Pacific Legal’s successful complaint against Immigration New Zealand+

Pacific Legal recently raised concerns at situations where partnership temporary work visa applicants were being told by Immigration New Zealand to overstay after the expiry of their interim visas, because of processing delays. One of our clients received an email from Immigration New Zealand which invited them to remain unlawfully while they waited for a partnership work visa to be processed. This advice clearly contradicted the purpose of the interim visa regime which is to maintain people’s lawful status while they waited for their visa applications  to be processed

As a result of our upheld complaint and media comments, Immigration New Zealand apologized. Immigration New Zealand acknowledged that this standard email was contrary to the intention of the Immigration Act 2009 and agreed to issue 3 month visas for 108 others who had become unlawful during the processing of their partnership visas.

See the full article “Immigration NZ say sorry to 108 people it made overstayers with delays” available on this link.

Interim are a very important part of the immigration system. It’s worth taking a moment to understand their place in the system.

Interim visas: what are they?

Since the Immigration Act 2009 came into force in 2010, interim visas were issued for people applying inside New Zealand for temporary visas to allow them to remain lawfully in New Zealand while they waited for the outcome of their new visa application..  it provided a bridge to allow applicants to stay lawfully in New Zealand.

Prior to this whether an applicant could remain lawful and continue to work in New Zealand depended on them getting the application in quickly enough to be approved before the current visa expires.

When are they issues? Do I apply for one?

You don’t. They are issued electronically after you lodge your temporary visa application. Usually, they are notified shortly before the current visa expires.  They then come into force at the moment your current visa expires if Immigration New Zealand has not finished processing your new application.

Are they issued in any other situation?

Yes if your temporary visa is declined while you are onshore you will receive an interim visa for 21 days which allows you to depart lawfully or to seek reconsideration within 14 days.

Are they always issued?

Most of the time they are automatically issued but for high risk cases, Immigration New Zealand may withhold an interim visa. If you don’t receive a notice before your current visa expires you should ask.

How long do they last?

An interim visa while waiting for an application lasts for up to 6 months or until when the decision is made on the actual visa application- whichever comes soonest.

Can they be extended?        

Immigration New Zealand previously extended interim visas manually on a case by case basis for delayed processing but recently has declined to do so. This has become an acute problem for partnership and other visa classes where average processing times have crept up to as much as 5 months.

The 6 month period was adequate for virtually all application types prior to the 2017 restructuring of Immigration New Zealand.  On the few occasions that complex applications took longer than 6 months to determine, Immigration New Zealand would manually issue a further interim visa.  Under Immigration New Zealand’s “rebalance” approach it is currently not extending interim visas.  Processing times for some work visas have ballooned out to 5 months placing applicants and employers under tremendous pressure.

I have obtained an interim visa what are the conditions?

These very much depend on what kind of visa you were previously on and the one that you are applying for.  If your last visa was a visitor visa but you are now changing to a work visa, you will remain on visitor visa conditions while the work visa application is being processed.

Likewise, if you are changing from one kind of work visa to another kind of work visa or to an entirely different employer, your interim visa is likely to have only visitor conditions.  That means no studying for more than 3 months and certainly no work is permitted.

On the other hand, if you are applying for a new work visa for the same employer or in the case of a partnership application for a partnership work visa when you have been on one already before conditions of the existing visa will continue with your interim visa until a decision is made on your work visa application.  This is a great comfort to employers and employees who are simply extending visas for the same role.

Any other conditions for interim visas?

There are no travel conditions which means that you cannot leave and re-enter New Zealand.  If you leave New Zealand during your interim visa you will lose your interim visa, and you must wait for the outcome of the visa application from offshore.

The holder of interim visa cannot apply for a visa of a different type while onshore.  This means that only the application you already have with Immigration New Zealand will be considered and not a different application at that point.  If you already have a residence visa application lodged it can still be processed. However interim visas are only granted between temporary visas.

Important take away from the above

It is more important than ever to lodge your visa application early so that there is sufficient time for it to be finalised before your current visa expires.  This is particularly the case where you are moving to a new role for an existing employer or to an entirely different employer.

Get competent legal advice on the role and if it’s within the same employer how much of a change it is.  More time is needed in those instances.  We also find that clients sometimes forget when they reach 3 years of temporary visas including time already spent in New Zealand to obtain a new e-medical certificate and a new police certificate at least from their home country.  Leaving out important items like these risks your application being “kicked for touch”  (“refused failed lodgements”) from when you first lodge it.

We can help

Pacific Legal is an awarding winning immigration Law firm. We have many years’ experience in providing excellent services to employers and applicants seeking work visas. We will be providing regular updates through our blogs and on our website.

Please contact me via email (Richard.Small@pacificlegal.co.nz or office@pacificlegal.co.nz ) by phone 0800 722 534 or through our website (www.pacificlegal.co.nz) for further information.  My colleagues Diana Bell, Senior Associate and Thomas Tran, Senior Solicitor are also very experienced in this area and would be delighted to assist. We provide initial free information to employers.