Following concerted protests from the Indian community in particular, and intervention from the Prime Minister, Immigration agreed to review the rules on Culturally Arranged Marriages (“CAM”) to allow overseas partners to get visas.  The new visa Instructions came out yesterday, and take effect immediately.

However, they solve only part of the problem.

How Did We Get Here?

The previous CAM policy allowed New Zealanders who got engaged to someone in the home country to sponsor them, provided they could show that the match was arranged according to an “identified cultural tradition”.  It did not cover people who had already married, and by that simple fact they were required to apply for a Partnership Visa.

A key difficulty with this is that Immigration interprets Partnership policy to require a couple to show that they are, or have been, living together for long enough to be treated as being in a “genuine and stable” relationship.  Experience showed that a minimum time together of 3 – 4 months could qualify.  Many people had genuinely married, but only spent a few weeks together before the New Zealand partner needed to return to their job.  In such situations, visa officers had been using their discretion to grant a General Visitor Visa (GVV) to allow the couple to test the relationship onshore before applying for a proper Partner visa.

Then came Visa Pak 400, which “clarified” that people who didn’t meet the living together criteria could not expect a GVV as of right.  In a way, it was saying nothing new.  However, the result was the visa officers were rejecting Partner visas, and refusing to consider GVVs, out of hand irrespective of other indicators that the marriage was real.

The record needs to be put straight here.  Some news reports claimed that Immigration was imposing a rule that couple had to have been together for 12 months before they could do a Partnership visa.  That was never the case – the 12-month requirement only applies to Residence applications.

The New CAM Policy

These Instructions have been extended, to allow those who have married outside New Zealand to put in a CAM application without the “living together” requirement.  The non-NZ partner can then get a 3-month Visitor Visa to enable them to begin living with their spouse here, and apply for a Partner visa before their Visitor Visa runs out.

The test for a “culturally arranged” marriage has been changed as shown by the addition of the highlighted words:

the marriage follows an identified and recognised cultural tradition where the arrangements for the marriage, including facilitation of the selection of the persons to be married, have been made by persons who are not parties to the marriage

What INZ will accept as a “recognised” tradition remains to be seen.  Historically, it has often been a challenge in proving what the couple’s traditions are, and that they have been followed to the letter.  The policy has always allowed for evidence from an independent source, which could include third party research, or a letter from a community leader.  However, care had to be taken to ensure that the story that was told about the betrothal arrangements was entirely consistent with the tradition.

Another big snag is that the couple must have met before the visa application is made.  By the very nature of arranged marriages in some quarters, that does not happen, and sometimes is not supposed to happen.  This requirement undermines the very purpose of having the CAM policy for these people, and it has not been changed.

The reference to “facilitation” may actually be a relaxation of the previous rule that others (usually the couple’s families) had to select them for each other.  On the other hand, it may reinforce the need to prove how those arrangements took place, which can be difficult if such discussions are purely verbal.

Make no mistake, the CAM policy was, and remains, a difficult one to meet.

Others Left Out in the Cold

What about people who have informally been introduced but have not followed the pattern of what their ancestors did?  There are many of those, and they cannot use the new CAM Instructions.  Societal changes have eroded the customs of many communities, so that although a couple may still seek approval from their families to wed, they actually choose their partner for themselves in the “Western” way.  Concern has already been expressed about why culturally arranged marriages have been singled out under the changes.

They, then, are back with Partnership Instructions and the vagaries of how these are applied.  In order to recognise a valid partnership, Immigration is required to apply 4 criteria:

• Credibility – are they believable in what they say about their relationship?
• Living together – unless there are “genuine and compelling” reasons for being apart;
• Genuineness of their reasons for being together, and in their intention to remain in the relationship long-term; and
• Stability – is the partnership or marriage likely to endure?

Visa officers must apply all 4 of these tests.  In many cases, however, they have paid lip-service to this requirement, and used the lack of time living together as the sole reason to decline an application.  This is evident from numerous decision letters that I have seen, and it has been the source of vigorous discussion between INZ and the immigration industry.

As can be seen, living together is only one test to be applied.  It is true that, technically, Immigration can decline an application if that ground is not satisfied.  But for someone to decide that a husband and wife, whom they have never met, is not in a true partnership simply because they have not put enough time on the clock, is contrary to the structure of this policy.  It is detailed, and encourages INZ staff to take a nuanced approach to such assessments.

Also yesterday, Immigration released an Internal Administration Circular which opens the door for visa officers to consider a GVV for those who have not recorded much time living together.  It states that this could be granted for a “family visit”, and the mere fact that they might then go on to apply for a Partnership visa after arrival should not in itself invalidate the genuineness of the visit.

However, the IAC leaves broad discretion firmly in the hands of visa staff.  It also stresses that any applicant must prove that they have a bona fide intention – that is, that they have a genuine intent and lawful purpose in coming to NZ.  I, for one, am not convinced that this new guidance will result in real advantage for applicants, as they can still be declined for a perceived lack of bona fides, instead of using minimal time living together as the justification for denying a visa.

The present political storm, and Immigration New Zealand’s attempt to smooth it over, might have been avoided.  To be fair, INZ has faced huge challenges of restructuring and high staff turnover, at the same time as a major upswing in demand for temporary visas in particular.  Staff training and experience (or lack of it) is a real issue.  But so are the lives of New Zealanders, their partners and their families, who have suffered distress and turmoil because of a mechanical application of the rules.