‘Reconnecting’ New Zealand to the World from 1 May 2022

On Wednesday 24 November the New Zealand Government made the long-awaited announcements around timing for ‘reconnecting New Zealand’ to the rest of the world; or what many people assumed were to be announcements around opening New Zealand’s closed border to the rest of the world early next year.  But, is what has been announced a reconnection to the world and, in reality, how far is the border going to ’open’ in 2022?

From our perspective, what has been announced here is a master class in repackaging status quo (or close to it) under a guise of greater ‘border opening’.  The simple fact here is that prior to 1 May 2022 the border will not open wider, because the same very limited number of people who can currently travel to New Zealand has not been changed, they are just going to find it easier to get in because MIQ will no longer exist for the vast majority.  In essence, the changes coming in prior to 1 May are merely getting rid of the queue to enter due to MIQ constraints.

The announcement provides reassurance to Kiwis abroad about their ability to travel home and indicates that things are ‘moving in the right direction’.  However, based on the information that has been released so far, the announcement is very disappointing for a range of migrants and New Zealand employers who are desperately waiting to be able access highly skilled migrant workers to fill long-open vacancies.

There are three stages to the border ‘opening’ published, being the following:

  • Fully-vaccinated New Zealand citizens, certain New Zealand residence-class visa holders and other eligible travellers under the current settings from Australia from 11.59 pm on 16 January 2022;
  • Fully-vaccinated New Zealand citizens, certain New Zealand residence-class visa holders and other eligible travellers under the current border settings, from all but very high-risk countries, from 11.59 pm Sunday 13 February 2022; and
  • Fully-vaccinated foreign nationals (possibly staged by visa category), from 11:59pm on Saturday 30 April 2022.

In addition, eligible travellers from Indonesia, Fiji, India, Pakistan and Brazil will be able to enter New Zealand without the need to first stay in a ‘lower risk’ country for 14 days immediately prior to arrival.  Arrivals from Papua New Guinea will continue to have this restriction imposed on them.

January and February Entry

In relation to the first two cohorts being able to travel into New Zealand on 17 January 2022 and 14 February 2022 respectively, this will undoubtedly be received as positive news as MIQ is finally being taken out of the equation for a vast majority of individuals who are currently eligible to travel to New Zealand, although are simply prevented from doing so merely because they are not able to secure a MIQ voucher.  They will now be able to enter the country, albeit a bit later than many would hope.  We will leave the (Christmas) debate around that to other writers.

From an immigration context the issue we see with the first two cohorts is that they are based on entry for individuals who are currently eligible under the closed border settings, meaning there has not been an expansion on eligibility to enter for anyone outside this small core group.  Little has changed with the exception of loosening the restrictions for arrivals from ‘very high-risk countries’ such as Indonesia and Brazil.

We believe in due course more types of ‘eligible travellers’ may be added to those who are allowed to enter, but, we expect significant constraint here based on what is going to transpire in New Zealand with anticipated wider community-based spread of Covid-19 and (potentially) an unanticipated new cohort (refer below) that will be demanding entry as soon as possible that were not in the equation when these settings were decided.

For employers, if there was an assumption there would be greater ease on recruitment and moving skilled migrants into New Zealand to fill skill gaps before 1 May, think again.  The current limited system that operates a very high bar for border entry (via the border exception process) will remain in place, so there is no respite coming to those employers who are grossly understaffed and/or having difficulty filling skilled positions via the domestic market.  As such, we are picking a renewed spike in instructions around entry, particularly the very difficult and highly complex ‘Other’ Critical Worker requests that have dominated our practice for the last 12 months.

For ‘new’ resident visa holders granted residency visa prior to the border closure who have not been able to come to New Zealand (and are therefore locked out with auto-extended resident visas valid until 11 September 2022), they are all still locked out until at least 1 May.  This is hugely disappointing although we believe there will be changes here.

In a recent High Court decision (Afghan Nationals) of 22 November, the Court found that those who had residency applications under process, but not yet decided, cannot actually have the border restrictions applied to them because their applications were filed before those changes were implemented (i.e. the changes cannot be retrospectively applied to them).  Currently, for many offshore-based resident visa applications INZ has suspended processing those applications with a view that the applicant cannot enter New Zealand due to the current settings that prevent resident visa holders who have not travelled to NZ on their first resident visa from entering the country.  The Court has ruled that this approach is incorrect.  This means that anyone who applied for a residency class visa before border closure and have had their application processing suspended, may now be legally entitled to request that their application be processed, and they be granted a residence class visa according to this ruling.

Moreover, having established that right, it would be appropriate not only for those individuals to be issued resident class visas, but also for those people to be provided entry permission together with other resident visa holders who are currently being excluded too, because the resident visa rules they applied under did not include an ability to prevent entry into the country on those visas when they applied.

Given this Court ruling, it is our view that it would be reasonable to assume that INZ will give in on this point rather than appealing it (but that is a possibility), so current holders of new resident visas issued while the applicant was offshore (irrespective of the type of resident visa) will be added to the eligible traveller list.  This of course is positive in one respect, being a greater number of individuals holding residence visas and those who applied for them before border closure to come in, but on the other hand if the policy moves in that direction that could substantially increase the numbers of arrivals and that does not bode well for further setting changes allowing more people than can currently come in, because clearly the intention here is to limit the number of new arrivals to the current queue that has been formed, not expand it further.

Greater Border Opening from 1 May?

The big question therefore is what does the border opening from 1 May look like?  We are not holding our breath for a significant change in settings here either.  The information released by the New Zealand Government advises that there will be a staged re-opening of the border.

Our expectation is that it will be staged by visa category and have already communicated that view for some time now.  It will be slow and controlled, and if, for example, our tourism and hospitality sectors believe there will be a return of significant numbers of tourists coming to New Zealand mid next year, they will be sadly mistaken.  Many in this sector have expressed concern and disappointment that these people will not be able to return until May as they were expecting greater arrivals in Q1. However, it is actually worse than that, as we do not think they currently realise that 1 May is not going to be the magic entry date for those people, or at least not at the scale they expect.

We expect that any staged reopening of visa categories (for entry) will be in line with the current government’s overarching policy objectives, as we have seen over the past 18 months.  The work on this will start with the Reconnecting New Zealanders Ministerial Group that the Minister of Immigration will report to on proposed staging and phasing the re-opening of visa categories (and options for visa processing priorities) in December.   What will be interesting to us, however, is the work and lobbying from different sector groups as to what cohorts are able to come in from 1 May through to the end of 2022 and how the government will try to balance these considerations with its broader policy goals, such as lowering New Zealand’s reliance on migrant labour.  There will be significant pressure from businesses to allow more skilled migrants to travel into New Zealand, as well as tourist operators wanting to restore tourism, tertiary providers wanting to attract and bring in international fee-paying students and residents wanting to bring in more family.  There is clearly not going to be enough room for everyone based on the carefully crafted wording used in the media release.  It’s there, but subtle and easily overlooked, so we expect a growing heated debate in 2022 on this.

What’s the Problem?

The anticipated spread of COVID-19 through New Zealand and the strain on the health sector moving through the early part of next year undoubtedly has cast a shadow over the ability of New Zealand to open wider.  It is curious to us to note that when Auckland reopens it will move to the red traffic light which seems to suggest that the health system is already under significant stress.  If that is the case already, and with anticipated COVID-19 numbers and related hospitalisations increasing next year, the modelling obviously used to formulate the current plan has concluded a recommendation to limit international travel to New Zealand where possible, not open up to the rest of the world in a traditional sense to add to the challenge.

From our perspective, having had to endure multiple visa changes and represent many individuals and employers for humanitarian and critical worker entry requests, we were looking forward to a slow return to normality in 2022.  Unfortunately however, this announcement, which we believe will attract very wide criticism as not being a border opening announcement at all, does not bode well for a New Zealand system that does not seem to be able to manage a pandemic in the face of overwhelming pressure to open our borders wider.

For some sectors, including sectors relying on external investment, highly skilled workers, and international fee-paying students, this is very bad news when we take a closer look over the Tasman and compare ourselves with our Australian neighbours.

New Zealand could lose significant investment, skilled workers and international students to Australia because our border settings are still effectively closed when Australia is opening up to the rest of the world.  Many people who do not deal with migrants on a daily basis do not understand that many migrants actually look at a range of countries when considering migration, investment or study.  New Zealand is not always at the top of the list and although New Zealand does punch above its weight, people generally will not wish to wait when there are other options in comparable countries (like Australia) that present an option then and there that meets their timing expectations.

For those who do not understand immigration, visualise a tap with a very long pipeline to a reservoir of water.  If you turn that tap off and the pipe dries up, it takes a very long time for the water to make its way to the tap once you turn it on again.  In this sense, not only is our water line dried up, the reservoir is reducing too as other taps (from other countries) are turned on while ours is firmly off.  When we turn our tap back on, from mid next year, the reservoir is not going to be as full as it was and will take a very long time to return to normal levels.

Our view therefore, is that as the pandemic continues to take hold and New Zealand endures a long period of difficulty adjusting and managing the COVID-19 pandemic that many countries have already gone through, that ultimately we will suffer the consequences of not having the ability to open up in line with most of the OECD countries.  What has been traditionally held as a triumph in keeping COVID-19 out of New Zealand and New Zealand society running as normal and operating as normal, in our view, is about to come unstuck in an immigration/economic sense.

Our thoughts are immediately with a large number of New Zealand families that are still separated and will be so until at least May, and businesses, who have been struggling to attract talent for many months already, because that inability to attract talent and get them here will continue for most of next year.  The biggest concern areas are tourism, hospitality and the international education sector who all appear to be in for a very tough time over the next year too.

We can only hope that the country (the health sector) responds better than expected to the COVID-19 challenge next year and the settings are therefore released wider, but we doubt that.  The announcements made clearly stipulated that this was what was anticipated, but if things were worse than expected, there will be a further retreat.

If you are a New Zealand employer with issues bringing staff into New Zealand or an individual who is looking to enter New Zealand and were holding off in relation to greater the border opening that was expected early next year, reach out to us for some guidance.  We have developed industry-leading expertise here on living and breathing complex border entry applications over the last 18 months, so are happy to assist, where able, to secure entry to what is going to be, more or less, a mainly closed border for a large part of 2022.

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