The romantic ideal of just one spouse or partner, to have and to hold as long as you both shall live, seems nowadays to be more the exception than the rule. For all sorts of reasons, people move on to a second or third long-term relationships – or even more. As many have found to their cost, however, New Zealand immigration rules only recognise those evolving life choices up to a point. The results are painful.
James Turner, our Staff Solicitor, wrote about this topic in February 2022 and explained how we were able to turn around a potentially disastrous dead-end for our clients. However, the distressing history of these situations keeps repeating itself. Take for instance the case of Sharon Choo from Malaysia, whose story was reported in the NZ Herald a few weeks ago. She is a mother of 4 children with her NZ husband Barry, and they have all lived together here for some years. However, Barry had previously sponsored 2 previous partners for Residence. This automatically makes him ineligible to sponsor anyone else, for the rest of his life, and Sharon’s Residence was declined in July 2022.
Use Your Appeal
Apart from the human dimension of this story, it is also concerning that Sharon does not seem to have appealed against the Residence decision. The Herald article does not refer to any appeal having been filed, and there is no record of such a case being decided by the Immigration & Protection Tribunal (IPT).
There is no guarantee that a “special circumstances” appeal would have succeeded, as each case turns on its own facts. [See our vlog on Residence appeals.] However, this case certainly seemed to have some merit owing to the interests of the couple’s New Zealand children. There might have been other distinctive features of the history to explore – for instance, how long ago did the husband sponsor the other 2 partners? It might have been decades in the past. How did those relationships end? In some cases it can be because of the death of a previous wife or husband, something over which the sponsor obviously had no control.
While Immigration must apply the Residence Instructions it has been given, the IPT has the discretion to recommend to the Minister of Immigration that an exception should be made, so that Residence can indeed be granted at the end of the day. Such an opportunity should not be ignored or wasted. Nor is it a good idea to rush off to one’s local MP, or write to the Minister for help. While it is true that the Minister of Immigration can give relief, he or she can just as easily refuse to assist, and is not bound to give any reasons for doing so.
Change the Rules
Pretty much everyone on both sides of the desk agrees that the Partnership Residence Instructions are out of step with current reality. Even Immigration staff and managers have told us that they are frustrated. For example, the expectation that couples can show finances in both names (such as joint bank accounts) does not reflect current social norms. Many people in genuine and solid relationships prefer to keep their money matters separate. That does not mean that they do not share care for and commitment to each other.
The rules that create the kind of trouble described earlier are:
- The NZ sponsor must not have “acted as a partner” in more than one Residence application in the last 5 years; and
- The sponsor can only act as a partner in 2 Residence applications in their entire life.
“Acting as a partner” means either being a visa applicant (including being a secondary applicant in a family’s Residence application) and being the NZ sponsor of a Partner Residence applicant. Because of this, it is easy to use up the quota of chances fairly quickly in the course of one’s life.
These restrictions were brought in years ago to stop people earning additional income by offering to be one foreign applicant’s partner in exchange for a fee so that they could get Residence, then repeating the exercise multiple times. Back then it was a bit of a problem, to be sure. Still, how much good does the second all-of-life rule do, when balanced against the misery it creates for innocent people like Sharon Choo and her husband? The risk of abuse of the system can be reduced by leaving in the first rule alone. A fixation on completely eliminating that risk ignores the fact that people’s significant relationships shift and change throughout a lifetime, and penalises them for shaping their lives in a way which is otherwise socially acceptable in any other circumstance.
If you, or someone you know, is worried that future plans for settling down in New Zealand are at risk because of these Partnership rules, contact us to discuss.