As we write, new law relating to Immigration is being discussed in Parliament. Once it has passed through Parliament and has received the Royal Assent, the Immigration (Covid-19 Response) Amendment Bill will make major changes to New Zealand Immigration Law. Details regarding the new law can be found on the New Zealand Parliament website here.

The Way Things are Now

The current law has limited ability to deal with groups of individuals, which creates difficulty in emergency situations such the Covid-19 epidemic where a large number of visa holders have been affected.

The Immigration Act contains some emergency provisions which apply where the Prime Minister has issued an Epidemic Management Notice, for example the extension of valid visas for 3 months after the day on which the Notice expires. However, some migrants may have lost jobs and want to start a new one, some have had their hours reduced and some migrants may have had their pay affected. The current law does not deal well with such situations. It was drafted in 2006 when New Zealand had much fewer Temporary migrants, and the Government believes it is not fit for purpose right now.

As at 27 April 2020, there were approximately 350,000 temporary visa holders in New Zealand.

• 200,400 have work visas whose visa employment conditions may need to be varied in response to Covid-19;

• 74,800 are student visa holders whose visa conditions may need to be relaxed, to enable them to change their course or work extra hours until education providers are able to reopen;

• 56,500 are on visitor visas, who may need to have the expiry date extended, if commercial flights out of New Zealand continue to be unavailable;

What’s in the Amendment Bill?

The new law creates 8 powers, most of which are exercised by the Minister of Immigration by way of Special Direction. They enable decisions to be made about whole classes of people, and may depend on things like their visas status, their nationality, or what kind of travel document they are required to hold. The powers are:

  • to vary or cancel conditions for resident class visa holders;
  • to impose, vary, or cancel conditions for temporary entry class visa holders;
  • to waive any regulatory requirements for certain visa applications;
  • to grant visas in the absence of an application;
  • to extend the expiry dates of visas;
  • to waive the requirement to obtain a transit visa;
  • to revoke the entry permission of a person who has been deemed by regulations to hold a visa and to have been granted entry permission;
  • to suspend the ability of some people to make applications for visas or submit expressions of interest in applying for visas.

It is expected that the Amendment will be enacted by 15 May 2020, which is very quick. The speed at which the new law is being made could raise concern. It is a critical feature of a functioning democracy that the public and Parliament are able to scrutinise law. We are yet to know the precise manner in which the powers may be exercised. Certainly, the new law gives significant power to the Minister of Immigration.

Having said this, the new powers do not allow the Minister to do absolutely anything unchecked. They are time limited and will automatically come to an end after 12 months. The powers can only be exercised to contain or mitigate Covid-19 and its effects.

Furthermore, when a power is to be exercised, this must first be put before Parliament who may “disallow” it. If Parliament allows it to go ahead, it must be published on the website of the Ministry of Business Innovation and Employmentas well as in a Government document called the Gazette. The thinking is that this will allow for sufficient scrutiny of the powers when exercised.

Some say that these measures are not enough, and that there are inadequate safeguards on the exercise of the new powers. At the time of writing, the new law is being discussed at Select Committee. Some submissions to the Committee raise the concern that, without proper checks and balances, a situation of “unbridled power” could be created. “Unbridled power” is the title of a book by former Prime Minister Geoffrey Palmer (1989-1990) and refers to a situation where a member of the Executive branch of Government, for example a Cabinet Minister, is effectively able to make decisions of their choosing, unchecked by opposition parties in Parliament. Unchecked power resting in a Cabinet Minister may represent a threat to democracy.

Damage Control

However it is clear at the moment that Immigration New Zealand is facing a significant difficulty in dealing with a large queue of applications, with delays in the processing of application being made worse by INZ staff being unable to work remotely from home during the lockdown; see for example here. The Covid-19 situation is war-time like and unprecedented, which provides a context for the new powers. In such crisis situations, Government may well need powers that enable it to act quickly and swiftly. In any lesser context, the powers may not be appropriate.

If the Minister of Immigration does not receive the new powers, once the lockdown ends INZ is going to find itself with a very significant visa application headache. It is suggested that, at a time of uncertainty for migrants, the swift exercise of relevant powers by the Minister of Immigration may be necessary to resolve the situation. In addition to the safeguards that do exist in the new law, the Minister of Immigration will be accountable to Parliament in the usual way during Question Time and also by the media.

We will try to keep people up to date on how the Amendment Bill will play out. If you have not done so already, subscribe to this blog or get on our newsletter mailing list.