Immigration Law
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December 9, 2019
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March 19, 2020

Partnership-based visas: meeting the living together test

Approved Immigration New Zealand application form

Approved Immigration New Zealand application form with rubber stamp

Recently there have a lot of stories about declined partnership-based visa applications in the media. Discretion was removed for visitor visas for arranged marriages and other genuine relationships where the couple, for religious, cultural or other reasons had not yet lived together. Pacific Legal joined others in advocating for a review.

Eventually, a more flexible approach was restored. 800 applicants denied visas May 2019 were invited to re-apply for visitor visas. Several hundred visas have been granted. However, it is important to understand that these are not “partnership” visas.

A genuine and stable relationship

As the name suggests the key for the grant of a visa of this type is the recognition of a genuine and stable partnership between the visa applicant and the sponsor who must be a New Zealand citizen or permanent residence.  It is the responsibility of the couple involved to satisfy immigration officers that their partnership meets these requirements.

The language of immigration instructions is deliberately written in an ambiguous and broad manner for two reasons:

First, it prevents immigration fraudsters from knowing exactly what evidence or documents they must submit. As other categories have been reduced Immigration New Zealand has increased its vigilance for partnership fraud.

Second, it allows immigration officers to exercise their discretion in recognising whether a partnership is genuine and stable. Clearly, the former serves the purpose of the visa system, but the latter makes it incredibly hard and sometimes even impossible for genuine couples to obtain partnership-based visas.

Living together

One of the main reasons Immigration New Zealand to refuse a partnership as genuine and stable is that the evidence does not show the couple have lived together (the “living together” test).  Engagement visas are long gone. Whether married or de facto, all relationships are tested by the time the couple can prove they have spent living together under one roof.  For residence 12 months is required. For temporary visas, no minimum time is required but we are increasingly finding 3 or so months to be needed.

This test is particularly hash in cases where the sponsor lives in New Zealand and the applicant lives offshore and cannot get a visa. Short periods apart can be allowed for work e.t.c but the basic rule is that applicant and the sponsor can only live together if they live in the same country. This puts great stress on many couples.

If the time they spent together on a short-term basis, this period may not be considered as living together but holidaying or travelling together. If the couple chooses to live together on a long-term basis outside New Zealand then the New Zealand sponsor faces the tough choice between giving up the partnership or giving up his/her commitments in New Zealand for example employment commitments.

The living together test is just one of the tests in the partnership-based visa system. Because Immigration New Zealand has applied the strictest evidential requirements for partnership-based visa applications, obtaining a partnership-based visa is really the challenge of a lifetime for couples even both the applicant and the sponsor are in New Zealand.

Delays

All partnership visas are centralized to the Hamilton Office of Immigration New Zealand. They have been struggling to recruit and retain enough staff to cope with the workload. When we visited this branch on 13  February 2020 we were told over a third of the officers had 6 months or less experience. Of 7200 temporary visa applications, just 2000 were being processed, with 7 months delays for a work visa. Of 6000 residence cases on hand 1500 being processed. Some partner applying from within New Zealand are spending up to 9 months without work rights while they wait for work visas (see our previous blog about interim visas). Most interviews even for Auckland based applicants are in Hamilton a 260 km return trip away.  Partnership residence applications are now the lowest priority for processing, second only to parent category applications.

We can help

Pacific Legal is an awarding winning immigration law firm. Our lawyers have more than 30 years of combined experience in practising immigration law. We have an established reputation for obtaining the desired outcome in difficult cases in all visa categories.

We also advise unlawful clients. If you are unlawful in New Zealand for any reasons, it is also worth contacting us to have your options assessed.

We travel to other cities to meet our clients when the need arises. Our first consultation is free (20 minutes). Please contact us by phone 0800 722 534 or through our website (www.pacificlegal.co.nz) for further information.  Our Director, Richard Small and Senior Solicitor, Thomas Tran would be delighted to help you.

 

Thomas Tran/Richard Small

 

 

 

Richard Small
Richard Small
Director Pacific Legal Ltd