Just as I was going to write something for this blog, Immigration New Zealand released a change in its Instructions, namely, that any Residence application made by a family “must be declined” if any of their dependent children are in the country unlawfully.
This has already come in for criticism because it targets families whose child has a medical condition or cognitive disability which means that they have been refused visas. I have thought about this a bit, and I think that this is the main cohort who will be affected. There could be other situations, whereby parents simply overlook keeping their children on Student Visas, or a baby is born here and no-one thinks to regularise their status. There is a safety valve for these situations, in that parents could file a “section 61” request for a visa to fix the error, which INZ would probably grant in most cases like that.
What is Being Achieved Here?
So we are left with the children who fail the test for having an Acceptable Standard of Health (ASH). They were declined a visa, and they probably wont get one in the future under the normal rules. The stated rationale for putting in this policy amendment is to ensure that the family retains a consistent immigration status and none of them is “left behind”. One probable purpose is to dissuade those who have not-ASH children from applying for Residence at all. The other, and perhaps the more compelling one, is to close the door on the rest of a family getting Residence, and then seeking Residence for their other child through the back door (as some might refer to it) by way of a Humanitarian appeal or by a Special Direction request to the Minister of Immigration.
There is some precedent for this approach to Residence for a family group. For example, if one of those included in an application (perhaps the partner or a child) is found to have an expensive health condition, and they are not granted a Medical Waiver, then the whole application is declined. The same goes for someone who incurs a criminal conviction and cannot get a Character Waiver.
So What’s New Here?
But there is one key difference. In those other examples, the disqualifying factor belongs to one of the applicants. Under the new rule, the family’s Residence is declined because of someone who is not even part of the application. If they are an overstayer, they cannot be included (s 169(1)(a) Immigration Act 2009). The only exception is if the Residence application is made within 42 days of the child’s last visa expiring, in which case they have to be included, but the application would then go on hold until they get back on a visa.
What this all means is that the outcome of an application is determined by the status of someone who is not part of it, which seems to me a significant departure from the norm.
As the INZ release points out, people who get a decline can still appeal to the Immigration & Protection Tribunal on the basis that they have special circumstances that justify granting Residence to them, even though their child remains an overstayer. It will be interesting to see how the IPT handles these when they come through in the next year or two. One practical effect of this change in Instructions will be to add more Residence appeals to the already significant IPT workload, while the child can still approach the Office of the Minister for a Special Direction. I actually doubt that a family faced with this situation won’t apply for Residence at all, if they otherwise qualify, so that my earlier comment about dissuading people from making an application doesn’t really stand up.
The Role of the Caretaker Government
Finally, it was suggested in the news article referred to above that the Government has overstepped its role as a caretaker following the Election by introducing a new policy just this week. The duties incumbent on the interim administration are described in the Caretaker Convention. The general idea is that it is empowered to carry on the normal business of government, rather than doing nothing; but that significant matters – including “new policy initiatives” – should be deferred until the new ministry takes office.
The policy came into force on 12 November. While that is after the Election, I doubt that it was suddenly decided upon just this week. Residence Instructions have to be formulated, the specific wording drafted, and then certified by the Minister (s 22(1) of the Act). Given that the Election campaign and polling only ended last weekend, it is more likely that this process was completed a week or two ago at the latest. It is permissible for a caretaker government to put into effect decisions that had already been made before it took up that mantle.