IN CONFIDENCE
In Confidence
Office of the Minister of Immigration
Chair, Cabinet Economic Growth and Infrastructure Committee
Miscellaneous Immigration Policy Changes
Proposal
1
I propose a series of miscel aneous immigration policy changes to address irritants for
users of the immigration system.
Executive Summary
2
A review by the Ministry of Business, Innovation and Employment (MBIE) has identified
a number of irritants within the immigration system. The proposed changes are either
beneficial to users of the system or have only minor impacts. They can be implemented
by mid-2017.
3
There are twelve proposed changes, across a range of policies. Five of the proposals
require amendments to immigration regulations, the
Immigration (Visa, Entry
under the
Permission, and Related Matters) Regulations 2010 and the
Immigration (Carriers’
Information Obligations) Regulations 2010.
4
The proposed changes are:
Work-to-Residence and Residence-from-Work policies
Proposal one: extending the duration of employer accreditation under the Talent
(Accredited Employer) policy. A minor regulation amendment is required.
Proposal two: aligning the maximum age requirement for Long Term Skil Shortage
List policy with the maximum age requirement of other work-to-residence policies.
Released
Partnership visas
Proposal three: discontinuing the ‘partnership deferral’ policy for applications for
residence under the Partnership Category.
Proposal four: removing the seven-year limit when considering prior domestic
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violence or sexual offences of New Zealand partners wishing to support partnership
visa applications.
Proposal five: providing a pathway to residence for some long-term partners of New
Zealanders where the relationship has broken down and the family includes a New
Zealand born/citizen child or children.
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Low risk visitors
Proposal six: al owing international tourism tour escorts to enter New Zealand as
visitors.
Proposal seven: expanding existing visitor visa provisions for approved arts or music
festivals and for high-end acts to al short-term live performers.
Skilled/Business residence stream
Proposal eight: expanding character requirements for al applicants under the
Business stream to ensure compliance with employment and immigration law.
Regulatory changes (in addition to minor regulatory change in proposal one)
Proposal nine: removing the regulatory requirement to provide a passport or
certificate of identity in order for a visa application to be legal y made.
Proposal ten: ensuring that the immigration levy is payable on al ‘first residence
applications’, whether the application leads to a resident visa or a permanent
resident visa.
Proposal eleven: preventing circumvention of immigration health requirements.
Proposal twelve: updating the provision of passenger information requirements.
under the
Addressing irritants within the New Zealand immigration system to improve user
experience and system performance
5
MBIE identified that an area of focus for the 2016/17 immigration work programme was
to improve the operation of the immigration system, by fixing several operational policy
issues not otherwise captured by bigger policy projects.
6
Consideration was focused on discrete issues requiring Cabinet decisions, where the
proposed change was either beneficial to users of the system, or had only minor
impacts. MBIE took into account the fol owing limitations:
Released
a
the project did not consider issues that require fundamental policy changes, or
changes that do not align with the existing objectives of the policy
b
the resulting proposals should not pre-empt work already planned or underway,
and
c
changes should be able to be implemented within the coming year without
Official Information Act 1982
significant costs or substantial system changes.
7
Twelve proposals are being put forward. The majority of proposals address issues
across policies that include Work-to-Residence, Partnership visas, Visitor visas, and the
Skil ed/Business residence stream. Five of the proposals wil require changes to
immigration regulations.
8
In September 2016 Cabinet agreed to reduce the annual planning range for the New
Zealand Residence Programme (NZRP) and approved a range of policy changes to
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improve the overal quality of migrants being granted residence [CAB-16-MIN-0500].
The proposed changes in this paper are not expected to put pressure on the NZRP.
Work-to-Residence and Residence-from-Work policies
9
The first Work-to-Residence and associated Residence-from-Work policies were
introduced in April 2002 [DEV Min (01) 19/6]. They offered applicants (and employers) a
simple and quick work visa process, and a pathway to residence with a higher level of
certainty than the General Skil s residence policy in place at the time. They are stil in
place today, with the main categories being:
a
Talent (Accredited Employer) – focused on employer accreditation by Immigration
New Zealand (INZ), and a salary threshold1 as evidence of skil level
b
Talent (Arts, Culture and Sports) – intended as a subset of the above, replacing
the salary threshold with evidence of international reputation in a field of arts,
sport or culture, and
c
the Long Term Skil Shortage List (LTSSL) – focused on employment in areas of
skil shortage.
Proposal one: extending the duration of employer accreditation under the Talent (Accredited
Employer) policy
10
The Talent (Accredited Employer) policy al ows employers to hire migrant workers and
support work visas without going through the usual labour market test. Accredited
under the
employers range from central government agencies and District Health Boards, to
technology companies and firms in the hospitality industry.
11
To become accredited, employers must show that they:
a
are in a sound financial position
b
are committed to training and employing New Zealanders
c
have good employment and workplace practices, and
Released
d
have a history of compliance with al immigration and employment laws and
policies.
12
Accreditation costs $1,775 and is valid for 12 months. It can be renewed yearly, at a cost
of $500. INZ has the ability to rescind an employer's accreditation, with approval from
the Minister of Immigration, but has never exercised this power. Rescinding accreditation
could happen where INZ considers that the employer's conduct has created an
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unacceptable risk to the integrity of New Zealand's immigration or employment laws or
policies.
1 Visa applicants under the Talent (Accredited Employer) policy must earn at least $55,000 per annum to qualify for a work visa and
subsequently for residence. Applicants who earn at least $90,000 per annum at the time they apply for residence can get a permanent
resident visa immediately (others get a resident visa for two years before qualifying for a permanent resident visa).
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under the
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15
The 12-month duration does not reflect the low level of risk associated with these
applications over the past five years. I propose to extend the duration of accreditation
under the Talent (Accredited Employer) policy, to instead al ow:
a
an initial accreditation period of up to two years, and
b
renewal accreditation periods of up to five years.
16
Extending the accreditation period wil increase the risk posed by employers failing to
meet their obligations between assessments. To manage this risk, I propose that:
a
INZ develop an appropriate audit programme for accredited employers. Audits
can more effectively target high risk employers than shorter accreditation across
the board, and
b
INZ be able to rescind an employer’s accreditation without requiring the consent
of the Minister of Immigration, in line with al other accreditation policies.
17
Costs associated with the proposed audits wil be met initial y by INZ from within
baselines, and reviewed as part of the 2017 INZ Fee Review to determine whether they
should be reflected in a change to the fee or levy amount charged to employers. The
Fee Review wil also provide an opportunity to assess what, if any, changes need to be
made to the level of work required to assess renewal applications after longer
accreditation periods.
18
A minor amendment to the fees schedules (schedule 4) of the
under the
Immigration (Visa, Entry
Permission, and Related Matters) Regulations 2010 wil be required for the proposed
changes.
Proposal two: aligning the maximum age requirement for Long Term Skill Shortage List policy
with the maximum age requirement of other Work-to-Residence policies
19
Work-to-Residence policies (and associated Residence-from-Work policies) have a
maximum age requirement of 55 years. This is the same as for the Skil ed Migrant
Category, and limits applications from people aged over 55 years at the time the
application is made. The age limit aims to ensure that applicants being granted
residence on the basis of their work or skil s can contribute to the New Zealand
Released
workforce for a reasonable period before retirement.
20
The Talent (Accredited Employer) and Talent (Arts, Culture and Sports)
policies apply
the maximum age requirement at the work visa stage, with no age limit at the residence
stage two years later. The LTSSL policy does the opposite, with no age limit placed on
the work visa but a maximum age requirement is required with residence applications.
This creates a situation where applicants 55 years and older can be granted a work visa
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under the LTSSL Work-to-Residence policy, but find themselves ineligible for the
subsequent resident visa under the LTSSL Residence-from-Work policy. This situation
goes against the intent of the Work-to-Residence policies of providing a pathway from
work to residence with a high degree of certainty.
21
I propose that the maximum age requirement for the LTSSL policy be reversed, from the
residence stage to the work visa stage, to align with the other two Work-to-Residence
policies and ensure applicants who meet the eligibility requirements for the work visa are
able to proceed to the residence stage as expected.
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Partnership visas
22
Partnership visa policies (visitor, work, and resident visas) al ow partners of New
Zealand citizens and residents to come to New Zealand on the basis of that relationship.
Requirements include living together with their New Zealand partner in a genuine and
stable partnership, and character checks on both the applicant and their New Zealand
partner.
Proposal three: discontinuing the ‘partnership deferral’ policy for applications for residence
under the Partnership Category
23
To be eligible for residence under the Partnership Category, applicants must have been
living together with their partner in that partnership for a minimum of 12 months. Where
an application is made before that minimum duration is met, and an immigration officer is
satisfied with al other application requirements, the final decision on the residence
application can be deferred to al ow the qualifying period to be met. If the applicant
wishes to be in New Zealand with their partner during the deferral period, they can apply
for a Partnership Deferral temporary visa.
24
The ‘partnership deferral’ policy has the benefits of INZ not being required to decline
applications when only the partnership duration criterion is not met, and speeding up the
final decision at the end of the deferral period (i.e. it is faster than a new application).
However, it also adds complexity to the visa options available under partnership, and
can be seen to undermine the minimum partnership requirements by al owing
applications that do not meet the minimum requirements to be accepted.
under the
25
Importantly, ‘partnership deferral’ does not provide any special access to New Zealand
that is not already available through other, more appropriate visa options. Applicants
can, and often do, apply for a temporary entry (visitor or work) visa based on short
partnership periods.
26
I propose to remove the ‘partnership deferral’ option for applications for a resident visa
under the Partnership Category. This wil simplify the visa categories for partnership, and
signal that al the minimum requirements must be met before making a residence
application under partnership.
Released
27
The impact of this change wil be minimal. Numbers of temporary entry visas granted
under partnership deferral are very smal and steadily decreasing, and are smal in
comparison to overal applications for residence under partnership. Table One below
il ustrates declining numbers of applications through the last ten years.
Table One: Declining number and proportion of partnership deferral temporary entry visas
Partnership deferral
Partnership deferral visas
Partnership residence
Official Information Act 1982
Year
temporary entry visas
as a proportion of
applications decided
decided
partnership applications
2006/07
7872
60
0.76%
2010/11
8214
46
0.56%
2014/15
8195
10
0.12%
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28
The smal number of applicants who currently use the policy wil be able to use other
visa options under partnership and wait a few extra months before lodging their
residence application. The cost of a temporary entry partnership visa application is
between $165 (online visitor visa) and $375 (work visa submit ed in hard copy). The
change wil not affect existing visa applications, which are decided based on the policy in
place at the time the application is lodged.
29
The ‘partnership deferral’ policy is also sometimes used for other types of residence
applications, where the 12-month partnership duration requirement applies to partners
who are included as a secondary applicant. For example, where a foreign couple has
been living together for 10 months when they apply for residence under the Skil ed
Migrant Category (SMC); instead of removing the secondary applicant from the main
application and requiring a separate residence application later under partnership, he or
she can get a ‘partnership deferral’ until the 12 months is met, and eventual y get
residence based on the original SMC application.
30
Unlike partners of New Zealanders, the cost of removing the partnership deferral for
partners of SMC would be high. Delaying the SMC application until the partnership
requirement is met may not be possible for the principal applicant. This would require
making a separate residence application under the Partnership Category (with the now-
resident partner) a few months after the SMC application, adding costs and complexity.
In some cases a new character check and medical certificate may be required. The
partnership deferral option under the SMC provides a facilitative pathway for these
applicants, and I do not propose to change it.
under the
Proposal four: removing the seven-year limit when considering prior domestic violence or
sexual offences of New Zealand partners wishing to support partnership visa applications
31
Partnership visa applications include character requirements for the New Zealand
partner supporting the application. They must not, in the seven years prior to the date of
the application:
a
have been convicted of any domestic violence or sexual offence (unless granted
a character waiver), nor
b
have been the perpetrator of an incident of domestic violence which resulted in
Released
the grant of a resident visa to a former partner under the Victims of Domestic
Violence category.
32
They are required to submit a police certificate from every country in which they have
lived for at least 12 months in the seven years prior to their partner’s application being
submitted.
33
A review of partnership policies highlighted that the time limit on this requirement offers
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only limited protection for foreign partners and their children, who have often left their
families, friends and support networks behind. In order to bolster the protection of
women and children in vulnerable situations, and prevent potential y abusive New
Zealanders from supporting partnership applications, I propose to remove the seven-
year limit on the character requirements for New Zealand partners.
34
The immediate impact of this proposal wil be to require police certificates from New
Zealand partners from every country in which they have lived for at least 12 months
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since turning 18. This is a stronger requirement than for visa applicants themselves,4
and reflects the Government’s commitment to preventing family violence.
35
A little over 8,000 resident visas, and 14,000 to 15,000 temporary entry visas, are
granted under partnership categories every year. For some older partners who lived
overseas in their younger years, this could make supporting an application more
complicated and more demanding in terms of paperwork required. This negative impact
is minor when compared with the overal benefit of the proposal.
36
New Zealand partners with older convictions (not currently captured by the seven-year
policy) may no longer be able to support partnership applications. This is the intent of the
proposed policy change.
37
The impact on affected New Zealand partners is mitigated by the fol owing:
a
existing immigration instructions for dealing with situations where a police
certificate may not be available
b
protection under the
Criminal Records (Clean Slate) Act 2004, meaning INZ
cannot request disclosure of convictions covered by this legislation
c
eligibility for a character waiver under existing policy, meaning immigration
officers
must consider the applicability of a character waiver, giving regard to the
nature of the offending and surrounding circumstances of the application. The
length of time since the offending occurred wil natural y form part of the character
waiver consideration, and
under the
d
general fairness and natural justice requirements in immigration decisions.
Proposal five: providing a pathway to residence for some long-term partners of New Zealanders where the relationship has broken down and the family includes a child or children
38
Partners of New Zealand residents and citizens must be living with their New Zealand
partner in a genuine and stable relationship for at least 12 months in order to apply for
residence under the Partnership Category. Partners living with a New Zealander
overseas can apply before coming to New Zealand and, if that relationship is long-term
(defined as five years or more), can be granted a Permanent Resident Visa
Released
immediately.5
39
Twelve months is a minimum requirement and some foreign partners may decide not to
apply for residence immediately when eligible. Foreign partners who only intend a
temporary stay or who are uncertain about applying for residence can get work visas for
up to two years.6
Official Information Act 1982
40
When a long-term relationship breaks down after a family moves to New Zealand but
before the foreign partner applies for and gets residence, foreign partners can find
4 Temporary entry visa applicants must provide police certificates from every country where they have lived for five years or more, since
turning 17 years old. Resident visa applicants must provide police certificates from every country where they have lived for 12 months or
more, over the previous ten years.
5 Applicants who do not meet the ‘long term’ overseas requirement are granted a Resident Visa and must wait two years to qualify for a
Permanent Resident Visa.
6 Foreign partners of New Zealand residents and citizens who intend to stay in New Zealand for more than two years are expected to
apply for residence before the end of this two-year period.
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themselves with no alternative avenue to stay in New Zealand.7 This is particularly
difficult when the family includes a New Zealand child or children who would stay behind
in New Zealand.
41
I propose to create a pathway for these (now former) partners who had been in a long-
term relationship to get residence to stay in New Zealand. This new resident visa, under
the existing Family Category, wil be available to people who:
a
are in New Zealand at the time they make the application
b
had been, prior to the break-up, living in a genuine and stable partnership with a
New Zealand resident or citizen for at least five years, and
c
have a New Zealand resident or citizen child or children with their former New
Zealand partner, and that child (or at least one of the children) meets the existing
definition of ‘dependent child’ under residence instructions and is habitual y
resident in New Zealand.
42
Generic residence health and character criteria wil apply. Applications under this policy
wil not count toward the limits on the number of partners and timeframes between
applications that apply to supporting visas under Partnership policy.
43
I recommend extending character requirements for applicants under this policy to
specifical y cover family violence. There is a smal risk that New Zealand partners
escaping a situation of family violence may be further victimised if their abusive foreign
partner is al owed to stay under this new visa category. Standard character requirements
under the
rely on actual convictions and are not sufficient to manage this risk.8 Details of the
extended character requirements wil be developed through operational policy and are
subject to approval by the Minister of Immigration.
44
Limiting the visa to people who had been in long-term relationships wil mitigate the risk
of creating a perverse incentive for people to enter partnerships and have children for
the purpose of getting residence through this new category. This risk is considered very
smal under the proposed settings.
45
The impact of introducing this policy is expected to be smal in terms of numbers but
significantly positive for the families affected. The application fee and immigration levy
Released
wil be the same as for other Family Category residence policies, namely $970 (fee) and
$280 (levy).
Low risk visitors
46
New Zealand has a number of special visitor visa categories for people who do some
form of work while in New Zealand, but who are here for very short periods of time for
specialised engagements, or whose work is incidental to their visit to New Zealand, and
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whose presence benefits New Zealand. Examples include sports people, their support
7 This excludes situations where the relationship breaks down because of domestic violence against the foreign partner. In such cases,
the foreign partner can apply under existing policies for
Victims of Domestic Violence (for both temporary and residence visas). These
policies have no minimum relationship duration requirement, and focus instead on the intention to seek residence on the basis of
partnership. They provide for operational flexibility in establishing evidence of the partnership and of the domestic violence. Applications
are assessed by specially trained immigration of icers trained to deal with victims of domestic violence.
8 Only a small proportion of domestic violence complaints to police lead to actual convictions. In domestic violence situations involving a
foreign partner as the perpetrator, it is conceivable that in the absence of other criminal behaviour the violent partner would meet
character requirements.
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staff and media coming for sports events and tournaments, musicians and performers
coming for festivals or with certain music promoters, and visiting academics.
47
Proposals six and seven are for new or improved special visitor visa categories for
groups of people who may work in New Zealand. They are considered to be low-risk
both in terms of overstaying and in terms of displacing New Zealand workers.
Proposal six: allowing international tourism tour escorts to enter New Zealand as visitors
48
Overseas tour groups coming to New Zealand often do so accompanied by a tour
escort. The primary role of tour escorts’ is providing pastoral care, translation and
organisation for the group. They work for an overseas employer, and many who are from
visa-waiver countries arrive as visitors. However, they do official y require work visas to
conduct their duties while in New Zealand. Those who arrive as visitors run the risk of
being detained and questioned at the border and leaving their tour group without support
on arrival. Those who apply for the required work visa face an additional chal enge as
there is no specific visa category that easily applies to them.
49
Tour groups contribute to New Zealand’s tourism industry. In a June 2015 survey,9
inbound tour operators (New Zealand companies facilitating tour groups travel within
New Zealand) indicated that tour groups accounted for 55 per cent of the sector’s
estimated $496 mil ion annual revenue, with a strong growth outlook for the next three
years.
50
I propose to better facilitate tour groups visiting New Zealand by al owing tour escorts to
under the
travel as visitors. This wil mean easier visa applications for those from visa-required
countries, and visa-free travel for those from visa-waiver countries.
51
I propose that ‘tour escort’ be defined here as a person who:
a
arrives, leaves, and travels within New Zealand with a tour group, and
b
resides offshore and is employed by an employer outside New Zealand (for
example, an overseas travel agent).
52
This proposal is low risk. Tour escorts are not considered to pose a risk of displacing
New Zealand workers in the tourism industry – they arrive and leave New Zealand with
Released
their tour group(s), and when in New Zealand wil usual y arrange for local tour guides to
manage specific activities and provide in-depth local knowledge. The nature of their work
also puts them at low risk of overstaying.
Proposal seven: expanding the visitor visas for approved arts or music festivals and for high-
end music acts, to all short-term live performers
Official Information Act 1982
53
INZ has a suite of visa policies for entertainment industry workers:
a
two categories of visitor visas, for entertainers coming as part of approved
festivals and for high-end music acts coming to tour with approved music
promoters, and
9
Auckland Tourism, Events and Economic Development (ATEED) Inbound Tour Operator Survey, Angus & Associates for Auckland
Tourism, Events and Economic Development, June 2015
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b
work visas under
Specific Purpose category for entertainers coming for private or
public performances (not covered by (a) above) or to work on film or video
productions in New Zealand.
54
Visitor visas for high-end music acts were introduced in 2014 [EGI Min (14) 14/11]
fol owing a review of policies for entertainers and representations from music promoters.
The majority of those who come under the policy are from visa-waiver countries. Based
on a sample of 500 tours/groups10 from the start of 2016, the workers stayed an average
of six days in New Zealand.
55
This arrangement has been working wel and has received positive feedback from
promoters, who have asked that it be extended to include comedy acts and family
entertainment. These acts can already come with visitor visas if they are part of a
festival, but must otherwise apply for work visas under the Specific Purpose –
Performing Artists, Entertainers and Entertainment Industry Workers policy. They are
likely to be exempt from the labour market test because of their short stay (it is not
required for stays of less than 14 days). According to the 2014 review, 91 per cent of
work visas for entertainers fel under the 14-day exemption. Allowing a wider range of
live acts to come with a visitor visa instead of a work visa would be unlikely to impact on
labour market opportunities for New Zealanders.
56
I propose that the High-End Acts policy be extended to al ow a wider range of live acts.
This would add acts such as comedy performers, family entertainment, international
circus, bal et, and theatre companies. The requirement to come to New Zealand with an
approved promoter would stil apply, providing INZ with oversight.
under the
Business residence stream
Proposal eight: expanding character requirements for all applicants under the Business stream
to ensure compliance with employment and immigration law
57
Applicants for residence under the Business stream (an Entrepreneur category, and two
Investor categories) are subject to the generic character test set out in the
Immigration
Act 2009 and residence immigration instructions. An additional test applies to
Entrepreneur applications, whereby the business on which the application is based must
comply with al relevant New Zealand employment and immigration law. This test only
Released
applies to the business used in the application, not to any other business the applicant
may be involved with, nor to any business in which an Investor category applicant may
be involved.
58
In light of the Government’s efforts to strengthen the enforcement of employment
standards and protect employees – including changes made in 2016 to the
Employment
Relations Act 2000, and the new provisions to protect migrants from exploitation in the
Immigration Act 2009 introduced in 2015 – the current character requirements for
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Entrepreneur and
Investor applicants appear insufficient. I propose an overarching ‘fit
and proper’ character requirement for applications made under any category in the
Business stream, to ensure a greater degree of accountability for applicants’ compliance
with employment, immigration and tax law.
10 Approved promoters regularly advise INZ of incoming tours, with information on nationalities, main act, numbers of people in the tour,
and itinerary/planned dates in New Zealand.
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59
I propose that the breadth of accountability be aligned with the new employment
standards and apply to ‘officers’ of a company, being directors and other individuals who
occupy positions where they exercise significant influence over the management or
administration of the business.
60
The impact on applicants is expected to be smal . Additional requirements for applicants
could include making a declaration of good character and, in some instances, providing
additional information if requested by INZ. The additional checks by INZ are not
expected to affect the cost of an application under these categories.
Regulatory changes
61
Five regulatory changes are proposed as part of this paper including a minor
amendment to reflect the proposed change to the employer accreditation duration as set
out in proposal one under paragraph 18.
Proposal nine: removing the regulatory requirement to provide a passport or certificate of
identity in order for a visa application to be legally made.
62
Regulations 5(2)(d)(i) and 10(2)(e)(i) of the Immigration (Visa, Entry Permission, and
Related Matters) Regulations 2010 require applicants to submit identity documents at
the time they lodge their visa applications (other than at an immigration control area):
a
their passport or certificate of identity
b
their birth certificate (original or a certified copy), or
under the
c
other identity document (or a certified copy).
63
The flexibility to provide originals or certified copies of the birth certificate or other
identity document does not extend to passports or certificates of identity, when in fact
there is no need for INZ to see the original passports when the application is lodged.
With the ability to grant electronic visas, there are some circumstances where a physical
passport is not required at any point during the processing of a visa application.
64
I propose to change these regulations to al ow a certified copy of the passport or
certificate of identity to be provided. This wil provide flexibility and convenience for
Released
applicants and avoid INZ offices having to return passports by post after some
applications are lodged.
Proposal ten: ensuring that the immigration levy is payable on al ‘first residence applications’,
whether the application leads to a resident visa or a permanent resident visa
65
The immigration levy was introduced in December 2015 to replace the migrant levy. The
Official Information Act 1982
migrant levy had been applied to successful residence applicants, as a prerequisite to
the new visa being endorsed in the applicants’ passports, and used for settlement-
related services and immigration research. The immigration levy now applies to all
substantive visa applications (successful or not), at the time of application, and is used
for a wider range of immigration-related services for which a fee is not appropriate.
66
Applicants subject to the levy are explicitly listed in Schedule 6 of the Immigration (Visa,
Entry Permission, and Related Matters) Regulations 2010. The list is exclusive. It
includes applicants for a ‘resident visa’ under a variety of categories, but not applicants
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for a ‘permanent resident visa’ (PRV) – reflecting the fact that PRVs are not usual y
‘substantive’ visa applications, but fol ow on from a resident visa application after two or
more years.11
67
This is problematic for the few visa categories where applicants may be immediately
eligible for a PRV without first holding a resident visa:
a
Partnership Category – where the period of partnership is longer than five years
and the couple are living overseas at the time of the application, the foreign
partner can get a PRV immediately
b
Talent (Accredited Employer) category (Residence-from-Work) – where the
applicant meets a higher annual salary threshold ($90,000 per annum instead of
the standard $55,000 per annum) they can get a PRV immediately,
c
Global Impact Visas – though this policy is not yet implemented, it is intended that
applicants who meet the residence requirements wil be eligible for a PRV
immediately.
68
Applicants under the Partnership Category and Talent (Accredited Employer) pay their
immigration levy when they lodge their substantive resident visa application, but that levy
amount must be refunded if they meet the special requirements and get an immediate
PRV. This does not align with the intention that substantive residence applications would
attract the levy regardless of the type of visa granted. It also introduces a different cost
for the same application. The immigration levy for Partnership Category applications is
under the
$280 and for Talent (Accredited Employer), $580.
69
I propose that the
Immigration (Visa, Entry Permission, and Related Matters)
Regulations 2010 be amended to ensure that al substantive residence applications be
subject to the immigration levy, while making sure that PRV and second or subsequent
resident visa applications are exempted where they fol ow a resident visa.
Proposal eleven: preventing circumvention of immigration policy health requirements
70
The immigration system regulates the entry of foreign nationals through the
comprehensive assessment of visa applications. One reason for this is to protect New
Zealand from significant costs imposed on publicly-funded services, including healthcare
Released
and special education services. A resident visa can only be approved in its entirety if al
family applicants included in the same application meet health and character
requirements or a good reason exists to waive those requirements.
71
Some dependent partners and children with high cost healthcare needs who are in New
Zealand on temporary visas are being excluded or removed from their family’s residence
applications in an attempt to circumvent immigration health assessment requirements.
Official Information Act 1982
The intention is to al ow the rest of the family to be granted residence in the belief, that
when a subsequent residence application is made, the independent appeal process can
then be used to gain residence for the excluded partner or child. This means that the
health needs of a dependent person cannot be assessed by INZ for the purpose of
determining a family visa application.
11 Second and subsequent resident visa applications, which allow applicants who are not elig ble for a PRV to still maintain their resident
status if they travel, are also not included in the list at Schedule 6 of the Immigration (Visa, Entry Permission, and Related Mat ers)
Regulations 2010.
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72
While numbers are smal , circumvention of health requirements by not disclosing
dependants’ health or education needs undermines the integrity of the immigration
system. To address this issue, I propose to amend the
Immigration (Visa, Entry
Permission, and Related Matters) Regulations 2010 to require that al dependants must
be included in a residence application (or not removed while the application is being
processed) where they hold a temporary entry visa linked to the principal applicant’s
current visa. Only where a change in circumstances during the course of an application
makes a dependant ineligible for inclusion (for example divorce, separation or death),
would removal be permitted.
73
The proposed change wil al ow INZ to enforce health policy requirements, thereby
strengthening the integrity of the immigration system. The entire family can be assessed
as a single unit and INZ can balance the economic contribution of the family against the
potential costs to New Zealand when deciding whether or not to grant residence. It wil
also reduce the number of unlawful dependent children in New Zealand who receive
special needs education funding and health services.
74
The proposal wil also prevent the removal of dependent family members from residence
visa applications in order to circumvent character requirements, although no evidence
exists to suggest this is a problem.
75
Amending the
Immigration (Visa, Entry Permission, and Related Matters) Regulations
2010 is the only way to achieve this as immigration instructions cannot be used to set
rules relating to the making or lodging of an application (including the withdrawal of an
application).
under the
Proposal twelve: updating the provision of passenger information requirements
76
To protect and maintain the integrity of the New Zealand border, INZ, along with the New
Zealand Customs Service (Customs), col ects passenger name record information from
airlines flying into New Zealand (known as PNR data). PNR data is used to run pre-
travel risk assessments on passengers both to identify high risk passengers, and
facilitate the efficient flow of low risk passengers through international airports. The
Ministry of Primary Industries (MPI) also receives PNR information provided to it by
Customs. Released
77
The specific information col ected is specified in international standards and reflected in
immigration regulations. The International Civil Aviation Organisation (ICAO) has
updated the PNR standard to provide a consistent approach to the provision of PNR
data by airlines to al governments that require this information. The New Zealand border
agencies are updating the information provision requirements to align with the new ICAO
standards.
78
The New Zealand border agencies (INZ, Customs, and MPI) have adopted the principle
Official Information Act 1982
from the ICAO guidelines that where airlines do not already col ect or hold a specific
data element or elements, the airline is not required to provide that data. Where an
airline is unable to provide a specific data element or elements, the
Immigration Act
2009 (the Act) al ows for an exemption to be agreed in writing with the airline.
79
Cabinet has agreed to amend Customs legislation to align the
Customs and Excise Act
1996 with the updated ICAO standard (EGI-15-MIN-0064.01: Customs and Excise Act
Review: Biometric and Passenger Name Record Information (Paper 3)).
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80
To ensure alignment of the immigration regulations with the new international standards
and maintain the integrity of New Zealand’s border controls, I propose that regulation 6
of the
Immigration (Carriers’ Information Obligations) Regulations 2010 be updated.
Implementation
81
The maximum age requirements for Long Term Skil Shortage List change (proposal
two), the expanding existing visitor visa provisions change (proposal seven), and the
character requirements for al applicants under the Business Stream change (proposal
eight), are planned for implementation in November 2016. Implementation of the
remaining proposals is planned for April 2017.
Consultation
82
The fol owing government agencies were consulted and their views taken into account in
the drafting of this paper: the Treasury; the Ministries of Justice and Social
Development, and Inland Revenue, particularly on proposals five and eleven; the
Ministry for Culture and Heritage, and Creative New Zealand, particularly on proposal
seven; the Ministries of Education, Foreign Affairs and Trade, Health, Pacific Affairs, and
the Office for Disability Issues particularly on proposal eleven; the Ministry for Primary
Industries, the Ministry of Transport, the New Zealand Customs Service, and the New
Zealand Police, particularly on proposal twelve. The Department of Prime Minister and
Cabinet has been informed. The New Zealand Music Commission has also been
consulted in regards to proposal seven. under the
83
In respect of proposal twelve, the Border Agencies, during the development of the
Customs Cabinet paper, ful y consulted airlines and relevant stakeholders about the
proposed change to reflect the new ICAO standard and recommended practice for PNR
in legislation. The Board of Airline Representatives of New Zealand agreed with the
approach while noting, given the sensitivities of the personal information being provided,
that particular protection of this information is required. Customs is drafting a Privacy
Impact Assessment that details the measures being undertaken to safeguard the
passenger information being provided.
Financial Implications
Released
84
The proposals in this paper are fiscal y neutral to the Crown. Any additional fees
proposed would be met by applicants and volume changes managed through the
memorandum account, baseline updates and future fee levy reviews.
Human Rights Implications
85
The proposals in this paper are consistent with the
New Zealand Bill of Rights Act 1990
and the
Human Rights Act 1993.
Official Information Act 1982
86
Proposal eleven ensures that proper account can be made of al visa applicants’ health
and character. Section 22 of the Act provides for such assessment, and the proposal
changes neither the content of the substantive health and character tests nor the way
those tests are applied. More generally, section 392 of the Act “recognises that
immigration mat ers inherently involve different treatment on the basis of personal
characteristics” and section 45(1) provides that “no person is entitled to a visa as of
right”.
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Legislative Implications
87
Changes to the
Immigration (Visa, Entry Permission, and Related Matters) Regulations
2010 wil be required to implement proposals one (amending the duration of
accreditation periods), nine (to al ow certified copies of passports), ten (to ensure the
immigration levy applies as intended to al substantive residence applications), and
eleven (include al dependent family members who hold temporary entry visas linked to
the principal applicant in a residence visa application).
88
The proposal (proposal twelve) to align with the new International Civil Aviation
Organisation PNR data standard would require an update to the
Immigration (Carriers’
Information Obligations) Regulations 2010.
Regulatory Impact Analysis
89
A Regulatory Impact Statement (RIS) is not required for proposals one, nine, ten, and
twelve on the basis that they are of a minor and technical nature.
90
MBIE has prepared a RIS relating to the proposed amendment to application
requirements for residence class visas (proposal eleven). The MBIE Regulatory Impact
Analysis Review Panel has reviewed the attached RIS and considers that the
information and analysis summarised in the RIS meets the criteria necessary for
Ministers to fairly compare the available policy options and take informed decisions on
the proposals in this paper.
under the
Publicity
91
A communications strategy wil be prepared by MBIE, as part of the development of
operational policy to implement the changes. I also propose that this Cabinet paper be
proactively released on the MBIE website.
92
Proposal seven, to extend visitor visas to al foreign national live acts coming to New
Zealand with an approved promoter, may attract negative publicity from entertainment
workers’ unions for not having been consulted. The unions have opposed all changes to
policies for entertainment workers since 2012. The 2014 review of policies for
entertainment industry workers (mentioned at paragraph 54 above) specifical y
investigated concerns raised by the unions and found them to be unfounded.
Released
Recommendations
The Minister of Immigration recommends that the Committee:
1
note that the changes proposed in this paper address irritants within the immigration
system identified by the Ministry of Business, Innovation and Employment and wil either
Official Information Act 1982
be beneficial to users, or have only minor impacts on the immigration system
Proposal one: extending the duration of employer accreditation under the Talent (Accredited
Employer) policy
2
note that the Talent (Accredited Employer) policy, introduced in 2002 [DEV Min (01)
19/6], al ows employers accredited by Immigration New Zealand to more easily hire
foreign workers, with a simple and fast work visa process and a pathway to residence;
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3
note that employer accreditation under the
Talent (Accredited Employer) policy is valid
for 12 months and renewable annual y, and that approval rates for renewal applications
are consistently extremely high (99 per cent in the last two years);
4
agree to extend the duration of employer accreditation under the Talent (Accredited
Employer) policy to:
a
an initial accreditation period of up to two years, and
b
renewal accreditation periods of up to five years;
5
agree that any fiscal y-neutral changes to the Immigration Services appropriation arising
from this change wil be reflected in future Baseline Updates (where material);
6
agree that Immigration New Zealand develop an audit programme for accredited
employers under the longer accreditation timeframes specified at recommendation
4;
7
agree that Immigration New Zealand can rescind an employer’s accreditation under the
Talent (Accredited Employer) policy without requiring the consent of the Minister of
Immigration, in line with other accreditation policies;
8
agree that the
Immigration (Visa, Entry Permission, and Related Matters) Regulations
2010 be amended to adjust the accreditation periods to accord with the policy detailed in
recommendation 4;
under the
Proposal two: aligning the maximum age requirement for Long Term Skill Shortage List policy
with the maximum age requirement of other Work-to-Residence policies
9
agree that the maximum age requirement for the Long Term Skil Shortage List policy
(55 years) be applied at the work visa stage (instead of the residence visa stage it
currently is), to align with other Work-to-Residence policies;
Proposal three: discontinuing the ‘partnership deferral’ policy for applications for residence
under the Partnership category
10
note that a seldom used Partnership deferral policy al ows INZ to defer residence
applications made by partners of New Zealand citizens or residents who do not meet the
Released
minimum partnership duration requirement (living together for 12 months), and al ows
partners to apply for a temporary entry visa for the time needed to meet the minimum
partnership duration;
11
note that discontinuing the Partnership deferral policy would reinforce the importance of
meeting the minimum requirements prior to applying for a residence visa, and that it
would not impose additional costs for partners of New Zealand citizens and residents in
Official Information Act 1982
terms of applying for a separate temporary entry visa;
12
note that the Partnership deferral policy is also sometimes used for applications for
residence under the Skil ed Migrant Category when the principal and the secondary
applicant do not meet the minimum partnership duration requirement, and that
discontinuing the policy for these applicants would impose significant costs associated
with making a separate residence application under partnership in the future;
13
agree to discontinue the Partnership deferral policy, for applications for residence under
the
Partnership Category (for partners of New Zealand citizens or residents) only;
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Proposal four: removing the seven-year limit when considering prior domestic violence or
sexual offences of New Zealand partners wishing to support partnership visa applications
14
note that in order to support a partnership visa, New Zealand citizens or residents must
not, in the seven years prior to the date of the application:
a
have been convicted of any domestic violence or sexual offence, nor
b
have been the perpetrator of an incident of domestic violence which resulted in
the granting of a resident visa to a former partner under the
Victims of Domestic
Violence category;
15
note that where a partner has a conviction captured by the character requirements, the
immigration officer must consider the applicability of a character waiver, giving regard to
the nature of the offending and surrounding circumstances of the application, and
applying the principles of fairness and natural justice;
16
note that a review of partnership policies highlighted that the seven-year limit on the
character requirement for supporting partners does not offer sufficient protection for
foreign partners and their children, in preventing New Zealanders with a history of
domestic abuse or sexual violence from supporting partnership applications
;
17
agree to remove the seven-year limit on the character requirements for New Zealand
partners detailed at recommendation
14; under the
Proposal five: providing a pathway to residence for some long-term partners of New Zealanders where the relationship has broken down and the family includes a child or children
18
note that partners of New Zealand residents or citizens are eligible to apply for
residence under Partnership Category once they have been living together with their
New Zealand partner in a genuine and stable partnership for at least 12 months;
19
note that long-term partners of New Zealanders may be left with no pathway to remain
in New Zealand with their children, if their relationship breaks down before they have
been granted residence under Partnership Category;
20
Released
agree to a new resident visa, under Family Category, for long-term partners of New
Zealanders, where the relationship has broken down and the family includes a child or
children;
21
agree that the new category be available to applicants who
a
are in New Zealand at the time they make the application
Official Information Act 1982
b
had been, prior to the break-up, living in a genuine and stable partnership with a
New Zealand resident or citizen for at least five years, and
c
have a New Zealand resident or citizen child or children with their former New
Zealand partner, and that child (or at least one of the children) meets the existing
definition of ‘dependent child’ under residence instructions and is habitual y
resident in New Zealand;
22
agree that character requirements for applicants under this policy include provisions to
protect the New Zealand child or children and ex-partner from domestic violence;
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23
agree that the visa wil not count toward the restrictions on the number of partners and
timeframes between applications that apply to supporting visas under the Partnership
policy;
24
agree that applications under this new policy wil incur a fee of $970 and an immigration
levy of $280, which are the charges applicable to Family Category residence
applications;
25
note that this change is expected to have no impact on the operating balance because
costs wil be covered by the application fee and immigration levy outlined in
recommendation 24;
Proposal six: allowing international tourism tour escorts to enter New Zealand as visitors
26
note that there are a number of special visitor visa categories for people who do some
form of work while in New Zealand, but who are here for very short periods of time, for
specialised engagements, or whose work is incidental to their visit to New Zealand, and
whose presence benefits New Zealand;
27
note that overseas tourist tour groups coming to New Zealand often do so accompanied
by a tour escort who provides pastoral care, translation and organisation for the group,
and that these tour escorts are required to hold work visas when coming to New Zealand
with tour groups;
28
agree to al ow tour escorts to come to New Zealand as visitors, defining tour escorts as
people who:
under the
a
arrive, leave, and travel within New Zealand with a tour group, and
b
reside offshore and are employed by an employer outside New Zealand (for
example, an overseas travel agent);
Proposal seven: expanding the visitor visas for approved arts or music festivals and for high-
end music acts, to all short-term live performers
29
note that certain entertainment industry workers can come to perform in New Zealand
with visitor visas where they are part of an approved festival, or are a high-end music act
Released
touring with an approved music promoter;
30
note that the policy for music acts touring with approved promoters has been working
wel and received positive feedback from promoters, who would like to see it extended to
other live acts, such as comedy and family entertainment;
31
agree to extend the policy for high-end acts to other short term live acts who tour New
Official Information Act 1982
Zealand with approved promoters;
Proposal eight: expanding character requirements for all applicants under the Business stream
to ensure compliance with employment and immigration law
32
note that applications for residence under the Entrepreneur Category, part of the
Business Stream, are subject to a special character requirement whereby the business
on which the application is based must comply with al relevant New Zealand
employment and immigration laws;
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33
note that the special character requirement made in recommendation
32 only applies to
the business used for the residence application, not to any other business the applicant
may be involved with, nor to any business in which applicants under other categories in
the Business stream may be involved (for example, the Investor Category);
34
note that the Government has already deployed a range of changes in efforts to
strengthen the enforcement of employment standards and protect employees, including
changes to the
Employment Relations Act 2000 and new provisions in the
Immigration
Act 2009 to prevent exploitation of migrant workers;
35
agree to introduce an overarching ‘fit and proper’ character requirement for al
applications made under the Business stream, to increase applicants’ accountability for
compliance with employment and immigration laws where they are involved in one or
more businesses in New Zealand (in positions where they exercise significant influence
over the management or administration of the business);
Proposal nine: allowing applicants to submit a certified copy of their passport or certificate of
identity in order for a visa application to be legally made
36
note that the
Immigration (Visa, Entry Permission, and Related Matters) Regulations
2010 require visa applicants to submit identity documents at the time they lodge their
application, and these documents can be original or certified copies, with the exception
of passports or certificates of identity, which must only be originals;
37
note that there is often no need for INZ to see the original passports or certificates of
under the
identity when a visa application is lodged;
38
agree that the
Immigration (Visa, Entry Permission, and Related Matters) Regulations
2010 be amended to al ow applicants to submit certified copies of al identity documents,
including passports and certificates of identity, when lodging visa applications;
Proposal ten: ensuring that the immigration levy is payable on al ‘first residence applications’,
whether the application leads to a resident visa or a Permanent Resident Visa
39
note that the immigration levy, introduced in December 2015, is payable at the time of
application by visa applicants exclusively listed in Schedule 6 of the
Immigration (Visa,
Released
Entry Permission, and Related Matters) Regulations 2010;
40
note that the list in Schedule 6 of the
Immigration (Visa, Entry Permission, and Related
Matters) Regulations 2010 does not include any applicants for a Permanent Resident
Visa, as those visas do not usual y require a ‘substantive’ visa application but instead
fol ow on from a resident visa application after two or more years;
41
note that the exclusion in recommendation 40 inadvertently excludes applicants making
Official Information Act 1982
a ‘substantive’ residence application, under categories that can lead to either a resident
visa or a permanent resident visa, leading to the need for refunds and to different costs
for applications under the same category;
42
agree that the
Immigration (Visa, Entry Permission, and Related Matters) Regulations
2010 be amended to ensure that al substantive residence applications be subject to the
immigration levy, while making sure that applications for Permanent Resident Visas (and
second or subsequent resident visas) are exempted when they fol ow a Resident Visa;
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Proposal eleven: preventing circumvention of immigration health requirements
43
note that the omission from residence applications of dependants who do not meet
health requirements undermines the integrity of the New Zealand immigration system;
44
note that the proposed change wil al ow Immigration New Zealand to enforce health
policy requirements, thereby strengthening the integrity of the immigration system;
45
agree that
Immigration (Visa, Entry Permission, and Related Matters) Regulations 2010
be amended to ensure all dependants are included in a residence application (or not
removed while the application is being processed) where they hold a Temporary Entry
Visa linked to the principal applicant’s current visa
;
46
invite the Minister of Immigration to issue drafting instructions to the Parliamentary
Counsel Office for amending the
Immigration (Visa, Entry Permission, and Related
Matters) Regulations 2010 to give effect to recommendations 4 and 8 (accreditation
period), 38 (al owing certified copies of passports), 42 (immigration levy for substantive
applications), and 45 (inclusion of dependants in residence applications);
Proposal twelve: updating the provision of passenger information requirements on airlines
47
note that New Zealand is a signatory to the Convention on International Civil Aviation
(ICAO) and is required to comply with the standards and recommended practices and
policies adopted by the ICAO, including those which provide for the col ection of
passenger information from airlines flying into New Zealand;
under the
48
note the col ection of Passenger Name Record (PNR) data is a critical component of
ensuring New Zealand borders are protected;
49
note that ICAO has updated the PNR standard and that existing regulations do not align
with this new standard;
50
agree that the
Immigration (Carriers’ Information Obligations) Regulations 2010 be
updated to align with the new ICAO PNR standard; and
51
invite the Minister of Immigration to issue drafting instructions to the Parliamentary
Council Office to amend the
Immigration (Carriers’ Information Obligations) Regulations
Released
2010, to ensure alignment with the new ICAO PNR standard.
Authorised for lodgement
Official Information Act 1982
Hon Michael Woodhouse
Minister of Immigration
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Office of the Minister of Immigration
Chair
Cabinet Economic Development Committee
RECOGNITION OF MARRIAGE AND DE FACTO RELATIONSHIPS FOR
IMMIGRATION PURPOSES
Proposals
1.
This paper proposes aligning the treatment of married and de facto relationships for
immigration purposes and adjusting the policy requirements to ensure that only those in a
genuine and stable relationship with a New Zealand citizen or resident are granted residence
in New Zealand.
Executive Summary
2.
Immigration policies treat married and de facto couples differently in that de facto
couples must be living together for at least two years before the relationship will be
recognised. Marriages are recognised, however, as soon as that legal status comes about.
There is no good reason for maintaining this distinction. It is proposed that both married and
de facto couples be required to be living together in a genuine and stable relationship for at
least 12 months before the relationship is recognised for immigration purposes.
under the
3.
There is also scope for tightening the policies to reduce the potential for abuse and
ensure that only those in a genuine and stable relationship with a New Zealand citizen or
resident are approved for residence. The following policy adjustments are proposed:
Shifting the onus of proof to the applicant by replacing a requirement for the New Zealand
Immigration Service to accept a relationship as genuine unless there is evidence to the
contrary and with guidance on the factors that need to be taken into account in determining
whether a relationship is genuine;
Introducing minimum requirements for the recognition of relationships: that the couple are
aged at least 18 years (or 16 years if there is parental support for the relationship), are not
Released
close relatives and have met before lodging the application;
Enabling immigration officers to defer a decision for up to two years; and
Extending restrictions on sponsorship so that a newly sponsored partner may not
themselves sponsor a partner for at least five years, and may only sponsor one partner in
total.
4.
It is proposed that the changes apply to all relevant areas of immigration policy. This
Official Information Act 1982
would require a minor amendment to the Immigration Regulations 1999. Implementation
costs of $0.272 million (GST inclusive) in 2002/03 would be met from within Vote:
Immigration baselines.
Current Policy
5.
Immigration policy enables the spouses and partners of New Zealand citizens and
residents to be granted residence in New Zealand if the couple are living together in a genuine
and stable relationship, and are
either married
or have been living together in a de facto
relationship (opposite or same sex) for at least two years. In 2001/02, 5456 applications for
residence were approved under these policies, 85% of which related to relationships of
marriage.
6.
The requirement to be living together in a genuine and stable relationship, for at least
two years in the case of de facto couples, is applied to other relevant areas of immigration
policy, including assessments of:
Who is considered part of a family unit applying for residence under other categories
(for example, the General Skills Category);
Who may be granted a visa to accompany a student or work visa holder as their spouse
or partner; and
Who is eligible for a work visa on the basis of being the spouse or partner of a New
Zealand citizen or resident.
7.
Similar policy requirements are also applied to decisions on who may be granted a visa
on the basis of their intention to marry a New Zealand citizen or resident.
Problem Definition
8.
There are two problems with current marriage and de facto immigration policies:
(a) The policies differentiate on the basis of marital status; and
(b) The policies are not sufficiently robust to ensure that only those in a genuine and stable
relationship with a New Zealand citizen or resident are approved for residence under the
policies.
under the
Differentiation on the basis of marital status
9.
The policies treat married and de facto couples differently in that the latter are required
to demonstrate that they have been living together in a genuine and stable relationship for at
least two years, whereas married couples are required to demonstrate only that they are living
together in a genuine and stable relationship. The Human Rights Commission noted this
distinction in the context of the
Consistency 2000 project and recommended that “standards to
establish the genuineness of a relationship should take this into account to avoid marital status
discrimination”.1 The Immigration Act expressly recognises the potentially discriminatory
nature of immigration decisions and removes the ability of persons to challenge them under
Released
the Human Rights Act 1993. However, there must still be a good reason for maintaining any
distinctions arising from those decisions.
Potential for abuse of policies
10. The policies require that applicants be living together in a genuine and stable
relationship with a New Zealand citizen or resident. However, the policies also state that the
New Zealand Immigration Service must accept a relationship as genuine, unless there is
Official Information Act 1982
evidence to the contrary. In practice this makes it very difficult for a visa or immigration
officer to decline an application, even where an officer has reason to believe that the
relationship is not genuine and has been entered into with the sole purpose of gaining
residence in New Zealand. Furthermore, existing restrictions on a New Zealand citizen or
resident sponsoring more than one partner within five years are not mirrored for the partners
who have been sponsored. Immigration officers report that, in some cases, the new resident is
1 Human Rights Commission (1998)
Consistency 2000, Report to the Minister of Justice pursuant to Section
5(l)(k) of the Human Rights Act 1993, Instances of Conflict & Infringement document, p 39
2
promptly divorcing their New Zealand spouse and attempting to sponsor a new (often a
previous) partner from overseas.
11. The extent to which the policies are being abused is not known. There is some evidence
to suggest that applications from some areas, for example Pakistan, Thailand, Cambodia and
some parts of India, pose greater risks than others. However, because there is no requirement
to check that applicants are in fact living with their partner in a marriage or de facto
relationship after arrival in New Zealand, it is not possible to quantify the problem.
Comment
Alignment of marriage and de facto relationships
12. Officials are of the view that marriages and de facto relationships should be treated on
the same basis, in that it is the existence of a genuine and stable relationship with a New
Zealand citizen or resident that is relevant, not their legal marital status. Aligning the
recognition of marriage and de facto relationships for immigration purposes would be
consistent with a Cabinet decision of 3 September 2001, agreeing in principle that neutral
laws on relationships, whether married, de facto or same-sex, should be applied across the
board [CAB Min (01) 27/14 refers].
13. The marriage and de facto policies can be aligned by
either removing the requirement
for de facto couples to have lived together for a period of time
or imposing a time
requirement on married couples. Officials recommend that married and de facto couples both
be required to have been living together for a specified period of time. This would assist in
under the
reducing the potential for abuse, as all applicants would be required to demonstrate some
level of ongoing commitment to the relationship, and would discourage applications that are
unable to be properly assessed because of the short duration of the relationship.
14. It is proposed that that the required period of time be set at twelve months. This would
strike an appropriate balance between, on the one hand, discouraging relationships of
convenience and enabling immigration officers to make an informed assessment about the
genuineness of the relationship and, on the other, ensuring that the time requirement is not
unnecessarily onerous for genuine applicants. As under current policy, there would be scope
for the applicant to be issued with a temporary permit where there are compelling reasons for
them to be in New Zealand with their partner. However, a temporary permit would not be
Released
issued automatically and would be considered on a case-by-case basis.
Reducing the potential for abuse
15. As noted above, the New Zealand Immigration Service does not have good information
on the extent to which the marriage and de facto policies are being abused. However, there
are some areas of the policies that are clearly problematic and can be improved.
Shift the onus of proof to the applicant
Official Information Act 1982
16. The main barrier to good decision-making under the marriage and de facto policies is
the requirement for the New Zealand Immigration Service to accept a relationship as genuine
unless there is evidence to the contrary. While in theory the requirement provides some
protection against arbitrary decision-making, in practice it is very difficult for immigration
officers to obtain
evidence that a relationship is not genuine, despite having very strong
reason to believe that it is not. It is recommended that this requirement be removed and
replaced with guidance on the factors that need to be taken into account in assessing whether
or not a relationship is genuine.
3
17. The sorts of factors that would be taken into account would be consistent with the
factors listed in section 2D(2) of the Property (Relationships) Act 1976, which relates to
whether two people are living together as a couple. For example, they would include but not
be limited to:
The duration of the relationship;
The nature and extent of common residence;
Whether or not a sexual relationship exists;
The degree of financial dependence or interdependence, and any arrangements for
financial support, between the parties;
The ownership, use, and acquisition of property;
The degree of commitment to a shared life;
The care and support of children;
The performance of household duties; and
The reputation and public aspects of the relationship.
18. This proposal would shift the onus of proof to the applicant, as is the case with all other
areas of immigration policy. The nature of relationships means that the decision will
ultimately rest on the judgement of the immigration officer assessing the application. Setting
out the factors to be taken into account would ensure that there is a firm basis for decision-
making and would provide guidance to applicants about the type of evidence that is likely to
be required. Applicants would continue to have recourse to the Residence Appeal Authority.
Introduce minimum requirements for the recognition of relationships
19. As a policy principle, New Zealand legislation should be the framework within which
under the
relationships are assessed for the purposes of immigration policy. While policy should be
sufficiently flexible to meet the different cultural needs of New Zealand residents, the
standards applied should be consistent with New Zealand law. The policy already states that
a genuine relationship is one that is “entered into with the intention of being maintained on a
long-term and exclusive basis”. It is recommended that the following additional minimum
requirements be introduced for the recognition of relationships:
(a) The parties to the relationship are aged at least 18 years of age, or at least 16 years if
there is parental support for the relationship.
The Marriage Act 1955 requires people to be at least 20 years of age to marry (or 16 if
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they have parental consent). However, the age at which guardianship ceases is likely to
be reduced from 20 years to 18 years, or 16 years where the young person is married or
in a de facto relationship and there is parental consent for the relationship.2 18 years, or
16 years with parental support, would therefore be a more appropriate minimum age for
recognising marriages or de facto relationships for immigration purposes;
(b) The parties to the relationship are not close relatives.
This requirement would preclude relationships which are among the prohibited degrees
Official Information Act 1982
of marriage listed in the Second Schedule of the Marriage Act 1955; and
(c) The parties have met before the application is lodged.
20. These requirements would assist to minimise the potential for abuse and, in particular,
will help to address concerns about applications that involve internet relationships and proxy
2 This was agreed by Cabinet in May 2002 as part of a package of amendments to the Guardianship Act 1968
[CAB (02) M 10/7 refers].
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marriages3 where the genuineness and stability of the relationship is often difficult to
ascertain. Australia and the United Kingdom have similar requirements. The requirements
are unlikely to adversely affect anyone in a genuine and stable relationship with a New
Zealand citizen or resident. Applicants in a genuine arranged marriage would be unaffected
by the requirement that the couple have met, and temporary entry policy would continue to
enable people in such circumstances to travel to New Zealand specifically for the purpose of
marriage.
Allow deferral of decision for up to two years
21. Current marriage and de facto policies enable an immigration officer to defer a decision
on an application for six months if s/he has some doubt about the genuineness and stability of
the relationship. In some cases, six months is not enough time to resolve these doubts. It is
therefore recommended that this period be extended to allow immigration officers to defer a
decision for any period from six months to two years. This would mean that applicants would
not need to make a new application if the immigration officer is unable to approve the
application in the first instance. There would continue to be scope for the applicant to be
issued with a temporary permit where there are compelling reasons for them to be in New
Zealand with their partner during the deferral period.
Extend sponsorship restrictions
22. Officials recommend that the restrictions on sponsorship be extended so that a newly
sponsored partner may not themselves sponsor a partner for at least five years. This would be
consistent with the sponsorship restrictions introduced in October 2001 limiting New Zealand
citizens and residents to sponsoring no more than two partners, at least five years apart [CAB
under the
(01) M 41/5C refers] and with sponsorship restrictions in Australia. It would help to prevent
cases of people establishing a relationship with a New Zealand citizen or resident and then
divorcing them in order to sponsor a new (often a previous) partner from overseas. It is
recommended that people who have been sponsored for residence as a partner be able to
sponsor no more than one partner in total.
Application of proposed policy changes to other related immigration policies
23. As noted above, the marriage and de facto policies are applied to other relevant areas of
immigration policy. It is therefore recommended that the proposed policy changes also be
applied to other relevant areas of immigration policy that involve the assessment of a
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marriage or de facto relationship. Applying the proposed alignment of marriage and de facto
couples to other residence policies will, however, require an amendment to Regulation 20 of
the Immigration Regulations 1999. This regulation enables partners to be included on the
same application and defines de facto partners as “a partner of the principal applicant who has
been living with the principal applicant in a heterosexual or same sex relationship for at least
2 years immediately before the application is made”. This would need to be amended to
reflect the proposed alignment of marriage and de facto relationships for immigration
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purposes.
Implementation and Monitoring
24. If agreed, the proposed adjustments are likely to be implemented by the New Zealand
Immigration Service on 30 June 2003. The proposed adjustments would not affect those who
have already lodged applications for residence before this date.
3 A proxy marriage is where one party is unable to be physically present at the marriage.
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25. The Department of Labour would monitor the effect of the proposed policy adjustments
over the next two years. If there is evidence that the policies are still not robust enough to
ensure that only those in genuine and stable relationships with New Zealand citizens and
residents are approved for residence, the need for further policy adjustments would be
considered at this time.
Consultation
26. The Ministries of Justice, Social Development, Foreign Affairs and Trade, and
Women’s Affairs, and the Treasury were consulted in the preparation of this paper and agree
with its recommendations.
The Department of the Prime Minister and Cabinet, the
Department of Internal Affairs (the Office of Ethnic Affairs), Te Puni Kokiri and the Ministry
of Pacific Island Affairs were also consulted.
Financial Implications
27. Implementing the proposed policy adjustments would require changes to New Zealand
Immigration Service computer systems, policy manuals and business processes.
Implementation costs are estimated at $0.272 million (GST inclusive) in 2002/03 and would
be met from within Vote: Immigration baselines.
Human Rights Implications
28. The proposal to remove the requirement for de facto couples to have been living
under the
together for at least two years would align the treatment of married and de facto couples under
immigration policy.
Legislative Implications
29. There are no legislative implications associated with the proposals in this paper.
Regulatory Impact Statement
30. The proposed removal of the requirement for de facto couples to have been living
together for at least two years would require an amendment to Regulation 20 of the
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Immigration Regulations 1999. A Regulatory Impact Statement is not required because the
proposal is of a machinery nature and does not substantially alter existing arrangements.
Publicity
31. There would be no advance notice of these policy changes in order to mitigate against
the risk of a surge in applications. If the proposals are agreed, the Minister of Immigration
will announce the changes on the day that the policy adjustments take effect.
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Recommendations
32. It is recommended that the Committee:
1.
agree that immigration policy should treat married and de facto couples on the same
basis by requiring couples to be living together in a genuine and stable relationship;
2.
agree that married and de facto couples must have been living together for at least 12
months before an application will be considered;
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3.
direct officials to prepare an amendment to Regulation 20 of the Immigration
Regulations 1999 to enable the proposal in recommendation 2 to be applied to all relevant
areas of immigration policy;
4.
agree that the onus of proof be shifted to the applicant, by removing the requirement for
the New Zealand Immigration Service to accept a relationship as genuine unless there is
evidence to the contrary and replacing it with guidance on the factors to be taken into account
in assessing the genuineness of a relationship;
5.
agree to the introduction of the following minimum requirements for the recognition of
a relationship for immigration purposes:
(i)
The parties to the relationship must be aged at least 18 years of age, or 16
years if there is parental support for the relationship;
(ii)
The parties to the relationship may not be close relatives; and
(iii)
The parties must have met before lodging the application;
6.
agree that immigration officers be able to defer a decision on an application for
residence under marriage and de facto policies for up to two years;
7.
agree that a newly sponsored partner may not themselves sponsor a partner for
residence for at least five years, and may sponsor no more than one partner in total;
8.
note that implementation costs of these proposals are estimated at $0.272 million (GST
inclusive) in 2002/03 and can be met within Vote: Immigration baselines; and
9.
note that the Minister of Immigration will announce the policy adjustments on the day that
under the
they take effect.
Hon Lianne Dalziel
Minister of Immigration
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Document Outline