Radical Immigration Changes on the Horizon

On 5 May 2020, an important and in many ways unprecedented Bill temporarily amending the Immigration Act 2009 was introduced to Parliament – The Immigration (COVID-19 Response) Amendment Bill.

The Bill survived first readings and has been referred to the Epidemic Response Committee for examination. The Committee is due to report on the Bill on the 12th of May, which is an extremely quick turnaround. Hence, providing a very limited time for key stakeholders to make submissions to the Committee before this Bill is set to become law on Friday, 15 May 2020. This rushed process is of great concern.

Who is going to be affected?

This Bill, if passed in its current form, over the next 12 months, will have a significant impact not only on current temporary and resident visa holders, or would be migrants, but also on employers and other industry sectors, including education and tourism. We understand there is a need for haste but safeguards need to be built into the Bill to ensure migrants, employers and other industry sectors are not prejudiced.

What is going to change?

The Bill gives the Minister of Immigration and immigration officers new discretionary powers that can be applied for the first time across groups or classes of people. This means that theoretically the Minister could, if he wished, remove all conditions for say Indonesian nationals on Work Visas tying employees to a single employer.

However, it is critical for stakeholders to understand that these new powers can be used to either to take away legal rights or bestow legal rights upon visa holders. For example, the Minister, if he wished, could take away the right to work for all Full Fee Paying Student Visa holders in New Zealand.

The Bill also gives the Minister the power to waive any application process (and presumably just grant visas on the basis of a request).

We note that the Government also proposes for some of the new powers (to grant visas to individuals in the absence of an application; to waive the requirement to obtain a transit visa; to revoke entry permission of a person who holds a visa) to be delegated to or exercised by immigration officers, but does not propose to report on their execution to the public or Parliament. Hence, limiting transparency and accountability of decision making in this regard.

Of most concern is the power to stop people from making visa applications or submitting Expressions of Interest, targeted at nationalities or points of departure.

It appears that the inability of people to travel to New Zealand at this time is being used by the Government as a convenient excuse for granting the flexibility to suspend the ability of people to submit Expressions of Interest and Applications – including in Visa categories where the processing time is many months. We do not support the implementation of this power.

We note that for many application categories the inability of people to travel to New Zealand at this time is irrelevant.

For example, Immigration NZ’s website currently says:

  • 90% of SMC Resident Visa Applications are processed within 16 months;

  • 90% of Investor 2 Resident Visa Applications are processed within 40 months;

  • 90% of Partnership Resident Visa Applications are processed within 10 months.

Immigration NZ has the power to put first entry to New Zealand conditions on a Visa when it is issued. For example, on issuing a Visa, Immigration NZ could say first entry to New Zealand must be within, say, 12 months of the date the Visa is issued.

We are concerned that the real reason the Government is granting itself the power to suspend submission of Expressions of Interest and Applications is because Immigration New Zealand had a massive backlog of Applications from before the border shut down and was not prepared for this pandemic situation with 1,000 Immigration New Zealand employees unable to work during Alert Level 4 and many unable to work during Alert Level 3.

It is our view that in its current form, the Bill does not contain sufficient level of safeguards. Greater checks and balances are needed, as well as transparency and accountability across all of the new powers.

What next?

In the next couple of days, key stakeholders will have an opportunity to give oral submissions before the Epidemic Response Committee. These hearings will be livestreamed to the New Zealand Parliament Facebook page, and website, where anyone can watch. The hearings will also be saved to both the Facebook page and the website to be watched at a later date.

Facebook page link: https://www.facebook.com/NZParliament/

Website link: https://www.parliament.nz/en/

We will continue to monitor the developments with the Bill and will provide further updates as needed.

Talk to us

If you have any questions about the Bill and its possible implications please contact us for professional legal advice that will give you peace of mind.

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.

Topics: All Select

Mike McMellon

Position: Consultant
Email: mike.mcmellon@pittandmoore.co.nz
DDI:  +64 3 545 6710