Avatar did it – here’s wow you can too – economic border exception process explained

As many readers of this article are aware the New Zealand Government has recently revealed, through Economic Development Minister Hon. Phil Twyford, the existence of a very little known category for border exceptions. This category is for individuals deemed essential to a project of significant economic value in New Zealand or, a wider benefit to the economy.

Minister Twyford also advised that the bar is set very high for those determinations and based on our understanding this has been reiterated to lead agencies who now have the ability to decide to support individual or group applications at their discretion.

Until now however, even the existence of this category has been largely kept under wraps and the process for securing an exception has been even more closely guarded. There have been approximately 10,000 applications received by Immigration New Zealand (INZ) for border exceptions and only just over 2,000 have been approved. Of these, we understand somewhere between 200 – 300 have been issued for varied economic reasons, although it should be noted that these exceptions are inclusive of the existing ability for workers to enter New Zealand to work as (non-health related) essential workers that have always been part of the exception process.

For those looking to advance a request under the current (non-health related) essential worker exception, the following process applies:

• The company in question (or individual) needs to apply to the Agency responsible for their Sector.
• The Agency will then decide if the application has merit and whether it will support the application.
• If the Agency supports the request they have to apply to the Ministry of Business Innovation and Employment (MBIE) who will then consult with INZ on the request.
• If there is full support at that stage (support Agency and MBIE/INZ) then the final decision to approve entry is made as follows:
  • For individual applicants – the Minister of Economic Development and the Minister responsible for the Sector concerned; or
  • For classes of people (e.g. miners) – Cabinet.

As you will note, quite high level Ministerial (and in some instances, Cabinet) sign off is required for these exceptions and therefore the ability to secure the exceptions under the current regime is extremely limited.

We set out below the relevant sectors and lead agencies responsible for considering requests:

Sector	Lead agency
Abuse in Care	Royal Commission of Inquiry into Abuse Care
Border	NZ Customs MBIE Ministry for Primary Industries
Broadcasting	Ministry of Culture and Heritage
Building and Construction	MBIE
Conservation	Department of Conservation
Corrections	Department of Corrections
Defence	Government Communications Security Bureau Ministry of Defence NZIC Joint Directors Office
Education (Tertiary)	Ministry of Education
Energy (electricity, fuel, gas)	MBIE
Financial Services	Financial Markets Authority Reserve Bank of New Zealand
Fire and Emergency	Fire and Emergency
Food and Beverage Production and Processing	Ministry for Primary Industries
Health	Ministry of Health
Housing and Urban Development	Kainga Ora
Immigration	Immigration New Zealand
Lifeline Utilities	National Emergency Management Agency
Maori	Te Punui Kokiri Te Arawhiti
National Government	State Services Commission Department of Prime Minister and Cabinet
Pacific	Ministry for Pacific Peoples
Science	MBIE
Social Service	Ministry of Social Development
Supply Chain and Infrastructure	MBIE
Telecommunications and ICT	MBIE
Three-waters Infrastructure Local Government	Department of Internal Affairs
Tourism	MBIE
Transport Services	Ministry of Transport
Waste	Ministry for the Environment
Water Quality	Ministry of Health

While it is possible for any person and/or their employer to make an application via contact with their lead Agency to commence the process, as provided above, the bar has been set extremely high and a very good economic case will need to be provided, most likely, that makes it firmly in the public interest to allow the border entry as an exception.

It should also be noted however that we are of the view that moving into next week (possibly as early as Monday) the Government may announce policy around staged border re-opening which we believe will, slowly, open up the exceptions and allow the return of a number of existing visa holders who are currently in a holding pattern offshore. This policy is inevitable given the tremendous pressure the Government is under to open the border to stimulate the economy. Also, the movement into reduced alert levels resets policy parameters hence our view around timing of the release of policy to coincide with a move to Alert Level 1.

The difficult balance to strike however for a longer-term border management strategy is protecting the health of New Zealanders (including those who would be required to treat individuals who enter the country with COVID-19) and having sufficient infrastructure to manage a larger number of people undertaking mandatory quarantine. There is also the issue of the significant cost (currently borne by the New Zealand Government) that each person in mandatory quarantine represents.

It is inevitable to us that public-private partnerships will need to be undertaken between the Government and the hotel industry in order to expand infrastructure rapidly to enable the border to slowly re-open in a controlled and safe manner. It is hoped that public-private partnerships have been part of the discussion already because that is what will be required to make a greater (volume-based) border opening work and a fair amount of time will be required to set them in place.

While this article provides a useful summary of the actual process that has not been publicly released (as far as we are aware), this policy may well be a moot point moving into next week as we do anticipate some announcements on border opening and the slow transition of individuals offshore who have the legal right to enter New Zealand to be able to travel to New Zealand and exercise that right.

The form, manner and timeframes for the entries are the only real questions to be answered, let’s hope the Government has got that right.

More to come from us possibly next week on this, although if the anticipated announcements are not made in the short term on border opening and timing, or perhaps they are not as open as envisaged for some, then the exception process outlined above can still be followed. We have guidance on the form/content of a submission required to be made to a lead Agency so if you feel this exception may potentially be an avenue for you or your employees stuck offshore, please reach out to us to assist with the request.