Covid-19
COVID 19: UPDATE 2
March 23, 2020
Immigration and Employment law in New Zealand
Repeat Labour Market tests?
May 27, 2020

Covid 19: Update 3

Covid-19

New Zealand moved to Alert Level 2 on Thursday 21st May 2020

Our border remains closed for non-residents and citizens with very few exceptions.  The border closure could be for 12 months or more. Urgent changes have been made to the Immigration Act 2009 enacted by Parliament on 13th May 2020. These changes give the Minister of Immigration and officials wide powers to suspend, modify or make exceptions to various visa categories and requirements.

All major offshore offices of Immigration New Zealand have remained closed. The changes may also affect those already in New Zealand through delay or if work visa conditions are unable to be met through redundancy etc. We contributed to an industry submission on this legislation which added safeguards to it.

At Alert Level 2, Immigration New Zealand has reopened its offices within New Zealand. However, its offshore offices have remained closed.  It has also announced its priorities for visa processing.  Those with high incomes and those within New Zealand will be prioritised.

 

We can help!

Pacific Legal’s experienced team has decades of experience in hard cases and excellent communications with senior Immigration New Zealand management.  Clients need to be realistic about expectations and timeframes at this time but with the right information we can confidently assess you case and give a realistic appraisal. We’ve ensured services are maintained for our valued clients and employers at Alert Levels 3 and 4.   Our dedicated team are available throughout the business week remotely and also at our Newmarket office.

We have successfully argued for exceptions in a number of cases.  We have been able to support employers to confirm flexible working conditions for their skilled staff who may need to travel to new locations but are concerned at breaching of the terms of their visa.

Our Director, Richard Small has expressed public concern at the low number of Immigration New Zealand staff able to work from home during Alert levels 3 and 4.  This added to existing backlogs and delays.

 

For those in New Zealand

Those with temporary visas due to expire between 2nd April and 9th July 2020 automatically had their visas extended until 25th September 2020 on the same terms as their current visa.

A picture has started to emerge of tougher labour market tests for essential skills and skilled migrant residence applicants. With high levels of unemployment, the labour market test will be tighter and applicants for essential; skilled visas onshore applicants who applied pre-Covid19 may well be asked to do a fresh test.

Public comments from the Prime Minister and others suggest migrants who lose their jobs and cannot support themselves are the responsibility of their respective High Commission or Embassy and should be returned their home country.

We have been proactive for a number of employers and employees who have been caught in a  in the once in a hundred-year pandemic situation of Covid 19.  We have responded to concerns about employers reducing wages temporarily for when accepting the Covid 19 wage subsidy.  We have advocated for a no disadvantage approach to people with invitations to apply so that the invitations are extended by at least the 7 weeks of level and 3 and 4 lockdown. We have also supported calls for temporary visas for those caught without visas during the period of the epidemic notice. We have had success in each of these areas in individual visas.

Pacific Legal at Level 2

New Zealand moved from Alert Level 3 to Level 2 on Thursday 14th May 2020.  Our office is open by appointment for essential meetings.  While some staff will continue work from home at times we will ensure we have staff on site.  While we check phone messages through the day, email (office@pacificlegal.co.nz) is often the best form of contact. Essential face-to-face meetings are allowed at Alert Level 2, but by appointment only and adhering to physical distancing rules. Meetings will be for dropping off essential original documents

Other meetings will be via telephone, Zoom, Skype etc.  The Governments Advice is regularly updated. We have the systems and plans in place to assist at any alert level. Contact us on our email enquiry form below.

We look forward to assisting you during this difficult time.

 

 

Additional information links:


Immigration (COVID-19 Response) Amendment Act

The Bill’s summary states that it “aims to ensure that the Government can respond appropriately and efficiently to the COVID-19 outbreak by providing additional flexibility in the immigration system.

 It does so by introducing 8 time-limited powers, as follows: 

  • the power to vary or cancel conditions for classes of resident class visa holders:
  • the power to impose, vary, or cancel conditions for classes of temporary entry class visa holders:
  • the power to waive any regulatory requirements for certain classes of applications:
  • the power to grant visas to individuals and classes of people in the absence of an application:
  • the power to extend the expiry dates of visas for classes of people:
  • the power to waive the requirement to obtain a transit visa in an individual case:
  • the power to revoke the entry permission of a person who has been deemed by regulations to hold a visa and to have been granted entry permission:
  • the power to suspend the ability of classes of people to make applications for visas or submit expressions of interest in applying for visas.

Some can only be exercised by the Minister of Immigration. All the powers are also time-limited and will be automatically repealed 1 year after entering into force.”

The Minister of Immigration Hon Iain Lees Galloway  in his statement on 13 May 2020 has given some reassurances but has also indicated how many people will be potentially affected:

“We have made it clearer that we won’t be revoking visas or suspending onshore applications. Any special direction made under the amended Act will not disadvantage visa holders. Further, we have worked hard to ensure that the Act has the appropriate safeguards in place and that it is fit for purpose…”

Currently there are approximately 350,000 temporary visa holders onshore.

  • Over 200,000 have work visas whose visa conditions may need to be varied as we respond to the effects of COVID-19.
  • Over 70,000 are student visa holders whose visa conditions may need to be relaxed, to enable them to change their course or work extra hours until education providers are able to reopen.
  • Over 56,000 are on visitor visas, who may need to have their expiry date extended if flights out of New Zealand continue to be unavailable.
  • Over 20,000 skilled migrant resident visa holders are onshore (where their residence start date was on or after 27 April 2018).

It remains to be seen how these powers will be used but it is likely that applicants

offshore who cannot get to New Zealand due to border closures may have their applications suspended.  Various expressions of interest have already been deferred.

Pacific Legal Director, Richard Small played a role in a joint submission to the  Select Committee. There was a purpose section added and a provision that the bill cannot be used to the detriment of any applicant. However, the argument is that with the border closed, applications from offshore in certain categories are pointless for the time being.


On 13 May 2020 Immigration New Zealand announced:

In terms of residence class visa applications, priority will be given where the applicant is in New Zealand. For onshore applications priority will be given as below:

  • For Skilled Migrant Category (SMC), priority will be given to applications with job offers where:
    • Applicants have an hourly rate equivalent to or higher than twice the median wage (currently $51.00 per hour or an annual salary of $106,080 or more);
    • Applicants hold current occupational registration where registration is required by immigration instructions.
  • For Residence from Work Category applications (Talent (Accredited Employer), Talent (Arts, Culture and Sport), South Island Contribution, Religious Worker and Long Term Skill Shortage List), priority will be given to:
    • Applications which include a job offer with an hourly rate equivalent to or higher than twice the median wage (currently $51.00 per hour or an annual salary of $106,080 or more);
    • Applications which include a job offer which requires occupational registration where occupational registration is required by immigration instructions.

Second priority will be given to residence class visa applications where the applicant is out of New Zealand.

In terms of temporary entry class visa applications, priority will be given to applications for critical workers to support the Government response to COVID-19 and for other temporary visa applicants that are in New Zealand.

It added:

Immigration officers retain the discretion to prioritise other applications where the circumstances of the application require particular urgency.

Applicants are strongly encouraged to apply online for eligible visas. Paper applications will take longer to process because of the reduced capacity of staff in onshore offices. There will also be an increase in the time and effort required in processing some visa application types due to additional requests for information or comment being required.

In terms of temporary entry class visa applications, priority will be given to applications for critical workers to support the Government response to COVID-19 and for other temporary visa applicants that are in New Zealand.


Samoan citizens

There has been a pause in deportation action but the provision of repatriation flights to Samoa may be a trial of a wider approach of encouraging “self-deportation” of unwanted workers even self-deportation will leave a lifelong negative record for the migrant. Those who leave with deportation orders in place will owe a debt to the Crown for their considerable airfares and are unlikely to be able to return.  We do not think that this is a fair and proportionate approach

https://www.newstalkzb.co.nz/news/politics/winston-peters-tells-struggling-migrant-workers-you-should-probably-go-home/


 Work visa holders on reduced wages where employer applied for subsidy

We have also advocated that there be a reasonable approach where staff have accepted a 20% reduction in income on the understanding that the employer will endeavour to protect their employment for the 3-month period envisaged in the wage subsidy scheme, now possibly extended for another 2-months in some cases.

This has been a particular concern for talent visa holders who have a pathway to residence under the Residence from Work Category but who are required to maintain $79,500 annual earnings over a two-year period. We have raised this issue at the highest levels with immigration New Zealand. To date we have received general statement of principle that no one should be disadvantaged of but no concrete reassurances that the 20% reduction will not cost individuals their pathway to residence.


Extension announcement 

On 21 May 2020 Immigration New Zealand announced a 6 month extension for those issued invitations to apply under Investor 2 and Skilled Migrant categories between 1 November 2019 and 15 April 2020 from the usual 4 months to 10 months.

The “no disadvantage” principle should to apply to people who have received Invitations to Apply for Residence under various categories (for example  Samoan Quota or Pacific Access), fulfilling conditions under section 49 of the Immigration Act after grant of residence and approvals in principal which require additional documents or evidence or arrival into New Zealand by a certain date.

To date immigration New Zealand have told us that they will consider exceptions on a case-by-case basis but are unwilling to blanketly extend such invitations, approvals and conditions. During lock-down individuals could not access documentation, obtain a job offers, secure medical certificates or provide a range of other evidence. Given changes to employment post lock-down a reasonable approach is needed across all of these areas. We will continue to advocate for a fair and consistent approach.


 A compassionate approach to people without visas during the Covid 19 emergency

The joint submission of the Auckland District Law Society (ADLS); the New Zealand Association of Migration and Investment (NZAMI) and the New Zealand Association of Immigration Professionals asked the select committee considering the urgent amendment of the Immigration Act 2009 to include a 6-month visa be issued to all persons unlawful during the Covid 19 emergency to put them on the same footing as the automatic extension of temporary visa holders.  This would allow people to either appeal on humanitarian grounds to the Immigration and Protection Tribunal under section 207 of the Immigration Act 2009 or, if they had a pathway to residence, for example through partnership, to make that application.

Pacific Legal strongly supports such an approach.  A number of our clients have been supporting vulnerable relatives in lockdown whose vulnerability will continue at the lower stages of alert. Officials responded that this was out of scope for the Amendment Bill and that cases should be considered individually.  While a legislative change was not made, discussions are ongoing with New Zealand in a range of individual cases.

Richard Small
Richard Small
Director and Senior Lawyer | richard.small@pacificlegal.co.nz