for a visa. However, the Court found that ouster clauses cannot be interpreted to mean that statutory decision makers are entitled to act inconsistently with the legislation from which they derive their power. An ouster clause cannot exclude a challenge that involves an allegation that the statute is not being properly applied, as was the allegation in this case.

In finding for the applicants, the Court determined three major arguments as follows:

1. Whether INZ acted lawfully in declining to process and issue the residence visas sought by the applicants because of Y4.50 of the Immigration Instructions.

INZ had taken the view that because the border was closed, it meant the relevant visa applications could not be approved because of the combined effect of Immigration Instructions Y4.50(a)(iii) and Y3.5.1(a)(ii). These sections addressed border entry permission, placing strict, limiting criteria on who could travel to New Zealand.

The Court found that INZ failed to properly address the applications, and that the failure to determine the applicants’ residence visa applications was unlawful. The applicants were entitled to have their applications determined in accordance with the Residence Instructions, including the provisions addressing border entry permission, in force at the time they made their application, not those in effect at the time border entry permission was sought. The changes to the Instructions in relation to entry permission introduced with the COVID-19 border closure from 2020 should not have been applied to the applicants, who had already lodged their applications. To this extent, Y3.5.1(a)(ii) of the Instructions was deemed ultra vires as inconsistent with the Act.

Although the application to the High Court had succeeded on these grounds, the Court also addressed other arguments.

2. Failure to issue critical purpose visitor visas on humanitarian grounds.

The Court found the applicants were also wrongly denied critical purpose visitor visas – a temporary visa category designed to enable exceptions to the border closure to be granted offshore – because of INZ’s misinterpretation of the humanitarian exception contained in the COVID-19 Support Restricted Temporary Entry Instructions. The relevant Instruction, H5.30.25, required that an individual must have exceptional circumstances that make it “strongly desirable for the person to travel to and enter New Zealand”, as opposed to any other country in the world. INZ interpreted the instruction to necessitate the relevant humanitarian circumstances arise in New Zealand, for example, where an applicant wished to visit a seriously ill family member residing here. However, the Court determined there is no such geographical boundary. Rather, there is a required connection between the humanitarian circumstances and the desirability of applicants coming to New Zealand in particular.

Here there was an obvious reason for the applicants to be allowed to come to New Zealand, notwithstanding the COVID-19 restrictions on entry. The reason why they faced danger in Afghanistan was in a significant part, because of the assistance their families provided New Zealand military forces when they were part of the allied forces occupying Afghanistan. Further, the grant of New Zealand residency to the applicants was, prior to the border closure, imminent. They have since been faced with COVID-19 restrictions, and the humanitarian crisis in Afghanistan.

In the wake of this decision, INZ issued Amendment Circular No.2021-56. Immigration Instructions now explicitly state that the critical purposes for travelling to New Zealand include people who meet compassionate entry requirements or who hold a valid invitation to apply under the previous humanitarian requirements. The compassionate entry exception criteria sets out exceptional family and medical-related reasons for travel, and confirms that a humanitarian crisis occurring outside of New Zealand is not relevant to the determination of a request to travel to New Zealand.

3. Failure to grant residence visas under the humanitarian exception.

The Court also discussed the fact that Immigration Instructions in relation to border entry contemplated an exception to allow entry for humanitarian reasons at Y4.50(c)(i). This exception and its relevance to the appellants was not considered at all, even though they had a compelling case for entry based on their circumstances in Afghanistan.

Impact of the judgement on application processing

The High Court decision is significant and Immigration New Zealand reacted quickly to address the outcomes and, in particular, to announce the entry of first-time resident visa holders and the resumption of processing of offshore residence applications. However, we suspect the resumption of such processing is easier to “announce” than to actually implement in practise. With significant INZ resources now processing 2021 Resident Visas it is difficult to see how INZ can be in any position to follow through on its announcement and to actually process the significant number of offshore residence applications.

Link: INZ media release