Entry Through the Closed Border for “Critical Workers”

19/06/2020

INZ has now released its full detailed policy on the requirements that must be met in order for a person to be granted an exception to enter on the basis of being an “other critical worker”.  A general outline of the policy was covered in our article earlier this week although with the full release there are a few more important aspects to now cover.

view previous article

Although this policy still represents only a very slight easing of the border closure and will still therefore mean lots of applications will be declined, there are certainly some options to pursue for many employers.  We consider this policy will therefore still be welcome news to many New Zealand organisations that can submit well prepared applications for key employees or contractors stuck offshore.

Who is a “Critical Worker” – New Definitions Released

As covered previously the new policy splits critical workers in to two categories: being those who are required to come to New Zealand for less than six months in total and those who are required for six months or longer.  We set out the full requirements here for ease of reference, although we now expand further to cover off the definitions that have now been released (where applicable) that will allow employers to identify if it is at least possible to consider making an application.

A critical worker that is required to come to NZ for less than six months must:

  • Have unique experience and technical or specialist skills that are not obtainable in New Zealand; or
  • Be undertaking a time-critical role which:
    • is essential for the delivery of an approved major infrastructure project; or
    • is essential for the delivery of a government approved event; or
    • is essential for the delivery of a major government-approved programme; or
    • is in support of an approved government-to-government agreement ; or
    • Has significant wider benefit to the national or regional economy.

INZ have provided some further explanation of their expectations in relation to each of these different components that need to be met, as follows:

  • “Unique Experience and Technical or Specialist Skills not Obtainable in New Zealand”

Unique experience and technical or specialist skills means skills, qualifications or work experience which can only be learnt or gained overseas, for example in a specialist training institution or be working in a highly-specialised firm, or are inherent to a person.

In relation to “not obtainable in New Zealand” the skills above are not considered unobtainable if they are available to New Zealand but not to the employer or supporting agency, or are available but are developed to a particularly high standard in the worker.  Examples of workers meeting this standard may include highly specialist veterinarians, vendor-appointed engineers required to install major equipment, or an actor in a key film role to name a few.

  • Major Infrastructure Project, Government Approved Events, Major Government-Approved Project and Government-to-Government Agreements

INZ has now released a full list of all these.  As employers will note there is an extensive list and for those employers involved with any of those projects, perhaps even in a remote or contracting capacity, there is certainly a potential ability to apply.

view list here

  • Significant Wider Benefit to the National or Regional Economy

This is yet to be defined and therefore provides very wide scope for an application to be made based on a greater public interest argument.  This therefore is the part of the policy that is the “catch all” designed to allow applications that may not seem to fit into the defined criteria but still meet the underlying objective of the policy.  We have exception requests in and under consideration under this aspect so unless this is later defined (officially) by INZ (which we doubt) we will provide an informed view on this in a later article as we suspect this is going to be the main channel exercised for many employers.

In relation to a critical worker that is required to come to NZ for six months or longer must:

  • Meet one of the requirements above (for a worker required for less than 6 months); and
  • Earn at least twice the median salary (currently $106,080 per annum); or
  • Have a role that is essential to the completion or continuation of a science programme under a government funded or partially government-funded contract, including research and development partnerships, and has the support of MBIE Science, Innovation and International Branch to travel to New Zealand to carry out their work; or
  • Is undertaking a role that is essential for the delivery or execution of:
    • a government-approved event; or
    • major government-approved programme; or
    • approved major infrastructure project.

As readers will note the same definitions covered in the first critical worker category simply apply to this second category too.

While the definitions provided are beneficial and provide some signposting, they are still fairly loose for interpretation and given the discretionary decision making being exercised a rock solid case is going to need to be made under these exceptions.

Practicalities

Critical worker applications must be either employer or agency-led.  Our link referenced earlier sets out the lead agency for each project (where applicable).  It is not possible for an individual to make their own application under this pathway.  The employer or lead agency will also be responsible for covering the costs of the 14 day mandatory quarantine once the worker arrives in New Zealand.  At this stage, INZ have not specified what this cost will be, but our expectation is that it may sit around $10,000 per worker.

These requests will be considered and determined by a senior Immigration Officer, who may consult with the sector lead agency if required.  What this means is that for employers looking to pursue this channel a fair amount of engagement is going to be required with a lead agency before a request is lodged with INZ to make sure that aspect is covered appropriately and not left to chance.

This new process is a welcome change from the previous requirement to get sign off from the Minister for Economic Development and the relevant portfolio Minister as the process requirement for a dual Ministerial sign-off was always going to be time-consuming, so this new policy should allow for faster decision-making.  However, it does not create a short-cut.  A well-managed strategic approach to lead agency and INZ engagement on the request will be essential if employers are going to have any chance of getting a request through.  Ideally an approach in our view should be made to INZ by both the employer and lead agency supporting the request.

Ultimately If INZ approves the request; the worker will then be invited to apply for a Critical Purpose Visitor Visa, another visa that suits their circumstances, or a variation of conditions.

Strict health criteria will also apply before the worker is permitted to enter New Zealand.

Making a Successful Request

Although there is still a high bar to be met, we believe that with comprehensive, well-drafted submissions it will be possible to demonstrate that these policy requirements are met in a number of cases.   Readers will recall the Avatar film crew scenario where the Minister of Immigration has mentioned that the “significant wider benefit” of allowing the film crew in was the creation of 1,000 local jobs.  The way the policy is drafted now also potentially allows for scenarios where the scale of benefit may be much less than that of the Avatar scenario but still significant in a regional economy sense.

Our team of experts are already working with a number of New Zealand and international businesses to make requests for entry by exception under the critical worker route.   Conveying the compelling circumstances of the request in a manner that will enable INZ to tick their policy boxes whilst also ensuring there is no adverse impact on the wider public interest will be the key to success in these applications.

The opportunities to make these requests are diverse in their nature.  If you would like to understand if your situation is one that could be successful under this pathway and may appreciate some strategic advice around lead agency and INZ engagement, get in touch for a no-obligation discussion on what your options may be.

get in touch

Contact us to speak to our expert team about whether your employees may be able to qualify for an exception. We are currently working on exception requests for entry with the new criteria.

contact us

contact

Mark Williams
Partner, Lane Neave

t +64 3 353 1063
m +64 21 222 2363
e mark.williams@laneneave.co.nz

Rachael MasonRachael Mason
Partner, Lane Neave

t +64 3 372 6323
m +64 21 1306 540
e rachael.mason@laneneave.co.nz

Daniel Kruger
Partner, Lane Neave

t +64 9 300 6262
m +64 27 517 4828
e daniel.kruger@laneneave.co.nz

sign up for news

Our team issue regular newsletters on immigration-related topics as well as up-to-the-minute alerts when immigration policy changes are announced.

sign up to receive news