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5 May 2020*Update: this Bill has now been through the select committee process and was passed on 15 May 2020. The Bill has been modified and now contains explicit safeguards designed to ensure that the new powers cannot be used to materially disadvantage the class of visa holders concerned. Exactly what the Government will do with these powers is yet to be announced.*
The Immigration (COVID-19 Response) Amendment Bill 2020, introduced to Parliament this week, is intended to give the Government greater flexibility and capacity to respond to the immigration challenges posed by the COVID-19 outbreak.
The powers set out in the Bill are specifically for the purposes of addressing the COVID-19 outbreak and because the powers proposed are extraordinary, and only for a specified purpose, the powers are time-limited. It is expected the Bill will pass into law by 15 May 2020.
The eight powers the Government is proposing to introduce into the Immigration Act 2009, are:
- the power to impose, vary or cancel conditions for classes of temporary entry class visa holders
- the power to vary or cancel conditions for classes of resident class visa holders
- the power to extend the expiry dates of visas for classes of people
- the power to grant visas to individuals and classes of people in the absence of an application
- the power to waive any regulatory requirements for certain classes of application
- the power to waive the requirement to obtain a transit visa
- the power to suspend the ability to make applications for visas or submit Expressions of Interest in applying for visas by classes of people, and
- the power to revoke the entry permission of people who arrive either on private aircraft or marine vessels (to align them with people who arrive on commercial flights, who can already be refused entry).
There are several reasons for the Government to introduce this legislation with urgency.
There are some 350,000 temporary visa holders now in New Zealand who cannot travel home, and this situation may last for some time. Immigration New Zealand already has long visa processing queues and has had, and will continue to have for the foreseeable future, significantly reduced visa processing capability. Immigration New Zealand has a significant visa bottle-neck that is only going to get worse and something needs to be done to address this.
The legislation will enable large numbers of visa holders and applicants to have their visa situations addressed unilaterally, which is a much quicker, more efficient and cost-effective method than having to deal with many thousands of individual visa applications. And, in order for the processing queues not to keep getting longer, the Bill looks likely to stop some new visa applications, potentially visitor and work visas, from being lodged for offshore applicants. This makes sense as these people are currently unable to enter the country anyway until border restrictions are eased.
This Bill is a necessary step to enable swift changes to immigration settings during this extraordinary time and represents a genuine attempt by government to help migrants who are currently in a vulnerable and uncertain visa situation. Our understanding is that these powers will be used for the benefit of migrants, and not to their detriment, and on this basis Pathways’ generally welcomes the legislation – subject as always to the policy detail.
It is not clear at this stage exactly what these powers will mean for particular visa holders or applicants however we have formed the following preliminary views based on our reading of the situation. It should be appreciated that these are only our views on potential outcomes of this Bill at this time and readers should form their own views on what the Bill will mean for them.
The power to impose, vary or cancel conditions for classes of temporary entry class visa holders
Our view is that this power is intended to relax employment conditions and to allow the redeployment of migrant workers to a different employer or location. We are hopeful that this could lead to open work visas conditions for existing work visa holders or, at least, more flexible work visa conditions – possibly for up to 6 months or longer.
Many work visa holders have either lost their jobs or have had their wages and/or work hours reduced, all of which means they are technically in breach of their visa conditions. Varying the work visa conditions could, and should, at least alleviate these current visa breaches. This would be good news for employers also who are equally desperate for stability at this time.
This power could be used to “revisit” already approved offshore work visas which were approved on the basis of labour market conditions at that time. The labour market is now changing and the job may no longer be available or it can now be filled by a New Zealander. Offshore low-skilled work visa holders would appear to be most at risk here.
It is hoped that this opportunity is taken to also address the situation with work-to-residence visa holders whose remuneration has fallen below the policy threshold through no fault of their own.
The power to vary or cancel conditions for classes of resident class visa holders
Our view is that this power should extend the timeframe in which an offshore resident visa holder has to enter New Zealand for the first time – as these people cannot currently enter New Zealand and are at risk of losing their resident visa status.
The power to cancel resident visa conditions most likely relates to Section 49 of the Immigration Act and could be applied to those conditions which require visa holders to work in specific employment for 3 or 12 months. It could potentially also be applied to Investor Residence visa holders who are required to spend a designated number of days in New Zealand but have been unable to do so due to travel restrictions.
It is interesting that in the introduction of the Bill mention was made of the 20,000 Skilled Migrant Resident visa holders who obtained residence since April 2018. There is no obvious reason to mention this unless thought is being given to using the Bill’s powers to, potentially, extend the travel conditions of Resident Visa holders or even transition these holders to permanent residence.
The practical application of this power remains to be seen.
The power to extend the expiry dates of visas for classes of people
This proposed power could be used to address the situation where an approved visa holder is unable to enter New Zealand by the first-entry date stipulated by their visa. However, this still does not get these people through the border and any extension will need to be aligned with some relaxation of the current border restrictions and we do not know as yet when this will happen.
Another potential application could be to provide a further extension to temporary visa holders in New Zealand, if travel restrictions remain and people cannot access flights to get home. In early April Immigration New Zealand was able to unilaterally extend the temporary visas of some 85,000 visa holders in New Zealand whose visas were expiring between 2 April 2020 and 9 July 2020. All these people had their visas extended to 25 September and this action was enabled under the Epidemic Management Notice issued by the Government. It is pragmatic and cost effective for the Government to manage significant numbers and types of visas in this manner and in conjunction with its COVID-19 management and planning.
The power to grant visas to individuals and classes of people in the absence of an application
This power affords flexibility to accommodate unusual or urgent situations. A specific intention of this power is to allow the grant of visas to persons who are unable to submit an application, for example, due to sickness.
The power to waive any regulatory requirements for certain classes of application
This would allow INZ to waive mandatory application requirements which may be difficult to meet in the current circumstances. Such requirements could include immigration medicals, police certificates and other mandatory documents which simply cannot be obtained at present. The question remains whether an applicant’s SMC Invitation to Apply (ITA) expiry date will be extended. If the expiry date is not extended can the application be accepted for lodgment with an automatic waiver for particular lodgment requirements or will each applicant need to first obtain a waiver approval from INZ?
The power to suspend the ability to make applications for visas or submit Expressions of Interest in applying for visas by classes of people
The apparent purpose of this power is to stop applicants from lodging new applications. The main reason for this potential outcome is that INZ does not have visa processing capability currently and it does not wish to see the visa queue grow further until it has this capability – which may not be for some time. This power also accommodates the situation that offshore applicants are not able to actually travel to New Zealand and there is no point in them making visa applications until the border is opened to allow their entry.
There are many possible applications of this power, and the full extent of it is not clear.
In the immediate short term, it could be that INZ will not accept any new visitor visa applications or low skilled work visa applications from offshore applicants. EOI draws for SMC and Parent Category visas have already been suspended, and it is likely, under this power, that EOI submissions could cease to be accepted in these categories for up to 3 months (at a time). Again there is no point in allowing an EOI to proceed to a residence invitation if an applicant cannot provide the mandatory application documents.
We expect that Investor 2 Category EOIs will be unaffected given the clear need for economic stimulation in the wake of COVID-19.
Until more information becomes available, it is not certain exactly what the implications of these proposed powers will be on immigration policy and visa processing but there is no doubt they will be significant and far-reaching – and in the main, will address the current uncertainties of many visa holders.
One thing we do know is that there will be huge financial implications for Immigration New Zealand. It would have lost $20 million or more in foregone application fees from its temporary visa extension action in April and this is likely to rise substantially with actions resulting from this new Bill.
The focus of the Bill is largely on the temporary visa situation, which is understandable. The pity is that there are some 20,000+ residence applications sitting in the queue to be processed. These are for individuals and families whose lives are on hold waiting for the long term security a resident visa will give them to plan and get on with their lives in New Zealand. This empowerment to buy a home and to actually spend money to build their future is exactly the type of impetus New Zealand needs at this time to get the economy moving. Alas this may be just a bridge too far!
Information about the Select Committee process, including a copy of the Bill is available on the New Zealand Parliament website.
If you would like to discuss what these proposed powers could mean for you and your immigration journey, please contact Pathways to speak with a licensed immigration adviser.