Business Investments post covid-19
Business and investment opportunities still open: Update: June 2020
July 1, 2020
Covid-19 social distancing
COVID-19: Update 11 September 2020
September 9, 2020

COVID-19: Update 4 – Level 1: June 2020 Onshore Immigration

Onshore Work Visa Application

For those in New Zealand: Have a plan

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. As at 25 June, Immigration New Zealand had not reached any firm decisions about what to do with those visa applicants but the indications are of a tougher approach because of increased unemployment.

There is an anti-immigration mood afoot.   Public comments from the Prime Minister and others suggest migrants who lose their jobs and cannot support themselves are the responsibility of their respective Embassy or High Commission and should be returned to their home country. Although the immigration industry and others are engaging with Immigration New Zealand to provide migrants with advice and support it seems clear that there will be many who would not meet the new tough requirements when they come to renew their visas.

Immigration New Zealand as at 25 June had 97% of its staff back on deck. However, there is a considerable backlog of work from the lockdown. Applicants wanting to extend visas are encouraged to apply early. However where an application is marginal and may be quickly refused the timing of the application has implications for the post refusal interim visa.

We are noticing Compliance activity increasing and we understand that there are plans to encourage voluntary repatriation or where that is unsuccessful deportation action for those without visas leading up to and after 25 September 2020.

Have a supportive employer

With tough labour market tests and new questions about the financial sustainability of employment employers are being asked to provide crucial information on a very short turnaround for information about this see here.

If a visa is refused: time is of the essence

Those who cannot successfully extend their visas will have

  • 14 days within the 21 days of their interim visa (post refusal) to seek reconsideration from immigration New Zealand. However if the decision is based on the labour market test successful reconsideration is unlikely.
  • 42 days from the expiry of their visa to appeal on humanitarian grounds to the Immigration and Protection Tribunal. The standard for such appeals is very high

Pacific Legal has considerable expertise in both of these areas and is able to advise you on them

 My employer accepted the wage subsidy will I still get a visa?

We have been proactive for a number of employers and employees who have been caught 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.

Work visa holders on reduced wages where employer applied for a 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. As it 25 June 2020 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

Immigration (COVID-19 Response) Amendment Act: changes ahead

This new legislation came into force on 13 May 2020. It gives Immigration New Zealand and its Minister wide-ranging powers 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.

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…”

[As at 13 May there were] “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.

As at 25 June 2020, at an industry webinar immigration New Zealand senior managers indicated that the first use of the new legislation was imminent.


Processing priorities also toughened

 As at June 2020 all processing of offshore temporary entry applications remained on  hold

In May 2020 immigration New Zealand announced its onshore visa processing priorities: 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.


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.

Pacific migrants

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. Most recently the Tongan government has indicated that it will accept 50 repatriated citizens per week. https://www.rnz.co.nz/international/pacific-news/419778/tonga-completes-another-repatriation-exercise

Note: This information was up-to-date as of 24 June 2020 but may change at short notice. Further updates can checked at www.immigration.govt.nz.
The above is general information only. Every case is different. For advice in your case we encourage you to contact us

Contact us for an appraisal

Clients need to be realistic about expectations and timeframes at this time but with the right information, we can confidently assess your case and give a realistic appraisal Contact us for an assessment of your case.  Please note that initial appraisals will be online and we may need further details from you.

 

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