Elly Fleming, Senior Solicitor at Pitt & Moore NZ shares some tips and traps regarding the New 2021 Resident Visa and discusses the potential red flags in the upcoming application process.
Many migrants will probably be overwhelmed with the amount of content surrounding the One-Off 2021 Resident Visa. They would have also been inundated with various pieces of advice on the most recent webinar that most Lawyers and Licensed Immigration Advisers attended on Friday, 15 October 2021.
This article, however, tackles the topic differently and discusses the potential red flags in the upcoming application process.
While it may appear that the application process is going to be relatively straight forward for most migrant workers, with no age limits or English language requirements, the following traps will remain for many applicants and their family members.
1. Must hold an eligible visa on 29 September 2021 and at the time of application
Primary applicants need to be on an eligible work visa not only on 29th of September 2021 (or have applied for an eligible work visa on or before 29th of September 2021 and it is subsequently granted) but also at the time they submit their residence application.
For instance, if an individual were on an Essential Skills Work Visa (an eligible work visa) on 29th of September 2021 but later lost their job or wanted more flexibility in their employment and changed to a Partner of a Worker Work Visa (non-eligible temporary visa) and they remained on the Partnership based visa, they would no longer be eligible for the 2021 Resident Visa.
If an individual were on an Interim Visa on or before 29th of September 2021, as a result of applying for an eligible work visa, it is critical that their eligible work visa application is approved, otherwise they would lose their opportunity to apply for the new 2021 Resident Visa.
People who are unlawfully in New Zealand are not eligible for the new residence pathway.
Likewise, people who held the following visas on 29th of September 2021 will not be eligible:
- Visitor Visas
- Student Visas
- Working Holiday Work Visas
- Partnership Based Open Work Visas
- Limited Visas – including Recognised Seasonal Employer Limited Visas
- Specific Purpose Work Visas
- Foreign Crew of Fishing Vessels Work Visas
- Short-Term Critical Purpose Visitor Visas
- Entrepreneur Category Work Visas
- Critical Purpose Visitor Visa holders who came under a border exemption process as Deepwater/Deepsea Fishing Crews, Agricultural/Horticultural Mobile Plant Operators, and Shearers.
If individuals are unable to meet the eligible work visa requirement, they will need to consider alternative pathways to residence.
2. Presence in New Zealand requirement
Most eligible work visa holders must have been in New Zealand on 29th of September 2021. Critical Health Workers and Other Critical Workers employed in long term roles (for 6 months or more) may still be eligible to apply for the new Resident Visa if they arrive in New Zealand between 30 September 2021 and 31 July 2022 and apply before 31 July 2022.
Immigration New Zealand has also indicated that primary applicants must be in New Zealand at the time they lodge their residence application. For instance, where an individual met the entry date requirement, but then left New Zealand and is unable to return, they may not be able to apply for the new Resident Visa if they miss the cut-off date of 31 July 2022.
3. Partnership Requirements
Eligible principal applicants can choose to include their partners and/or their dependent children in their residence application, including those currently outside of New Zealand.
Partners and dependent children are essentially applying as secondary applicants under Partnership Category or Dependent Child Category and are reliant on the principal applicant meeting the applicable residence instructions to gain residence.
Immigration New Zealand have advised that under the new Resident Visa, partners will be required to demonstrate that they have been living with the primary applicant for at least 12 months at the time a residence application is lodged. However, this period does not need to be the most recent 12 months while the borders have been closed.
For most individuals, with offshore partners, the difficulty will be to demonstrate how, they have maintained their relationship despite living apart since the borders closed, as well as to show that they have previously lived with their partners for at least 12 months prior to the havoc created by the pandemic.
4. Dependent children: age and dependency requirements
Normally, to be eligible to be included in a residence application children must be 24 years of age or younger at the time the application is lodged. However, Immigration New Zealand indicated that the instructions for the new Resident Visa may be more flexible in this regard since children who have been included in the Skilled Migrant Category and Residence From Work Categories are likely to now be older than 24. This still needs to be confirmed by the new Resident Visa policy instructions.
Residence instructions normally define ‘dependent children’ as single, with no children of their own and reliant on their parents for financial support. Normally, children living with their partner are not considered to be single, even if they’ve been living with their partner for less than a year.
5. Health Requirements
All applicants for residence class visas, with the exception of refugees, must have an acceptable standard of health or be granted a medical waiver. In order to be considered of acceptable standard of health, an applicant needs to demonstrate that they are unlikely to be a danger to public health and are unlikely to impose significant costs or demands on NZ’s health services or special education services (among other criteria).
Examples of conditions which are deemed to impose significant costs and/or demands on NZ’s health or education services include: several severe or chronic neurological disorders, cardiac diseases, some respiratory diseases, severe vison impairments and some severe developmental disorders. We believe that these health requirements will continue to remain for the new resident visa process.
If any person included in the residence application fails to meet the necessary health requirements and these requirements are not waived, the application is going to be declined.
6. Character Requirements
To qualify for a visa in New Zealand, Immigration New Zealand requires all applicants to be of good character. If any person included in the application fails to meet the necessary character requirements and these requirements are not waived, the application is going to be declined. INZ are required to carry out character checks on all applicants aged 17 years and over applying for residence class visas. This can clearly include partners and dependent children.
Previous convictions, pending convictions, visa issues with other countries and previous false/misleading information issues can trigger the need for a character waiver. Character issues do not go away until they have been resolved with Immigration New Zealand at both the temporary visa level and at the resident visa level. One of the most common character waiver triggering convictions is a drunk driving conviction.
Our advice would be to always disclose historic charges (even ones that date back a few decades). Overseas clean slate laws do not apply when individuals apply for a visa in New Zealand. Keeping silent on historic charges could trigger a false/misleading character issue.
Character issues arising from Medicals
Failure to declare previous health conditions can also raise character issues and INZ may consider that an applicant provided false and misleading information in the course of applying for a New Zealand visa.
It is important to note that there are also different character triggering thresholds for temporary and residence visas.
Why getting the right advice is important
The “One-Off” Residence Visa 2021 has been labelled as such due to this being a once in a lifetime opportunity. But what this also means, is that this may be the only chance, many migrants have, to get across the line and this is why, it is important that professional advice is obtained to get an application right from the outset.
With over 160,000 applicants potentially being eligible to apply, what will make an application stand out, is if it is clear, concise and complete.
Disclaimer: It is important to note that we are still waiting for Immigration New Zealand to release the policy instructions for the new 2021 Residence visa. This means everything noted in this article is still subject to change. The information contained in this publication is of a general nature and is not intended as legal advice. It is important that you seek legal advice that is specific to your circumstances.
Elly Fleming has worked exclusively in the area of immigration law since her admission to practice in 2005. She has over 10 years’ Australian immigration industry experience and five years of experience in immigration law in New Zealand. She is extremely responsive, very easy to deal with and passionate about her work.
Known for her dedication and results driven approach, Elly has successfully assisted clients from all over the world to secure different types of visas.
Elly is passionate about untangling the complexities of immigration law for her clients while strategically guiding them to achieve their goals. Elly believes that listening to – and understanding – clients is the most important foundation upon which good immigration advice is built and is the key to helping clients to make either Australia or New Zealand their home.