I would like to share a success story of a family’s ability to apply for residence and relocate to NZ after a failed residence application and an appeal. This case is particularly interesting due to the unique challenges faced by our client, which arose from incorrect advice and lack of knowledge regarding a specific rule in the residence partnership immigration instructions.

Overview of the case:

Our client was married to a New Zealand Permanent Resident Visa (PRV) holder. Her husband had secured residence in New Zealand as a secondary applicant in his former partner’s Skilled Migrant Category residence application. Years later, he met our client, married her, and supported her residence application under the family partnership category.

At the time, our client held a New Zealand resident visa with travel conditions valid for two years. Just before her travel conditions expired, she needed to travel back home for family reasons. She sought advice on what to do about the impending expiry of her travel conditions, and the advice she received was to let her resident visa lapse and reapply under the family partnership category when she was ready to return to New Zealand.

Five years later, our client filed another partnership residence application as the family were ready to relocate back to New Zealand. Immigration NZ (“INZ”) raised concerns that her husband was not an eligible supporting partner. This was because her husband had acted as a partner in more than one previous successful partnership application which the residence instructions did not permit. Immigration instructions at F2.10.10(a)(i) says that a New Zealand supporting partner must not have acted as a partner in more than one previous successful residence class visa application. This includes if they secured residence as a secondary applicant for another residence application. In this instance, the New Zealand partner got residence as a secondary applicant in his former partner’s skilled migrant residence application, and for a second time in our client’s partnership residence application that was approved several years ago. Even though, the husband was supporting the same partner for residence, he was still caught by the instructions. INZ declined the residence application because the supporting partner was not eligible to support the residence application under this barring clause.

An appeal was filed with the Immigration and Protection Tribunal (IPT). The IPT upheld INZ’s decision, as the barring clause applied even if the husband supported the same partner twice. The IPT did not find special circumstances to warrant granting residence as an exception, partly due to the couple’s significant time spent overseas.

Our Approach/Strategy

At that point, our client approached us for assistance as to what can be done to solve the issue. After discussing their situation we identified merits in their case. It was clear they had received incorrect advice about letting the resident visa lapse. We also recognised that factors in their case had not been properly presented during their appeal, which could have demonstrated special circumstances warranting a ministerial exception.

Not many people are aware of the barring clause which prohibits a partner supporting more than one successful applicant for residence. Hence, we usually ask the potential NZ sponsor two questions in every partnership case we come across:

  1. whether they had acted as a supporting partner in a previous residence application; and
  2. whether they secured residence under partnership previously or were a secondary applicant in another residence application.

Having exhausted the normal application and appeal options, we decided to pursue a ministerial request for a special direction. The minister has ‘absolute discretion’ to decide whether to consider the request or not. Absolute discretion has a legal meaning under the Immigration Act 2009, so that the minister does not have to give reasons for his or her decisions. This was the appropriate route because our client had exhausted all her options.

We framed the request by highlighting the couple’s complete case to the minister. In essence, the circumstances they find themselves in are far from the norm and can be attributed to a combination of factors—misguided advice, a temporary decision to leave New Zealand that extended unexpectedly, inability to meet the criteria for a Second and Subsequent Resident Visa as the supporting partner is not a New Zealand citizen, and an overall unfamiliarity with the immigration rules. We stressed the benefits of granting residence to the couple, such as their professional contributions to New Zealand and their strong, long-term commitment to relocating. The only remaining avenue for the couple to rectify this situation was through a ministerial request.

Our request for a Special Direction under section 378 of the Immigration Act resulted in a favourable outcome allowing them to file a new residence application and eventually to relocate to New Zealand.

Moral of the Story

This intense process required gathering extensive information and documents, with no certainty of success. A special direction from the minister is a last resort when all other options fail. It is important for those holding resident visas with travel conditions not to let them lapse. You should seek advice from a reputable immigration professional if planning to travel close to the expiry date of your travel conditions.

Additionally, those who got residence under partnership or as a secondary applicant in another residence application should be aware of the barring clause that can prevent them from supporting their future partners for residence. Each case has its own merits, so if you or someone you know is in a similar situation, then contact us for assistance.