Residence visas for all – kicking the can down the road
30 September 2021
In (another) shocking change of direction, Immigration New Zealand (INZ) have released high-level details of a new one-off residence visa category, the “2021 Resident Visa” which will see residence visas granted to a huge number of migrants already in New Zealand on work visas and certain migrants coming into the country on border exceptions. In essence, INZ have kicked the Skilled Migrant Category (SMC) eligibility settings down the road as it appears too hard. Instead, they have decided to apply a scatter-gun approach to issue residency to almost everyone working here who has not left the country already.
The new visa category will be a welcome piece of news for many migrants and their employers. Over recent years INZ have been steadily moving the goalposts to raise the bar for migrants who are in lower-paid and/or lower-skilled roles – to enable temporary visas to fill skills gaps, but not residence. These changes have led to significant uncertainty for both migrant workers and their employers as well as frustration for employers who, despite concerted efforts, simply cannot recruit New Zealand citizens and residents and have had to navigate the constantly-changing policy criteria to maintain their migrant worker staff on appropriate visas. With that backdrop, it is surprising to see just how far INZ have gone in this new policy which will see residence visas ‘handed out like lollies’ and appears to be a complete about-turn from their previous direction.
The category will open in two phases from 1 December 2021 and will close on 31 July 2022.
We set out below some high-level points that have been communicated, but, like any new policy there are a lot of unanswered questions at this stage that will become clear once the formal policy is released. More to come from us when that happens, but below is a basic eligibility summary and some initial thoughts.
Temporary Work Visa Holders Already in New Zealand
Work visa holders who were in New Zealand on 29 September 2021 and held an eligible work visa (or had applied for one prior to 29 September 2021 and that visa is subsequently approved) will be eligible to apply if they can meet one of the following criteria:
- They have lived in New Zealand for three or more years; or
- They earn at or above the median wage rate ($27 p/hr) as at 29 September 2021; or
- They work in a role on a ‘scarce list’.
The usual health and character requirements will apply, although in many cases it will not be necessary to provide updated medical or police certificates if these have previously been provided to INZ.
Critical Purpose Visa Holders
Critical purpose visitor visa holders will also be eligible to apply as long as they arrive in New Zealand and apply before 31 July 2022, and provided they meet one of the following criteria:
- They are critical health workers for longer term roles (6 months or longer); or
- They are critical workers for long term roles (more than 6 months).
Short term or seasonal critical purpose visitor visa holders will not be eligible.
The Devil is in the Detail
As with all things INZ, the real devil is in the detail and INZ have not yet released their detailed policy guidance to enable a thorough assessment of eligibility in individual cases. There are likely to be various technical pitfalls in relation to each of the eligibility criteria to be aware of to ensure eligibility and a successful application. INZ have indicated that further policy detail will follow in October.
There will be a number of complexities to consider for migrants who already have an existing pathway to residence or have already made a residence application. These need to be carefully considered on an individual basis. In many cases a careful balancing of anticipated processing timeframes v. application fees will factor in the decision-making. Related to this is the major question, and that is what a transition looks like for INZ reviewing eligibility under this new policy where an alternative visa has been applied for? Does this new category jump the existing queue where there are huge delays for residency assessments under the SMC (and therefore worthwhile moving into), or are they going to the back of the queue unless for example you are eligible for priority processing based on the type of application you are able to submit under the new policy?
The position here is looking at eligibility now, and if there is potential eligibility, not rushing in and filing until a fair bit more is known to allow a fully informed decision to be made.
There will be two phases to the category as follows:
- Phase 1: Applications can be made from 1 December 2021:
- If the applicant has already applied for residence under the Skilled Migrant or Residence from Work (Talent) categories before 29 September 2021; or
- If the applicant has submitted a Skilled Migrant Category Expression of Interest and has included a dependent child in the EOI who is aged 17 years or older on 29 September 2021.
- Phase 2: Applications can be made from 1 March 2022:
- All other eligible applicants.
INZ have indicated the processing timeframe should be 12 months or less in most cases.
It’s very clear that this policy is aimed at recognising contribution to the New Zealand economy either historically or in future (for those few that can gain entry via the border exception route). In our view, this new policy will be a real win for many of the migrants who have invested their time and talents in New Zealand – and correspondingly, for their employers who will now have certainty and stability in their workforce.
The policy goes much further than would have been expected based on previous policy statements of INZ. In particular, we note that even migrants in low-paid and low-skilled roles will be able to access residency, regardless of pay rate or role, if they meet the three-year requirement. The new category will see a significant number of migrants who otherwise would have had no pathway to securing residence (particularly those who were subject to the “12-month offshore stand-down” after three years) now gaining residence under this category.
As with any policy, there will be winners and losers. The real surprise here is that this time around, there will be more winners than losers and that is unusual in an immigration context under the current government. A number of the criteria are set as at 29 September 2021, meaning if certain requirements weren’t met as at that date, there is no opportunity to quickly manipulate the situation to make it fit (e.g. by increasing pay rate now to ensure it is above the required $27 p/hr – that needs to have already been in place as at 29 September). There will be a few migrants who will miss out on this basis. However, our view is that the category is far more all-encompassing than we would have expected at this time. For the lucky ones who can meet the criteria, it’s a huge win.
To find out if you (or your employees) may be eligible under this new residence category get in touch with our team of expert immigration lawyers today.
Complete our basic immigration assessment form to check your eligibility.
Partner, Lane Neave
t +64 3 353 1063
m +64 21 222 2363
Partner, Lane Neave
t +64 3 372 6323
m +64 21 1306 540
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