Residence usually needs to be achieved within a reasonable time period
Policy settings make it important that a Visa applicant achieves the grant of a Residence Visa within a reasonable time period. This is because Temporary Visas usually do not continue forever. An Accredited Employer Work Visa can be granted for a maximum of 5 years, after which the applicant must spend at least 12 months outside New Zealand (a ‘stand-down’ period). Partnership-based Temporary Visas can only be granted for a maximum of 36 months, meaning Residence needs to be achieved before the end of the 36 months. Visitor Visas can usually only be held for a maximum of 9 months. There are other types of Temporary Visas that can only be granted for a specified period of time.
The effect is that, if an applicant cannot achieve the grant of Residence under one of the various categories available, they must leave New Zealand. Policy settings do not generally provide for applicants to stay in New Zealand on Temporary Visas for extended periods of time.
We often see situations where a client has a pathway to Residence which has some reasonable chance of success, but something happens along the way which has a significant negative impact on their ability to achieve that. We are called-in to try to fix the problem. I give some examples here of what can go wrong. I speak here with pathways to Residence through employment or partnership in mind, but a Residence application through an investment can also go wrong for the same reasons, just that there are other types of issues that can arise with a Residence application based on an investment too.
1. Failing to declare a declined Visa application for another country
Failing to declare a declined Visa for another country is taken seriously by Immigration, characterised as false, misleading or withheld information. There is usually a question on the Visa application form about whether an applicant has had any Visas declined for other countries. In many cases the wording of the question refers to declined Visas for countries ‘excluding New Zealand’, with the effect that declined Visa applications for New Zealand usually do not need to be declared.
Failing to mention a foreign visa decline, especially for countries like the United States, Canada and Australia, can make an Immigration Officer suspicious and is taken seriously. It is often quite difficult to fix such a situation (especially if more than one visa refusal is involved) once an Immigration Officer starts to say that the applicant has concealed information.
Although we might be able to solve this type of problem once, an Immigration Officer will sometimes raise the same concern in a later application or applications too, meaning the problem does not necessarily go away with the approval of one application and needs to be addressed again.
Instruction A24.10 states that applications with false, misleading or withheld information ‘will normally be declined’. An Immigration Officer will only consider ‘the circumstances’ and can refuse the visa for this reason alone. For a full character waiver to be considered, a new application needs to be filed, by which time the concealment of information is then with a ‘prior application’. This is not possible if the person has become unlawfully in New Zealand (their Visa has expired). The effect is sometimes that an applicant needs to leave New Zealand and re-apply from overseas.
The lesson is that if the question is asked, declined Visa applications for other countries need to be declared. If you have been declined a Visa for another country and you are concerned about the effect this may have on your application for New Zealand, this is something you can discuss with us and we can plan for how to handle this. For example, it might be that a character waiver is required.
2. A criminal conviction
Sometimes, something goes wrong for a person while they are the holder of a Temporary Visa and it results in them receiving a criminal conviction. A type of conviction we often see is for driving under the influence of alcohol. However, we sometimes see usually minor property-related (eg. theft) or violence convictions (sometimes involving an element of domestic violence, in a partnership situation).
The effect of receiving a criminal conviction on the holder of a Temporary Visa can include:
- The applicant can be served a deportation liability notice while still the holder of a Temporary Visa under section 157 of the Immigration Act;
- Even if the applicant is eventually granted Residence, they can in some situations still be served with a deportation liability notice under section 161 of the Act;
- INZ will raise the conviction as a concern requiring the grant of a character waiver in a Visa application. This will happen every time a Visa application is filed, whether for a Temporary Visa or Residence Visa;
These impacts mean that receiving a criminal conviction can be long-lasting and the impact does not go away after just one Visa application.
The lesson is that getting a criminal conviction while holding a Temporary Visa should be avoided. In situations where someone is facing a criminal charge, Simon Laurent of our law firm provides expert evidence on the effect of receiving a conviction in support of an application for discharge without conviction (s 106 Sentencing Act 2002). If a discharge without conviction is achieved and the person has no conviction entered, this can avoid the types of impacts described above.
Furthermore, a failure to declare a conviction in itself can amount to concealing information, which compounds a situation beyond the conviction itself (having the impacts described above). If you have a conviction and are concerned about the effect this may have on your application for New Zealand, this is something you can discuss with us rather than fail to declare it. We can plan for how to handle the situation. For example, it might be that a character waiver is required.
3. Using an unlicensed Immigration Adviser
In some cases and usually before arriving in New Zealand, an applicant has used the services of an unlicensed Immigration Adviser (usually unknowingly and without an awareness that Immigration Advisers must be licensed under New Zealand law). Providing unlicensed immigration advice is illegal, but it does not stop some from trying.
We see situations where the unlicensed advice is plain wrong, or sometimes the agent deliberately supplies false documents or evidence to try to mislead an Immigration Officer. For example, they may simply not understand the importance of properly declaring declined Visa applications, criminal convictions, or they may suggest to deliberately try to withhold this information.
In some situations, a client does not know what an unlicensed Immigration Adviser has done or not done in terms of declaring matters such as a declined Visa or conviction. It can be difficult or impossible to seek answers from the unlicensed Adviser. This makes it more difficult when trying to fix a problem later on.
The lesson is that to check that the Adviser you are dealing with is licensed, this can be checked here.
The types of problems decribed here can derail a pathway to Residence
The types of problems I have described here can significantly derail a pathway to Residence that otherwise has a good chance of success. In most cases, the problem can be avoided or managed, either by avoiding getting into difficulties in the first place or instead making sure it is carefully handled.
Because Temporary Visas do not continue forever, if a pathway to Residence is negatively impacted, it can significantly reduce the chance of the applicant achieving the grant of Residence.