The blog of Rupert Ward, Barrister
Welcome to the blog of Rupert Ward. Rupert’s Areas of practice include Civil litigation, Employment, Mental health, Relationship Property, Criminal and Immigration. Rupert regularly appears or presents to the District and High courts and in Tribunals. Rupert has a broad area of practice due to his varied base of practical experience in a number of New Zealand and international fields over a career of over 25 years.
Changes to immigration regulations and visa criteria
(Correct as at 09 October 2023)
This is a shortened summary of some of the changes to the immigration regulations. It is meant as a helpful guide and is not meant to be exhaustive or complete. Many other visas not listed here have also undergone minor criteria and regulation changes as well. If you are not sure how your personal situation meets current visa criteria, please contact me.
As a part of the government’s Immigration Rebalance plan which was introduced in 2022, changes continue to be made in the immigration space.
Traditionally, the Skilled Migrant Category Resident Visa (SMC) has been the most common pathway to obtain residency for migrants. In the past year, this visa has undergone a period of consultation, followed by a complete revision of the points-based system.
From 9 October 2023, to be eligible for the SMC you must have an acceptable job or job offer in New Zealand and 6 points (as opposed to 180 points in the previous system). Points are awarded for qualifications; professional registrations; meeting wage thresholds; and skilled work experience gained in New Zealand.
The Accredited Employer Work Visa (AEWV) has been in place for approximately a year now, and small changes have recently been made, including the removal of a 90 day trial period that was previously a requirement of employment for some employers.
The Green List, which is a list of skilled and in demand occupations, continues to have occupations added to it, providing further opportunities for migrants. The Green List is relevant to two visas which offer fast-tracked pathways to residency.
There are new residency pathways for Care Workers, and specific occupations in the transport, construction and infrastructure sectors.
A welcome change has been made to Parent Category visas. Previously only a single adult child or joint adult child and their partner could be considered to meet Parent Category sponsor income requirements. A change has been made to allow the income of two adult children to be considered to meet Parent Category sponsor income requirements.
Many visas have wage thresholds or criteria that are based on the median wage. The median wage is reviewed and adjusted annually. The new median of NZD$31.61 an hour will be adopted into the immigration system in February 2024.
Many visas have occupation criteria which involve the applicant requiring to have a specific qualification. Applicants who have an overseas qualification may need to have their qualification assessed, in order to establish their worth in relation to New Zealand qualifications and be formally recognised. The list of qualifications that do not require to be assessed, as undergone significant changes.
New Zealand’s Immigration Rebalance Plan
(correct as of 21 December 2022)
The New Zealand government announced in 2022 they are rebalancing the immigration system to support its plan for a higher-productivity, higher-wage economy, as it moves to fully reconnect with the world following Covid-19 restrictions.
The Immigration Rebalance Plan has been designed to make it easier to attract and hire high-skilled migrants, while supporting some sectors to transition to more productive and resilient ways of operating, instead of relying on lower-skilled migrant workers. It will make it easier to fill genuine skills gaps, where New Zealanders can’t be found. For highly skilled workers in a global shortage, it will ensure New Zealand is an attractive destination, with fast tracked pathways to residence and simplified application processes.
There have been a number of changes in 2022. The Accredited Employer Work Visa replaces 6 work visas, and may possibly be the most commonly held work type visa in the future.
The Accredited Employer Work Visa offers: more certainty about the job you’re applying for; confidence the employer meets New Zealand’s employment laws and standards; a more streamlined and transparent visa application process; and increased certainty earlier in the visa application process.
The Skilled Migrant Category Resident Visa, a common route to gain residency to New Zealand and previously suspended for some time while New Zealand borders were shut, is open for applications again. The points-based system is designed to prioritise those applicants who: have skills in demand; have skilled employment; or offers of skilled employment in New Zealand. Points required increased from 160 to 180 in November 2022. Notice has been given that settings for the Skilled Migrant Category Resident Visa will likely change in 2023.
There are new residency pathways to address critical shortage in highly skilled or high in demand occupations. Three new visas have been introduced, the Straight to Residence Visa, Work to Residence Visa and Highly Paid Residence Visa. To be eligible for these visas (in addition to further visa criteria), you must be employed in an occupation listed on the “Green List” or be in a highly paid job.
This is a time of change in immigration in New Zealand. Many other visas not listed here have undergone minor criteria and regulation changes as well. We can expect further future changes as a result the Immigration Rebalance Plan.
Facing deportation? What are your options?
-
Grounds for deportation
If your visa has expired, you have to leave New Zealand. If you do not leave voluntarily, you are here unlawfully and are liable for deportation. If you currently hold a visa and are in New Zealand legally, you can only be deported on the grounds stated in the Immigration Act (The ‘Immigration Act 2009‘ is the fundamental source of New Zealand immigration law). This includes reasons such as breaching visa conditions, withholding information, false identity, being convicted of a criminal offence or other character-related issues, change in your situation or being granted a visa by mistake. -
Deportation Liability Notice
If your visa has expired and you do not hold a valid New Zealand visa, you are liable for deportation and Immigration New Zealand doesn’t have to give you any notice that now you may be deported.If you are a visa holder and Immigration New Zealand wants to deport you, they have to start the process by giving you a “deportation liability notice”.The deportation liability notice will give you important information about your case, including:
- why you’re being deported
- what appeal rights you have
- whether you’ll be barred from returning to New Zealand after you’re deported, and for how long
- whether you’ll have to repay the New Zealand government the costs of deporting you.
-
Your options, Instructing a deportation lawyer
In some cases, you will have two weeks (14 days) after you get a deportation liability notice to challenge your deportation by giving Immigration New Zealand a good reason why you shouldn’t be deported.You’ll also usually have the right to challenge your deportation by appealing to the Immigration and Protection Tribunal. How much time you have to appeal your deportation to the Immigration and Protection Tribunal will depend on why you’re being deported.
Appeals to the Tribunal are made either on the grounds that Immigration NZ are wrong that they’re legally justified in deporting you (called appealing “on the facts”) or on the grounds that there are exceptional humanitarian circumstances in your case. The ‘humanitarian grounds test’ is a very difficult test to overcome as you will need to satisfy the Tribunal that all of the following is true:
- there are exceptional humanitarian circumstances in your case, and
- those circumstances would make it “unjust or unduly harsh” for you to be deported, and
- letting you stay wouldn’t be against the public interest.
It is really important to contact an immigration lawyer and seek good legal advice as soon as possible as your immigration lawyer will be able to discuss all your options and time-frames with you. It takes a lot of time to prepare your appeal, submissions and evidence.
Immigration – Foreign Investment visa influx
New Zealand has begun to focus on reopening its borders for overseas investors. According to Stuff.co.nz, “Immigration New Zealand has now approved visas for 32 people who agreed to invest $10 million each in New Zealand, and a further 76 who agreed to invest at least $3 million”*. This surge of visas is in an attempt to aid in the economic rebuild of New Zealand by circulating more money into the economy.
“Immigration NZ has a dedicated unit promoting the country to wealthy foreigners willing to invest when they could get into New Zealand.”* And this unit has allowed for Immigration New Zealand to begin making decisions again. According to Nicola Hogg – Immigration New Zealand general manager – “…decisions were once again being made on whether to allow in wealthy investors.”*
COVID-19 – The New Zealand Governments timely response
COVID-19 has impacted the world on a grand scale, with the suspension of travel across the globe. New Zealand’s response to the Pandemic was a well-thought-out process, as a result of swift responses. According to an Article from Newshub “New Zealand was the only country in the OECD to have fewer deaths than expected in pandemic-hit 2020.”* As of 22nd December 2021 there have been a total of 49 people who have passed away due to COVID-19.**
Additionally, as of 16th December 2021, according to the New Zealand Herald “New Zealand has officially cracked the 90 per cent full vaccination milestone, officials have confirmed.”*** This 90 per cent vaccination target was in light of the eligible population of who could be vaccinated which applied to all New Zealanders over the age of 12.
New Zealand’s COVID-19 response was initially designed around a 4 level alert system with each level being dependant on the community transmission of a particular region. This framework was subsequently changed to the traffic light system which is “designed to help us prevent and manage outbreaks and cases.”**** . This new framework allows for more certainty in the business sector of New Zealand, as businesses are allowed to “open and operate with greater flexibility while minimising the virus’ spread.”*****.
***** <https://www.business.govt.nz/covid-19/covid-19-protection-framework/.>
Government announces new one-off resident visa
On 30 September 2021, the Government announced a one-off resident visa. The 2021 Resident Visa is intended to be a ‘simplified pathway to residence for around 165,000 migrants currently in New Zealand’. It will be available to most onshore (in New Zealand) work visa holders and their immediate family members.
According to the minister of immigration, the key points for this new resident visa are:
- One-off resident visa for up to 165,000 migrants provides certainty for New Zealand businesses so they can plan into the future
- Visa creates residence pathway for over 5,000 health and aged care workers, around 9,000 primary industry workers, and more than 800 teachers
- Streamlined application process requiring health, police and security criteria to be met
- Majority of applications to be granted within a year of the category opening
The full policy has not been released yet, therefore some details are still missing and some details are subject to change. Immigration New Zealand has indicated that more information will be available in late October 2021.
We’ve added a page to this website where we will keep you up to date with any new developments on this new residency visa:
Employment Law – When is a Dismissal Justified?
When the working relationship between an employer and an employee breaks down, the outcome can often be that an employee is fired. Regardless of which side of the dismissal you’re on, this is likely to be a stressful and unpleasant experience. While there is no doubt that this is a difficult time for both employees and employers, it is important that dismissals are handled correctly to prevent ongoing problems. Read More »
The division of relationship property
Relationships these days can take many different forms: marriage and civil partnerships (either for the first time or later unions), co-habiting partners, casual partners, long distance relationships, relationships based on companionship, relationships split between each other’s homes and so on. These are just some of the types of relationship which people can experience. Further, more and more commonly people are entering into relationships later in life when they have built up their own assets.
Character waivers – The importance of strong and persuasive submissions to Immigration New Zealand
When applying for a work or residency visa an applicant has to be of good character. In some instances it may be necessary for an applicant to obtain a character waiver.
A character waiver is essentially when Immigration need to consider whether an action you have done in the past (for many applicants this is a crime regarded as reasonably minor – such as a DUI) can be excused (to enable you to obtain the type of immigration status you have applied for).
Rupert Ward Immigration and Criminal barrister explains how drinking and driving (DUIs) can harm your Immigration status
Can I be deported for a DUI offence?
I am an Immigration and Criminal barrister so I see the impact of DUIs and Immigration frequently.
Have you got a work visa or are you a fairly new resident? New Zealand takes a strict approach to drinking alcohol and driving (a DUI). Immigration also takes this very seriously – If you have been convicted of driving under the influence this can greatly impact on your Immigration status.
Relationships and Immigration – A view from Rupert Ward, Immigration Barrister
Relationships and Immigration – A view from Rupert Ward, Immigration Barrister
Recently my office has seen a large volume of people involved in relationships with New Zealand citizens or residents being denied visas. One of the hurdles applicants face is that Immigration must be convinced that a relationship is genuine and stable.
I see many people who have failed in their applications for a partner work visa (or for residency based on partnership) because they have not considered properly the amount of evidence they need to prove a relationship is genuine and stable. A marriage certificate is simply not enough! Immigration does helpfully provide a list of items which might be supplied and this requirement should not be taken lightly.
Immigration changes bring important changes and will open doors for some applicants – South Island Contribution Visa and Skilled Migrant route to residency – Rupert Ward – Immigration Barrister
Immigration changes bring important changes and will open doors for some applicants – South Island Contribution Visa and Skilled Migrant route to residency
Very recently Immigration have announced new changes to Skilled Migrant residency rules.
They bring exciting new opportunities for residency for those people who have been committed to the South Island – such as those helping with the Christchurch rebuild. You can read more about this new visa here. The changes will also change the points available to a number of Skilled Migrants.
South Island Visa may help those with Christchurch rebuild and beyond – South Island Contribution Visa – Rupert Ward – Immigration Barrister
South Island Visa may help those with Christchurch rebuild and beyond – South Island Contribution Visa
Very recently Immigration have announced new changes to residency rules.
The South Island Contribution Visa brings exciting new opportunities for residency for those people who have been committed to the South Island – such as those helping with the Christchurch rebuild.
Section 61 – What can you do if you are unlawfully in New Zealand? What if there is no visa for me? – Rupert Ward – Immigration Barrister
Section 61 – What can you do if you are unlawfully in New Zealand? What if there is no visa for me?
Sometimes a person can find that they are unlawfully in New Zealand. Immigration can deport people unlawfully in the country and this can have an important effect on future visas (not just in New Zealand but elsewhere for other countries as well). Therefore, in many situations it will be best to leave and return, if possible, on a new appropriate visa. However, in some circumstances as section 61 visa may be obtained.
Government to subsidise interlock devices
I have just had a successful application by a client who wanted to apply for an interlock following a drink driving offence which usually would result in a driving ban.
My client had over three drink driving offences and normally would have usually been subject to having his vehicle confiscated. However, he was able to keep his vehicle as he was able to show the court that the confiscation would cause him extreme hardship as he needed a vehicle to run his business.
Brexit – Making a move to New Zealand?
Brexit: The UK has voted in favour of exiting the EU . It is a shock to many and one does wonder if those voting to leave understood the stability that the EU has progressively brought to Europe since the mid 20th century … This will have many implications for the UK’s economy, immigration and its place in the world.
My office has already had queries from people from Britain who are disgruntled and disappointed and feel that the decision to leave will bring austerity. They are already starting to make queries to my office about the possibility of emigrating to New Zealand.
A “work” licence
I frequently deal with people who have been disqualified from driving and need a limited licence – these are often called work licences as many people use them for work purposes. I see a lot of applications from those working in the building trades as they often need to transport tools and cannot work without a vehicle. However, such a licence is not limited to work. The test is whether not having a licence will cause you extreme hardship or another person undue hardship. Mainly, the focus on an application will be on the hardship the driver will suffer but I have made applications on many different scenarios – For example, taking a family member regularly to hospital appointments or taking them to educational activities or school. Take advice form a limited licence lawyer if you are struggling due to lack of a driver’s licence if suspended.
The importance of a written employment agreement
A frequent problem I see when dealing with personal grievances is the lack of a written employment agreement.
Under s 65(1)(a) of the ERA 2000 an individual employment agreement must be in writing. If an employer has failed to provide a written employment agreement, the court may resolve any disputed claim under an employment agreement in favour of the employee. Claims for a personal grievance alleging breach of an unwritten employment agreement are often made with an application for penalty for breach of the statute. In Park v Brand Works Ltd the employer was ordered to pay a penalty of $2,500 (payable entirely to the employee) for failing to provide a written employment agreement. The maximum fine is $10,000.
Losing your driver’s licence
Many of the applications I make in the criminal courts relate to DIC and the need for a limited licence. These can be simple but often an issue will arise which is a bit different to the ordinary course of events.
In a recent case a client of mine unfortunately did not take legal advice and decided to use a petrol motor powered push bike to get to work while he was suspended from driving.
Check it and check it again – make sure your forms are correct
When completing any immigration visa form it is very easy to skim over some of the basic questions. For example, the questions such as whether you have been removed from a country before or whether you have ever had a visa refused. However, many people do not know that answering these questions correctly is vitally important.