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*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.

 

The immigration Minister announced today the Government has decided to reopen the Parent resident visa category in early February 2020 with new requirements. The first selection is scheduled for May 2020. In the meantime, the category will temporarily close from today, 7 October 2019. This means that INZ will not accept expressions of interest (EOIs) from this date.

When the category reopens, 1,000 residence places will be available annually under the category.

Other changes from the current Parent resident visa criteria include:

  • Tier Two of the category will be removed
  • the settlement funds and the guaranteed lifetime income financial eligibility criteria will be removed
  • the new financial requirements for the Parent resident visa can only be met through the income of the sponsor and their partner. Here are the new financial requirements based on a median salary of NZ$53,040:
Expected income thresholds
1 sponsor for 1 parent NZD $106,080 2 times the median salary
1 sponsor for 2 parents NZD $159,120 3 times the median salary
Sponsor and partner  for 1 parent NZD $159,120 3 times the median salary
Sponsor and partner for 2 parents NZD $212,160 4 times the median salary
Guaranteed lifetime income of 1 applicant or for a couple Not available in new parent category
Settlement funds Not available in new parent category
  • sponsors will be required to provide evidence of their annual income through Inland Revenue tax statements, and that they’ve met it for two out of the three years before the application is lodged, and
  • the sponsorship period will be formally aligned with the New Zealand Superannuation residency eligibility requirement.

 Existing EOIs in the queue under the Parent Category

People with EOIs in the system will be emailed to inform them of the changes and invited to either update their EOI or withdraw it. People who withdraw their EOI will be eligible for a fee refund.

When the Parent Category reopens, EOIs will be selected in date order based on the date INZ originally received them (regardless of whether they were submitted under Tier One or Tier Two).

It is estimated that more than 5000 EOI’s are sitting in the pool with the likelihood that at least 80-90% of these will not qualify under the new rules, and will be a bitter pill to swallow considering many have been waiting for such a long period of time. The offer of a refund will be little consolation for the loss of the opportunity of family reunification.

Today’s announcement bears the hallmarks of the challenges face by a coalition government. It has been clear for some time that the Labour party is family orientated and wanted to reopen the category but will have received significant push back with NZ First who effectively pressured the previous National Government into placing a temporary hold on the category in the first place. Increasing the required minimum salary for sponsors to the levels announced will no doubt have been at the direction of or to appease NZ First to ensure the numbers of eligible applicants was as low as possible, their compromise in allowing the category to reopen. There has already been significant condemnation sighting the elitist and unfair nature of the changes, this could certainly not bode well for Labour within the all important migrant electorate in the coming election year.

Conversely for those that do qualify, there will be great relief that there is now light at the end of the tunnel and they can finally make future plans for their parents, the uncertainty of the last 3 years has left so many families in limbo. What isn’t quantifiable is how many highly skilled migrants has New Zealand lost over the last 3 years whilst the category was closed. either those already working in New Zealand that have decided to leave or those who chose not to come at all. At least there is now clarity for all to make informed decisions for their families futures.

If you wish to find out more about this category and your potential eligibility please do not hesitate to get in contact with me [email protected]

The number of people who can be approved under the parent residence category is limited to 4,000 per immigration year (July to June). There has always been overwhelming demand for parent residence places and the previous parent policy was stopped in May 2012 when this demand led to processing times being extended to several years.

In July 2012, INZ made significant changes to the parent residence category, which included introducing a new two tier qualification system for parents of New Zealand residents and removal of the Adult Child/Adult Sibling category. Applications that had previously been submitted under the old instructions were initially “held in limbo”. However we are now seeing INZ actively processing these applications and expect that most of the old family applications will be finalised in the current immigration year, with only those submitted just before the policy was stopped being carried over to the July 2016 year.

The new two Tier system categorises parents as Tier 1 or Tier 2 applications with priority given to Tier 1 applications, and historic old policy applications, to fill the annual quota. All applicants must be sponsored by an adult child who has held New Zealand residence, and lived in New Zealand, for at least 3 years. In addition Tier 1 applications must include evidence of either the sponsor’s income or parents’ income/assets sufficient to satisfy the required financial support criteria.

The current parent residence category requires a hard copy expression of interest (EOI) to first be submitted by eligible applicants. EOI’s are then held in a queue and selections are made every 3 months in February, May, August and November. The number of EOI’s selected is varied in each selection draw to align with the number of residence approvals required to achieve the annual 4,000 people quota. Tier 1 EOI’s are selected based upon the order they have been submitted with the oldest selected first. Technically, any quota shortfall will be made up by Tier 2 applicants, however due to the volume of EOI’s being submitted under Tier 1, no Tier 2 EOIs (which have lower financial support criteria) have ever been selected – and we do not see any possibility that this will ever change.

In the most recent EOI draws approximately 650 EOI’s have been selected, comprising some 1100 applicants (this number depends on whether the EOI is for a parent couple or single parent). In the latest draw, on 16 May 2016, all Tier 1 EOI’s submitted on or before 13 August 2015 were selected (a total of 606 EOIs representing 1,112 people), leaving 2,973 EOI’s remaining in the EOI pool. The size of the EOI pool is growing at each draw, and given that approximately 650 EOIs are, on average, being selected each time this means that well over 1000 new EOI’s are being submitted every 3 months. Consequently, we estimate that EOIs now being submitted will not be selected for another 12+ months, and it is likely this timeframe will only get longer given the continuing demand for parent residence as more children become eligible sponsors.

If you are considering applying under this category or are considering sponsoring your parents, we strongly recommend seeking professional advice. Firstly, to assess eligibility and secondly, to see if it is possible to submit an EOI in advance to secure a place in the EOI queue.