Immigration Adviser Newsletter

Contact Marty Logan – December 2021

In this issue, we look at recent Government changes to migrant visa residency pathways, unpack the latest announcement about vaccination requirements for non-citizens, and look at a recent case of immigration Adviser deception.

COVID-19 is still a major disruptor for the ever-shifting NZ immigration environment, with legislative and policy change coming thick and fast as the Government scrambles to keep up with the new normal.

You’ll read below about the Government’s move, after a considerable amount of pressure from desperate employers and visa holders, to fast-track residency for some migrants. In our opinion, the direction is a positive one, but it didn’t go far enough as it still left some people struggling with separation and uncertainty.

We also note the closure of the Work to Residence Visa Pathway from 31 October 2021 to first time applicants under the Talent (Accredited Employers) and Long-Term Skill Shortage List categories – applications will need to be made through the Accredited Employer Work Visa pathway once available – another layer of confusion and upheaval as people adjust to the new regime.

The new vaccination mandate for non-citizens arriving in New Zealand came into effect on 1 November, adding to the Government’s COVID-19 defences, but there are some exemptions for RSE workers and refugees.

It is clear we are in a period of shifting sands when it comes to immigration policy as the Government moves towards its revised immigration framework. Our role is to provide our clients with clarity and direction on the immigration pathways available to them.

We invite you to let us know via email if there is anything you would like us to provide information about. We would love your feedback, comments, queries, and suggestions as to how we can best help you.

Fast track residency change a welcome move for some migrants

The Government’s October announcement that it would be fast-tracking residency for 165,000 migrants was welcomed by many on temporary work visas, but Pitt & Moore associate Elly Fleming said the fast-tracked pathway would benefit some, but not all, visa holders.

The eligible visas include Work to Residence, Post Study Work and Essential Skills, and include the immediate family of the principal applicant.

In an article on news site Stuff, Migrant Workers’ Association of New Zealand spokesperson Anu Kaloti said that the move would benefit about 68% of temporary migrants onshore at the time.

To be eligible, the principal applicant must have been in New Zealand on September 29, 2021, and must hold or have applied for (and been granted) one of the eligible work visas.

“We cautiously welcome the announcement,” says Nick, “as it ends uncertainty for people who have been waiting since last year for Government action.

Pitt & Moore client Pinu Raja and his family were delighted to be eligible for the visa. Raja was in the country on a three-year post-study visa available to skilled migrants but found that gaining employment as a non-resident was difficult – with priority going to residents and citizens.

However, there are a number of Pitt & Moore clients who will not benefit from the new Resident Visa pathway, as the principal applicant must have been in New Zealand on September 29, 2021, and must hold or have applied for (and been granted) one of the eligible work visas, and the move does not help many clients who are separated from their families.

“[We] have numerous clients who are separated from their family, and this new Resident Visa pathway doesn’t address their separation in the short-term and possibly not in the long-term either, given how stretched Immigration New Zealand’s (INZ) resources are,” says Nick.

New Accredited Employer Work Visa being introduced in 2022

The Accredited Employer Work Visa (AEWV) will be coming into play next year on 4 July 2022, replacing the Essential Skills Work Visa, as well as the Talent (Accredited Employer) Work Visa and the Long-Term Skill Shortage List Work Visa.

Applicants who already hold a Talent (Accredited Employer) Work Visa or a Long-Term Skill Shortage List Work Visa can continue their pathway to residence. People who hold WTR visas and have applied for RFW may find their visa expires before their applications have been processed.

These people will still be able to apply for a WTR visa if they meet the visa requirements.This also applies to Talent (Accredited Employer) and Long-Term Skill Shortage List Work Visa holders who started a role in New Zealand but were outside of New Zealand in March 2020 and were unable to return to New Zealand due to the COVID-19 border closures.

These changes add to the complexity and uncertainty around NZ immigration at this point, so we recommend contacting us for advice on the best way to proceed.

New vaccination requirement for non-citizen travellers to New Zealand

On 3 October, COVID-19 Response Minister Chris Hipkins announced that full vaccination would become a requirement for non-New Zealand citizens arriving into the country from 1 November 2021.

Hipkins said that arrivals would still be required to complete 14 days in Managed Isolation and Quarantine, and all travellers, except those from exempt locations, would still need to have evidence of a negative COVID-19 test result within 72 hours of their first scheduled international flight. 

Failure to present proof of vaccination can lead to a maximum fine of $4,000. This mandate doesn’t apply to New Zealand citizens, children under the age of 17, and those who are unable to be vaccinated for medical reasons.

It’s important to note that RSE workers arriving as part of the one-way arrangement with Samoa, Tonga, and Vanuatu will also be exempt due to existing vaccination requirements, as will refugees. Exemptions can be sought from the Director General of Health on humanitarian grounds, or where people travelling with New Zealand citizens have not had the opportunity to be vaccinated within the timeframes.

Hefty fine for immigration deception

Immigration lawyers work in a position of trust, often for clients with minimal understanding of the law as it relates to immigration, and sometimes limited language skills. The case outlined below highlights the obligation of advisers to be honest with their clients and with Immigration NZ.

Deception by an Auckland immigration Adviser left a migrant couple unlawfully in the country and resulted in a $26,000 fine being imposed on the Adviser for deliberately providing false or misleading information to a client and Immigration NZ.

An Immigration Advisers Authority complaints and disciplinary tribunal found that Auckland Immigration Adviser Apurva Khetarpal was unfit to be a member of the profession.

The tribunal found that Khetarpal concealed from the client that their application had been declined, falsely advising that a Section 61 request was automatic. She also mistranslated the contents of a statutory declaration to her clients.

The Tribunal found that the Adviser engaged in dishonest or misleading behaviour, advised that she be prevented from renewing her licence for a maximum of two years, and directed her to pay compensation to the client in the form of $10,640 for legal fees, $5,000 for distress, and to pay a  $7,000 financial penalty.

Dishonesty puts a Licensed Immigration Adviser’s license in real jeopardy and serious or repeated dishonesty can result in the Adviser being suspended from operating.

If you are ever uncertain as to how to handle a particular immigration matter, then please reach out to us at Pitt & Moore – we pride ourselves on honesty and transparency in all our dealings with both our clients and with Immigration NZ.

From the courts

Court of Appeal decision in Gate Gourmet New Zealand

Workers at Gate Gourmet have successfully appealed a ruling that their employer did not have to pay them minimum wage during the COVID-19 lockdown in 2020 when they could not work because the company partly shut down operations.The Court of Appeal has set aside the Employment Court’s decision and reinstated the determination of the Employment Relations Authority.

Gate Gourmet was classified as an essential business during Level 4 lockdown, but as an in-flight caterer, had little work to offer its employees to fulfil 40 guaranteed hours per week of work. As such, they implemented a partial closedown and offered 80% pay with assistance from the Government’s wage subsidy scheme.

What does this mean for New Zealand employers?

This decision makes it clear that where the employer is deemed to be providing an essential service if an employee has agreed to work, they are entitled to be paid the minimum wage for the whole of their contracted hours, even where the employer is unable to provide work in the circumstances of a lockdown.

Justice David Goddard said in the Appeal Court’s determination – “It is not lawful to make deductions from wages for lost time not worked at the employer’s direction.”

This decision does not remove the ability of an employer to negotiate with employees for a reduction in hours or to take leave without pay.

It should be noted, however, that each employment agreement will contain different obligations and rights, so obtaining legal advice on any employment case is critical. Be sure to reach out to us at Pitt & Moore if you have any questions or concerns about your clients’ positions.

Pitt & Moore presentation at Immigration Law Conference

Pitt & Moore lawyers Marty Logan and Elly Fleming gave a presentation at the Legalwise Immigration Law Conference on 11 November, talking about Professional Conduct Issues in Practice.

The Conference focused on the latest developments in immigration law and policy.

In their joint presentation, Marty and Elly covered recent case law and provided tips for practitioners on how to manage compliance risk.

Pitt & Moore lawyers are experts in both immigration law and practice and employment law. This means that we can advise on immigration, compliance, visa-related issues as well as employment issues. We can ensure that you receive comprehensive legal advice on all aspects applicable to your particular circumstances.

From our office

We speak your language

At Pitt & Moore, we are proud that many of our lawyers and legal staff are fluent in their own native languages as well as many others – 12 to be exact including Dutch, German, Russian, Hindi, Gujarati, Urdu, Arabic, Mandarin, Cantonese, Japanese, French and Italian. We also have a staff member who is a sign language speaker.

Sometimes it can be very difficult to discuss personal matters with a lawyer, however, the reason for this shouldn’t be because of a language barrier.

The ability to communicate in a native language means better support around the legal process as people seek legal advice or access to justice or have discussions concerning immigration and visa processes.

The ability to speak your language is one of the ways we at Pitt & Moore make you feel more at ease, understood and help gain your trust.

Closing for Christmas
After a busy year, we are all looking forward to a well-earned break over the festive season. Our office will be closing on 23 December 2021 at 5pm and re-opening at 8.30am on 10 January 2022.

Upcoming dates of interest

17 January 2022: Fully vaccinated Kiwis and other eligible travellers can travel to NZ from Australia without staying in MIQ.

1 May 2022: Long awaited phased border opening to commence.

9 May 2022: Applications open for AEWV employer accreditation and job checks.   

1 July 2022: The implementation of the stand-down period comes into place. The stand-down period requires people on lower-paid Essential Skills work visas to leave New Zealand after a certain amount of time before they can apply for another lower-paid work visa.

3 July 2022: Applications close for the Essential Skills Work Visa.

4 July 2022: Applications open for Accredited Employer Work Visa.

Copyright subsists in this eNewsletter and in the articles in it. You are free to forward this eNewsletter to others as long as you do not alter it in anyway (including removal of this statement). The eNewsletter and articles must not be reproduced (except for the purpose of the recipient reading them) without consent.
Disclaimer: The information contained in this publication is of a general nature and is not intended as legal advice. It is important that you seek legal advice that is specific to your circumstances.