The 2021 Resident Visa – finer policy review

Immigration New Zealand have recently released the full policy that applies to the new 2021 Resident Visa Category (21 RV).  The highly anticipated detail formulates the long awaited (and controversial) “immigration reset” by granting residence to approximately 165,000 temporary visa holders.  Successful applicants under the policy must demonstrate they are settled, skilled or scarce to secure residency, otherwise, they will exposed to the full force of polices that will slowly be introduced in 2022 that will be designed to prevent sectors and regions again becoming reliant on migrant labour to function.

The policy is very generous (in some respects) as they look to “wipe the slate clean”, although the policy is certainly not without complication and there are a few areas where we anticipate some migrants and their employers being caught out, as well as some remaining questions from us on how INZ is going to manage fraud in a few areas as some of the evidential requirements have not been thought through and as a consequence are fairly weak in some areas.

The  21 RV will open on 1 December 2021 to “eligible” work visa holders who already have a residence application under the Skilled Migrant or Talent Categories in process, or who have lodged an Expression of Interest under the SMC, providing it included a dependent child aged 17 years or older (“Phase 1” applicants).  The rest can apply from 1 March 2022 (“Phase 2” applicants).

The following are our initial thoughts on the policy.  We are likely to send out additional communication as INZ release further supplementary information and bespoke interpretation advice as cases are worked through and precedents set:

  • Applicants who will only become eligible to apply on 1 March 2022 (Phase 2 applicants) may have character concerns raised against them or, at worst, have an application declined on character grounds, if they try to apply earlier with Phase 1 applicants from 1 December 2021. The online form for Phase 1 applicants will require them to ‘declare’ that they meet the criteria for lodging early, as outlined above, so anyone who provides a false declaration will have character concerns raised.  This is one of the biggest (potential) ‘barbs’ in this policy and is likely to catch many self-represented applicants who are overly eager to apply if this is the case.  In the meantime, applicants need to get expert advice to make sure they are applying in the correct Phase, to avoid this potentially harsh outcome.
  • Work visa holders who were prevented from returning to New Zealand following the closure of our borders in March 2020 may not be eligible under the ‘settlement’ pathway if they have spent 821 days outside of New Zealand since 29 September 2018. INZ has confirmed there is no room for discretion here even if the applicant has an otherwise long-standing history living in New Zealand.  We have clients who, for example, have lived here for 10 years and have raised their children here, but will be barred from securing residence under this policy because they happened to be outside of New Zealand when the borders closed and could not return until later in 2020 when INZ released a bespoke border exception for such individuals.  We expect robust litigation in this area and expect to be filing a number of appeals to the Immigration and Protection Tribunal (IPT) on this point, as well as Special Direction requests to the Minister for the discretionary grant of residence.  We have had success for similar applicants under the South Island Contribution Category so please reach out if you think this might be an issue for you.
  • INZ is likely to take a tough stance on applicants who are looking to rely on recent salary increases to $27 or more per hour in order to show “skilled employment.” Under the new policy, only applicants who can show that the increase occurred on or before 29 September 2021 will be considered ‘skilled.’  The responsibility will be on the applicant to provide evidence of this.  INZ will also be wary of applicants providing false information under this policy, so self-represented applicants must tread carefully and only rely on this policy if the increase was genuine and agreed to before the date in question.  The reason for this, is that the evidential requirements to prove income at that level as at 29 September 2021 appear open to fraudulent activity.  We have already heard of some proposed ‘gaming’ in this area.  As a consequence, we are anticipating “over” application of this criteria to compensate the evidentiary issue, meaning that employees who genuinely secured a pay rise prior to that date but that was not reflected in wages received after (or slow paperwork) may encounter significant resistance from INZ.
  • Reliance on having work in one of the ‘scarce’ listed occupations is also likely to be potentially complex, particularly if the applicant had nominated (or INZ determined) a different ANZSCO code during their last employer-assisted work visa application made. Under the policy INZ has the ability to consider additional evidence under this policy, so we expect the ability to challenge INZ’s assessment of an applicant’s role to be open.  Many applicants will get a shock however when INZ suggest their role is at a different ANZSCO than the one they believe.  If this is raised by INZ, seek legal advice before responding.
  • Critical Purpose Visitor Visa holders will only be eligible to secure residence if they gained entry as an “Other Critical Worker” or a “Critical Healthcare Worker” and they continue to hold this visa, or they have transferred to one of the “eligible” visas listed in policy post arrival. An important point to note is that critical workers who have since transferred onto Specific Purpose Work Visas (as an example of a non-eligible visa) will not be eligible for residence.  There are a number of potential options that may be available to such applicants, including an appeal to the IPT and/or a request for a Special Direction to the Minister, so please get in touch if this applies to you.
  • Finally, some good news for many families; INZ will grant residence to applicants who may have medical conditions, providing they do not have one of the listed, very serious conditions that make an applicant ineligible for a medical waiver under the current Residence Instructions. Such conditions include severe haemophilia, a condition that requires them to have full-time care or a condition that requires dialysis.  Apart from that, medical waivers will be issued for a range of conditions that typically would encounter eligibility issues.  This will be welcome relief for families who have, for example, children with mild to moderate intellectual disability or other conditions typically preventing the grant of a visa.

In summary, while the 21 RV offers an easy pathway to residence for the very straightforward cases, potential ‘fishhooks’ in the policy are likely to trip up applicants without a ‘clear cut’ pathway under the Category as well as those who are self-represented who do not know what they are doing.

We envisage a fair amount of resistance on these applications, particularly those claiming a role that is scarce or skilled (with remuneration issues).

The golden rule here is get good advice before making your application.  However, failing that, if you apply and encounter resistance, seek legal advice to assist to challenge the view or if it is not able to be challenged due to a technicality, it may not be the end of the road.  There are appeal options to the IPT and the Minister can sign off individual cases, particularly so where the application is able to demonstrate special circumstances and the grant of residency would be consistent with the objective of this policy.

As a final practical bit of advice, for those wanting to file on 1 December or who expect to be able to do so easily, we have doubts.  We think the system will either crash or be inconsistent in the first few days as literally every Phase 1 applicant tries to apply immediately.  There is nothing to be gained by applying on the first day as compared to three weeks past that in our view.  There is plenty of time to apply and INZ are not going to change their mind on this.  In addition, we actually think for more complex cases you do not want to be the initial test case, better to file a bit later once all the processing interpretation issues have been resolved.

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