Phase 2 of the one-time 2021 Resident Visa scheme (“2021 RV”) begins today, Tuesday, 1 March, for most people. About 100,000 eligible Work Visa holders are expected to apply. The sheer volume of cases will amplify an aspect of Immigration Instructions which has been around for some years, but which will create real problems for a number of migrant families.

The Rule

In 2017, the requirements for filing a Residence application were changed to say that a main applicant must

include all dependants of the principal applicant where they hold or have applied for a temporary entry class visa based on their relationship to the principal applicant”.

Here, “dependants” means the partner or children. The effect of this is nailed home in another part of Immigration Instructions which says that dependents:

cannot be removed from that application while the application is being processed, unless a change in circumstances results in the partner ceasing to be the applicant’s partner or the child ceasing to be a dependent child.

Both of these stem from the wording of the Visa Regulations which govern the way visa applications must be lodged. These are signed off by the Governor-General by Order in Council; they are subordinate legislation and of greater legal authority than Immigration Instructions.

The mischief that this was meant to cure was, partly, the creation of split-family situations. For example, a couple applies for Skilled Migrant Residence based on the wife’s good job, but her husband has a costly medical condition. Her application would be declined if he was included. This is because Residence for a family group is a single application – if one person doesn’t qualify, they all get declined. So they agree to take him off the application, and after she gets Residence she applies for him separately, claiming that if he doesn’t get Residence, she will have to give up her NZ job to return home, Families would spend years fighting their way through visa processes, people overstaying and trying humanitarian appeals, only to fail in the end and leave their lives here, disappointed.

How It’s Playing Out Now

The most troubling part of the policy is that an applicant is forced to include any dependant who “has applied” for a visa. That is, they had applied at any time in the past, even if they aren’t here now; and this even includes cases where the application failed.

The 2021 RV was meant to be a quick and tidy way to allow people on job-based Work Visas to settle. The trouble is that, in a number of cases we have seen, it is not going to be that easy. For instance, the NZ-based partner has been here for some years while the spouse and children remain in the home country (to finish schooling, or because the path to Residence had been too uncertain to make plans). The overseas partner had once applied for a Partner of a Worker Visa several years back. Many of these have been declined in the past, most notably by the notorious New Delhi branch of Immigration New Zealand. The couple must now prove that they are living together in a genuine and stable relationship in order for the whole application to succeed. But, of course, they haven’t been doing that for a long time now. So the whole case will have to go on hold for one of the following to happen:

  • The main applicant withdraws his partner from the application; or
  • The overseas partner applies for a Work Visa to be able to come over and make up the required 12 months together, although that is a long shot if they have already been refused a visa based on their relationship.

So far, this issue has only been the subject of a couple of appeals to the Immigration & Protection Tribunal. In JR (Skilled Migrant) [2019] NZIPT 205465, Immigration responded to questions from the Tribunal about what the policy meant. It pointed to its own VisaPak 341 which said that “has applied for” only related to family members who had a temporary visa application underway at the time the Residence case was filed, and not before. This was the “narrow interpretation” of the wording. The IPT rejected this because VisaPaks were not binding and did not take the place of the Regulations or the Instructions as they were written. It was critical of the ambiguity in the wording of both the rules, saying that if this is what INZ meant, it needed to rewrite the Regulations and the Instructions to make this clear.

There is a solution to this if a relationship has broken down, because the couple could prove that they had divorced or make joint statements that they had permanently separated. What about children, though? If the couple had split and had agreed that the child should stay back in the home country, why should the NZ partner be forced to include the child in the application when neither of them wanted this? If the main visa applicant does not have the right to decide the child’s country of residence, but must add the child to the 2021 RV application because they once applied for a Student Visa for them, then once again the parent’s Residence application is doomed to failure unless, again, the child is later withdrawn.

It is not enough for INZ to say that they’ll simply apply the narrow interpretation from now on. As the rules are not spelt out clearly, applicants would be unwise to rely upon a promise to do one thing when INZ’s own rulebook says something else. Other systemic problems are the level of staff churn in the department, so that it is inevitable that many staff being pulled in to turn over the 2021 RVs are relatively inexperienced; and the caseload pressures which are even now pushing out processing times on all fronts into many months, or even years.

A Final Solution

It’s simple, really – rewrite the rules of the game. If INZ believes that the “narrow interpretation” is what they meant, then this requires two adjustments. One is to the underlying Regulations, and the other is to the Immigration Instructions signed off by the Minister. In both cases, the wording should be amended to require only that an applicant must include dependents “who hold a temporary entry class visa based on the relationship, or are applying for such a visa at the time the application is lodged.”

Now, changing Regulations is a bit more involved than amending Instructions, but in my opinion Immigration should move on this right away. If only 1% of cases are affected by this issue – and I think that is a very conservative estimate – then the visa pipeline will get clogged with difficult cases which managers did not anticipate. And the IPT could end up with a thousand appeals, which would double its current caseload across all appeal types.

There is a narrow window of opportunity. People can file their 2021 RV until the end of July this year. If they are told that the rules will be changed, then there is good reason for them to hold off until the ink is dry on the amended Regulations and Instructions. If the MBIE policy people do nothing, this invites a lot of expense, time and stress – on both sides of the desk. Does anyone really need more of that during these turbulent times?