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5 May 2020

NZ Govt’s Draft Bill to give Unfettered Visa Powers

Parliament has today had its first reading of the Immigration (COVID-19 Response) Amendment Bill which, if passed, will grant a range of time-limited visa powers aimed at addressing Covid-19 ‘challenges’ in the context of immigration.

There are eight time-limited powers proposed, with those powers being as follows:

  • Impose, vary or cancel conditions for classes of temporary-entry visa holders
  • Vary or cancel conditions for classes of resident-class visa holders
  • Extend the expiry dates of visas for classes of people
  • Grant visas to individuals and classes of people in the absence of an application
  • Waive any regulatory requirements for certain classes of application
  • Waive the requirement to obtain a transit visa
  • Suspend the ability to make applications for visas or submit expressions of interest in applying for visas by classes of people
  • 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)

The purpose of these changes is to temporarily address limitations under the Immigration Act 2009 to make adjustments to visas or concessions, en masse.  The announcement of this bill comes with assurances that it is intended to be utilised only to benefit migrants, and that “robust” controls will be in place to ensure this.

The objectives here are clear. It is to allow for sweeping measures to address issues such as;

  • migrants being offshore with visas or entry dates that are expiring without them having the chance to utilise or activate those visas,
  • resident visa holders overseas who run the risk of their travel conditions, and thus their resident visas, lapsing without being able to lodge a variation to prevent this,
  • make it possible for applications to be lodged without all mandatory documents included (where those have been unobtainable due to COVID-19), and
  • further extend the existing September extension to avoid a bottle-neck of applications that cannot be processed before migrants are forced onto interim visas that would potentially see them having to cease working,

While that is all well and good, the haste with which this bill is being pushed through means it cannot possibly be ‘robust’, as it has not been subjected to sufficient scrutiny from all stakeholders; stakeholders who are able to make recommendations based on practical insights that policy makers will never have.

We have already seen INZ pushing through rapid policy pursuant to the Epidemic Management Notice, and the gaping holes identified as soon as attempts were made to apply those rules in practice should have been sufficient warning that changes to immigration policy cannot be rushed. Partners of New Zealanders were given less rights to return to New Zealand than partners of visa holders. Interim visas were automatically extended but in doing so, prevented access to other options to try and regain work rights, leaving migrants in limbo for 6 months with only visitor visa rights and no ability to support themselves, leave, or rectify the situation. The list goes on beyond these two examples and with this Bill set to make it easier for further, ad-hoc, policy to be released, migrants and employers would be justified in being concerned that future decisions will continue to be made with (based on what we have seen over the past 6 weeks) little to no vetting or control measures in place.

Of particular concern is the potential for the Minister to suspend the ability to apply for visas of a certain type, or submit expressions of interest, for periods of 3 months at a time but which can be rolled over. The draft bill suggests this will be utilised to stop people overseas from making applications while they cannot travel to New Zealand, but with certain residence EOI’s currently on hold until further notice irrespective of the location of the applicant, and residence application wait times ballooning even before the emergence of COVID-19, that does not quite ring true. It seems far more likely that this power may be utilised to achieve two other objectives;

  • As a mechanism to allow INZ to get their wait times under control, at the expense of migrants being able to apply for residence within what may be a limited window of eligibility for them to do so (where age and pay rates in particular may be a deciding factor).
  • To close off categories of visa streams so as to give now unemployed New Zealanders a go at jobs currently held by migrants.

While the exercise of these powers is controlled in that they can only be utilised to contain or mitigate the outbreak of COVID-19 or its effects, the unemployment of New Zealanders is undoubtedly one such effect these powers will be exercised to mitigate. And while we would have all anticipated that the ability to secure essential skills work visas will be severely impacted in the coming months due to them being contingent on a labour market test, there are no limitations on these proposed powers being applied to turn the tap off on other categories, such as the Skilled Migrant category or the work to residence categories, where labour market testing as previously had no place, to force employers to hire New Zealanders.     

At present, the draft bill is proposing to provide these powers to the Government for up to 12 months, suggesting that this is very much a temporary measure, designed to ensure that INZ can deal with particular groups of individuals promptly, and efficiently, to avoid bottlenecks and large swathes of migrants suddenly becoming unlawful. The message is that this is a good faith measure. However it is one with the potential for abuse and to achieve political agendas, with 12 months being ample time for damage to be done, and for many migrants and employers to be materially disadvantaged.  

Only time will tell as to whether and in what form this Bill is passed, but we would certainly hope that it will fetter the discretion proposed to ensure that our migrant workforce are not unfairly disadvantaged or part of the political fallout of the government’s COVID-19 response. 

For more information, or for personalised advice on your immigration needs, contact one of the team.