LawCast: Recent Episodes
D&S Law
A monthly podcast by D&S Law dealing with issues of immigration, surrogacy, refugee, and human rights law in New Zealand.
Effective 11 April 2024, Immigration New Zealand, introduced a standdown system for employers who have committed certain immigration offences, including recently introduced immigration infringement offences. This article summaries the key issues employers need to be aware of.
Infringement Offences
MBIE officials can levy an infringement fee (effectively, a fine) at an employer for one of the following designated infringement offences:
i. allowing a person who is not entitled under the Immigration Act 2009 to work in the employer’s service to do that work.
ii. employing a person in a manner that is inconsistent with a work-related condition of that person’s visa.
iii. failing to comply with a requirement to produce wages and time record, or leave record kept in accordance with the provisions of any Act; or any other document relating to the remuneration or employment conditions of a supported employee (for example, an employment agreement) within the time period required.
Infringement Fee
Where the employer is an individual, the maximum infringement fee for offences (i) and (ii) above, may not exceed $1,000 for each employee in respect of whom an employment infringement offence is being, or has been, committed. That fee rises to $3,000 when the employer is a body corporate or another entity. The maximum infringement fee for offence (iii) above, is of $1,000.
Payment of Infringement Fee
If an employer is served with an infringement notice, they need to consider their position carefully. One option is to simply pay the prescribed fee within the timeframes, which will result in no further enforcement action being taken by MBIE.
It is, however, important to note the difference between enforcement action by MBIE officials and actions that can be taken by immigration officers in respect of an employer’s accreditation. In that, while the payment of the infringement fee will result in no further enforcement action, INZ could still suspend or revoke an employer’s accreditation, impacting on their ability to hire migrants on AEWVs. The employer will also be placed on the published standdown list (see below).
Disputing Infringement Offence
Alternatively, an employer could write to MBIE within specified timeframes to:
a) ask MBIE to consider any matter relating to the circumstances of the alleged offence; or
b) deny liability for the alleged offence and request a court hearing; or
c) admit liability for the alleged offence, but have a court consider written submissions as to penalty or otherwise.
If the employer denies liability but the court finds the employer guilty of the offence, the court is entitled to take into account any maximum fine for the offence, and not just the infringement fee. Also, if the court finds the employer guilty of the offence, costs will be imposed in addition to any penalty.
The maximum fine that can be imposed by the court in relation to an employment infringement offence listed at (i) or (ii) above is double the amount of the infringement fee. If it relates to an offence listed at (iii) above, the maximum court penalty is $2,000.
Admit Liability, but….
Instead, an employer can admit liability for the alleged offence, but ask the court to consider submissions as to penalty or other circumstances. Thereafter, the court will decide on the penalty to be imposed, as above.
Standdown List
When an infringement notice is enforced, either by accepting liability by paying the fee or by court order, employers will automatically be placed on a standdown list maintained by MBIE and accessible by immigration officers when determining visa application linked to the employer.
An employer will have a 6-month standdown for a single infringement notice. Each subsequent infringement notice incurs a further standdown of 6 months. The maximum standdown for multiple infringement notices issued at one time is 12 months. There are some variations to this depending on the offence so please do not take this as exhaustive.
The standdown list is published by MBIE and includes the names of employers who have been convicted of an offence against the Immigration Act 2009 (the Act) or issued infringement notices under the Act and details related to the infringement.
Conclusion
The new infringement regime and standdown list have serious consequences for employers, not only in the fees payable but the ramifications for being unable to hire migrants and the potential for reputational damage.
D&S Law is well-placed to advise and act for employers on all matters related to infringement offences. We are also available to assist employers auditing their systems and processes to minimise the potential for an infringement notice being served in the future. Please contact us if you wish to discuss.
On 07 April 2024, the government introduced the following changes to immigration instructions related to employer accreditation, job check requirements and AEWVs:
· Employers must notify Immigration New Zealand (INZ) within 10 working days if an AEWV holder’s employment ends.
· INZ’s ability to suspend accreditation has been expanded to include where there is evidence of potential non-compliance with any of the accreditation requirements.
· AEWVs will be subject to the condition that a visa holder must be employed full time, allowing INZ to revoke an employer’s accreditation if they do not provide at least 30 hours work per week to those on an AEWV.
· Employers must take reasonable steps to ensure that migrant workers are suitably qualified and meet a minimum skills and experience threshold before supporting them to apply for an AEWV and retain evidence of doing so.
· Employers seeking to fill ANZSCO level 4 and 5 occupations must engage with Work and Income as part of the job check requirement.
· A definition of suitable and available New Zealand workers has been introduced and employers who wish to hire a migrant for an ANZSCO level 4 or 5 role are required to provide reasons why New Zealand applicants were not suitable and/or available.
· The advertising duration for ANZSCO level 4 and 5 roles has been increased to 21 calendar days.
· A minimum skills and experience threshold of three years’ relevant work experience, or a relevant qualification at level 4 (or above) on the New Zealand Qualifications and Credential Framework has been introduced for all AEWV applicants. This does not apply to roles paid at least twice the median wage and roles on the Green List.
· Applicants for ANZSCO level 4 and 5 roles are required to meet a minimum standard of English language competence equivalent to level 4 or higher in the International English Language Testing System.
· The duration of AEWVs will now be determined by date of application and skill level of the role held. If the AEWV application was made between June 2023 and 06 April 2024, the applicant will obtain a 5 year work visa regardless of skill level. Any application thereafter, for skill level 4 or 5 will receive a visa with a maximum duration of 3 years (all other will still receive 5 years).
· Accreditation for franchise employers is to be disestablished and such employers can apply for standard, high volume or triangular accreditation as required.
The rules related to AEWVs, job checks, and accreditation remain complex and evolving. Please contact one of our team if you have any questions.
Come join Stewart Dalley from D&S Law at the Growing Families Donor/Surrogacy Seminar - Auckland on Saturday 16 March 2024.
This community-run annual event brings together parents, intended parents, surrogates, egg donors and professionals such as lawyers, counsellors, IVF specialists and surrogacy agency staff to network, educate and support your goal of building family. Growing Families has been running this event for 10 years in Auckland.
Growing Families seminars are curated to provide the most up-to date information for those starting or on a family building surrogacy/donor journey.
The interactive format provides advice, introductions and answers to questions, no matter where you are in your journey. It will cover the steps on how to first engage with professional service providers to taking your baby home.
Find out more here: https://www.growingfamilies.org/new-zealand/
Purchase tickets: https://events.humanitix.com/donor-and-surrogacy-pathways-for-new-zealanders
We would love you to join us for Big Gay Out 2024 on Sunday 18 February at Coyle Park, Pt Chevalier. We have a tent there with some fun face painting and a massive unicorn. You’ll not miss us! Best of all, this is a free event!
Event details:
Big Gay Out 2024
When: Sunday, 18 February 2024, 12pm – 7pm
Where: Coyle Park, Pt Chevalier, Auckland
For more information please visit: https://biggayout.co.nz/
From the 27 November 2023, the following changes will take effect:
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The introduction of a 5 year ‘maximum continuous stay’ for most AEWV holders.
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Increases of the maximum length of the AEWV to five years for those earning at least the median wage and 3 years for those in the care workforce sector.
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Current eligible AEWV holders will have an option to apply for the balance of the longer five-year or three-year visa; their current visas will not extend automatically.
Both employers and workers will need to meet criteria to apply for the balance of the longer visa.
As Immigration New Zealand is predicting a large number of balance applications, it will prioritise the processing of those where the applicant’s current AEWV will expire within the next nine months.
If you have any questions, please contact one of the team at D&S Law and we will be happy to help.
In part of measures being but in place to protection migrants from exploitation through the AEWV scheme, from the 29 October 2023, accredited employers cannot use 90-day trial periods in employment agreements when hiring people on an Accredited Employer Work Visa (AEWV).
This change is also applicable for Job Checks submitted before the 29 October 2023 that are assessed on and after this date.
If you have any question, please contact one of the team at D&S Law and we will be happy to help.
Immigration New Zealand and others are currently investigating alleged migrant exploitation of people on temporary work visas. If you are impacted by exploitations as a migrant, please contact us for help.
In terms of the current investigation. there is a multi-agency approach underway to support the victims and investigate this situation, including Immigration New Zealand, Ministry of Social Development, NZ Police, Ministry for Ethnic Communities, and Victim Support. They have also collectively engaged with a number of community contacts on how they can support the individuals involved, especially as the situation is dynamic and evolving.
The below information has been provided by Immigration New Zealand:
· All workers on temporary visas have the same employment rights as all New Zealand workers.
· Reporting migrant exploitation
o An individual can report migrant exploitation to Employment New Zealand using their online form: https://reportmigrantexploitation.employment.govt.nz
o An individual can also call 0800 200 088 to report exploitation, and interpreters are available in over 180 languages. This is free to call from any landline or cell phone in New Zealand.
o An individual can also report migrant exploitation anonymously by using a web form on the Employment New Zealand website to report issues - www.employment.govt.nz/migrantexploitation. They can tell us if they want to report anonymously, and do not provide their contact details.
· Visa options
o The Migrant Exploitation Protection Visa (MEPV) is free, and allows you to stay in New Zealand for up to six months. If you have reported exploitation while on an employer supported work visa, apply for this visa to leave your job while the exploitation is being investigated. We treat these applications as high priority. It allows you to leave your current employer quickly while we investigate the exploitation. You can work on this visa, with any employer anywhere in New Zealand.
o TheDismissed Worker Visitor Visa allows you to stay in New Zealand for three months if you were dismissed during your work trial period. You can’t work on this visa but you can use the time to find another job and apply for a work visa if you do.
o A Job Changeallows you to change conditions of your work visa such as the employer that your visa is tied to, so you can work for a new employer. It does not make your visa longer.Your current employer does not have to give permission for you to leave. Please note in some situations you may need to apply for a new AEWV.
· Accommodation
o We will be providing the individuals with temporary accommodation and a basic allowance for a short period. This is an interim package of support the group of identified migrants at these houses.
o The details of the package includes:
§ accommodation in a motel (paid directly to the accommodation provider)
§ approximately $220 per person, per week of living cost support payments.
o We have secured accommodation and we are reaching out to those impacted directly to offer them this accommodation.
· Contacting Immigration New Zealand
o They can call us from 06:00 to 22:00 Monday to Friday (NZT) excluding New Zealand public holidays.
o When calling about their visa application, we will need either their INZ client, application or passport number if their call is about a visa application.
If they do not speak English, we can provide information in your language. Call us and when they connect with an operator, say the name of the language you speak. They need to stay on the line and we will get an interpreter to join the call. They should not hang up while they are being connected.
MBIE Contact Centre:
0508 558 855
Auckland:
+64 9 914 4100
Wellington:
+64 4 910 9915
Rest of the world:
+64 9 914 4100
After two years of consulatation and consideration, Immigration New Zealand have released the future of the Skilled Migrant Category for residence in New Zealand.
The points system still remains, however, it has been greatly simplified. There are now only two major category in which points can be claimed, and only 6 points are needed to qualify to make a residence applications.
CATEGORY ONE - Skills
If you have registration in New Zealand for your work e.g. teacher, lawyer, chartered accountant then you can claim the following points
3 years training = 3 points
4 years training = 4 points
5 years training = 5 points
6 years training = 6 points
OR
If you have a tertiary qualification, you can claim the following points
Level 7 Bachelor’s degree - 3 points
Level 8 - 4 points
Level 9 - 5 points
Level 10 - 6 points
OR
If you earn a high wage, you can claim the following points
1.5 x the median wage - 3 points
3 x the median wage - 6 points
You can only claim points from one of these three skillsets.
In addition to this, you can also claim additional points for any skilled work experience you may have in New Zealand.
CATEGORY TWO - Skilled New Zealand work experience
1 year - 1 point
2 years - 2 points
3 years - 3 points
TOTAL NUMBER OF POINTS REQUIRED = 6
Of course, the standard health, character and English language requirements apply
Feel free to get in touch if you have any questions!
Come join Stewart Dalley from D&S Law at the Growing Families Donor/Surrogacy Seminar - Auckland 10 June 2023.
A half day seminar featuring panels of experts, parents, surrogates and older children via surrogacy.
Growing Families seminars are curated to provide the most up-to date information for those starting or on a family building surrogacy / donor journey.
The interactive format provides advice, introductions and answers to questions, no matter where you are in your journey. We cover steps on how to first engagement with professional service providers to taking your baby home.
Find out more here: https://www.growingfamilies.org/new-zealand/
Purchase tickets: https://www.eventbrite.com.au/e/new-zealand-surrogacy-egg-donor-seminar-tickets-588697007597
We would love you to join us for Big Gay Out 2023 on 12 March at Coyle Park, Pt Chevalier. We have a tent there with some fun face painting and a massive unicorn. You’ll not miss us!
Event details:
Big Gay Out 2023
When: 12 March 2023, 12pm – 7pm
Where: Coyle Park, Pt Chevalier, Auckland
For more information please visit:https://biggayout.co.nz/
Immigration New Zealand has announced the 2023 reopening dates for capped Working Holiday Schemes.
Once each scheme opens, applications will remain open until the quota is filled. Once filled, the scheme will close until 2024.
The table below shows the date each scheme will open, as well as the number of places available in each scheme for 2023.
Some are very limited so it will pay to get your application in early. The team at D&S Law standby to assist you with your application.
Note: Work is underway to implement changes to the Spain and Vietnam schemes. Opening dates for these schemes will be made available once they are confirmed.
The Human Assisted Reproduction Technologies – or HART – registry reached a significant milestone with notification of the 3000th birth of a donor-conceived child.
The register of donors is a register of donors only where a child has been born. It is not a publicly available register or a list of donors available for donation.
The purpose of the register is to help people who are donor-conceived connect with their donors, and for donors of sperm, eggs, or embryos, to get information about genetic offspring.
There are now also 1,300 egg donors and 1,800 sperm donors recorded. The registry is managed by the Births, Deaths and Marriages (BDM) team at Te Tari Taiwhenua Department of Internal Affairs.
Since 2005 fertility clinics have been required to register information with BDM after a child is born following the donation of sperm, egg or embryos at the clinic. Information is recorded about the child, their parents and the sperm or egg donor.
Those donor-conceived prior to 2005 as well as sperm and egg donors who donated to a fertility clinic prior to 2005 can also voluntarily register their information with the clinic they used or by contacting BDM on 0800 22 52 52, or bdm.nz@dia.govt.nz.
Numbers on the voluntary register are much lower than the mandatory register, with currently 29 donor-conceived people and 28 donors registered.
Following lobbying by D&S Law and others, BDM will now be releasing annual statistics on registrations to help raise awareness of the register. See here for the latest statistics: https://www.dia.govt.nz/hart-register-statistics
It is important for those on the register to keep their contact information up to date if the register is to achieve its objectives.
Donor-conceived people can access information from the Fertility Clinic or the Registrar-General when they turn 18. Their parents/guardians can access the information before that time on their behalf. Alternatively, they can seek out a Family Court to approve access to their information if they are underage.
New Zealand borders are reopening. This article explains what is means for migrants and New Zealanders.
After years of campaigning by the NZ Aids Foundation and Body Positive, amongst others, Immigration New Zealand has now removed HIV form its list of high-cost health conditions. This means that people applying for visas who have HIV will not automatically be considered to pose a high cost to New Zealand., and require a medical waiver to be granted a visa. Now, a more individualised assessment of a person’s health will be required.
The INZ release provides: “The cost of HIV (human immunodeficiency virus) treatment is no longer considered significant by Immigration New Zealand (INZ) and the Ministry of Health.
INZ has therefore removed HIV infection from the list of high-cost health conditions used to assess resident visa applications.
INZ will still consider the medical circumstances of applicants with HIV but will not automatically determine that an applicant with HIV does not have an acceptable standard of health, which could lead to the decline of a visa application.
PHARMAC, National HIV and AIDS Forum, UNAIDS and New Zealand AIDS Foundation supported the proposal to update the list.”
D&S Law salutes all those who have campaigned on this issue over the years.
Today D&S LAW filed High Court proceedings seeking judicial review of two recent decisions made by the Minister of Immigration on behalf of Professor Michael Witbrock.
The first decision is dated 23 June 2021 related to the continued suspension of the processing of offshore visa applications until 06 February 2022. The second, dated 07 July 2021, is the Minister’s decision to issue instructions to Immigration New Zealand to lapse or return, and refund offshore visas including applications made by partners of New Zealanders and migrants.
The grounds for the action are that the Minister failed to properly consider the obligations international conventions, which New Zealand ratified, placed on him when making these decisions as it continues to separate partners and families. The decisions made also result in discrimination on the basis of race, religion, sex and sexual orientation as these social groups are not always permitted to live together with their partners depending on which country they are based. Freedom from such discrimination is protected by the New Zealand Bill of Rights Act 1990.
The applicant is a Professor at University of Auckland in the science faculty. His husband applied for a visa to come to New Zealand to be reunited with the applicant in November 2019. Immigration New Zealand determined the couple are in a genuine and stable relationship, and were prepared to grant a visitor visa, but due to the suspension on issuing such visas he has not yet been granted a visa. A subsequent border exception request was declined by Immigration New Zealand. The couple have not seen each other in person since January 2020. The applicant’s partner is a citizen of China where he currently resides. There is no path provided by China which enables them to live together as a same-sex couple, and it would be significantly more difficult for them to do so than for a heterosexual couple, given the lower recognition of same-sex relationships in China compared with New Zealand.
This case, however, is wider than just the applicant and his husband. Tens of thousands of New Zealand citizen, resident and temporary visa holders have been separated from their offshore partners and children as a result of the suspension on the processing of offshore visas. As a result of the decision to lapse and return visa application, these families will face even greater delays to their reunification once the border reopens.
Contact: Stewart Dalley. Tel: 0212547570. E: stewart@dslaw.nz
Pooja Sundar. Tel: 0291225070. E: pooja@dslaw.nz
Stewart from D&S Law will be presenting on NZ’s legal process for surrogacy both domestically and internationally at the Growing Families Annual New Zealand surrogacy and donor conference, which will be a chance to bring the community together for the first time in 2 years. This is an opportunity for intended parents, parents, egg donors, surrogates, and experts to network, share stories and learn from each other. Learn what the IVF, donor and surrogacy process really looks like. A panel of altruistic surrogates will share about their motivations to carry for another family. NZ parents will join a panel to explore how expectations can differ and how to survive the unexpected hurdles. Attend Auckland Seminar to learn more. Register here: https://www.growingfamilies.org/event/new-zealand-conference/
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Given how well New Zealand has been doing with dealing with the COVID pandemic, we have been receiving a lot of enquiries of possible investors asking about the New Zealand investor category for residence.
There are three business categories for residence in New Zealand;
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Investor One
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Investor Two
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Entrepreneur
As always, we have specialised experience and knowledge in the above categories and are happy to help!
Get in touch!
Investor One
The Investor One category is for those who have $10million NZD or more to invest in New Zealand for a period of three years.
There is no age limit on the visa and thus this is perfect for those who may be over 55 or 65 and age out of the work to residence categories or the Investor Two category.
You can include your family (partner and children) in this visa as long as they can come to New Zealand within 12 months of their visa being granted.
You must spend 44 days in each of the last two years of your three-year investment period in New Zealand, or, 88 days at any time over the three-year investment period if you have invested a minimum of NZ$2.5 million in growth investments.
The biggest challenge for Investor visas, especially Investor One applications is to ensure that Immigration New Zealand (INZ) has clear evidence of the provenance of the funds and that it is the nominated funds (in the residence application) that are invested.
This is a lot of financial and legal work to ensure the application is as smooth as possible. We have years of experience in the immigration field and have contacts in local banks and wealth management firms to ensure that you do not waste your time and that the process is seamless.
Investor Two
Investor Two residence differs in two main ways from the Investor One category. The first is that the applicant must have at least three years of business experience. The second is that the applicant will be awarded a number of points for various factors such as experience, age, funds available, through which, if they meet the threshold, they are able to lodge an Expression of Interest (EOI) to be invited to apply for residence. We go through the requirements for business experience and each of the points categories below.
The category is also limited in terms of age, only those who are 65 or under can make an application.
The Investor Two application is two-fold. First, the applicant is required to lodge an Expression of Interest (EOI) with INZ. If INZ accepted this EOI, an Invitation to Apply for residence will be issued giving the applicant four months in which the application needs to be made.
Once again, the application process requires the financial and legal sides to perfectly align and the contacts that we have made will make this happen and experience smooth and painless for you.
Entrepreneur Visas
New Zealand offers a pathway to residence for those wishing to operate and establish a business in New Zealand. You can include your partner and dependent children in the application. This starts with a 3-year work visa, which includes a 12 month business start-up period that must be completed or the remainder of the visa will expire. The system is points based requiring a minimum of $100,000 NZD capital investment. This may increase depending on the points you are able to claim elsewhere for experience, number of jobs for New Zealanders you plan to create, turnover, age and location of the business. A detailed business plan is also required.
Those who achieve all the claimed points at the end of their 3-year work visa may be eligible to be granted residence. Several people come unstuck at this point if they have not achieved exactly as envisaged at the businesses start-up stage. Careful consideration and guidance are, therefore, required before commencing down the entrepreneur visa pathway. Again, we have the experience and contacts to help you make the right decisions.
As always, we have specialised experience and knowledge in the above categories and are happy to help!
Get in touch!
“So far to go” depicts both the distance Rainbow refugees and asylum seekers have travelled to Aotearoa NZ and the huge gaps in our immigration laws and policies that leave refugees and asylum seekers isolated with inadequate support, sometimes held in detention. Find out more about the changes needed to fully respect the rights of all refugees and asylum seekers in Aotearoa NZ – including additional challenges faced by those who are members of our Rainbow communities.
Come along and here from the expert panel:
- the Green Party’s Refugee Spokesperson, MP Golriz Ghahraman
- Rainbow refugees and asylum seekers
- the Asylum Seekers’ Support Trust
- refugee lawyer Stewart Dalley and
- a member of the Immigration and Protection Tribunal.
Register for free here: https://www.eventbrite.co.nz/e/so-far-to-go-refugees-and-asylum-seekers-rights-tickets-152930464135
In this episode of LawCast, we discuss the new work changes and the Accredited Employer Work Visa and what this means for employers of migrant workers in New Zealand. We discuss the technical changes as well as the practical impact this will have for employers in their day to day lives.
In this episode of LawCast, we discuss the new work changes and the Accredited Employer Work Visa and what this means for migrant employees in New Zealand. We discuss the technical changes as well as the practical impact this will have for migrants in their day to day lives.
In 2020, INZ announced that the work visa structure as we know it will be changing dramatically and that all employers will need to be accredited if they want to hire migrants. We finally have a bit more information on what this will look like and some time frames.
The official name of the new visa is accredited employer work visa (AEWV).
Have questions? We can help! Get in touch
stewart@dslaw.nz
pooja@dslaw.nz
Times
Employers can start applying for accreditation from late September for a 1 November 2021 rollout.
Employers only need to be accredited under the new system when they want to start hiring migrants on AEWVs.
Employers don’t need to be accredited in the new system by 1 November 2021 if they do not plan to start hiring migrants on AEWVs at this time.
This means that any long-term skill shortage visas need to be applied for by 31 October 2021.
New application process
Before hiring a migrant, employers will need to:
- apply for accreditation under the new system
- apply for a job check to make sure the role they want to fill cannot be done by New Zealanders, and
- request a migrant worker to apply for a visa.
The migrant will need to meet the skills and experience stipulated as part of the job check.
Have questions? We can help!
How does this all work?!
The new system has three checks:
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the employer check - apply for accreditation to pass this
- To pass the employer check you need accreditation in the new system. Only accredited employers can hire a migrant worker on the AEWV.
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There are two new accreditation levels
- standard accreditation - for employers wanting to hire up to 5 migrants on AEWVs at any one time; and
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high-volume accreditation - for employers wanting to hire 6 or more migrants on AEWVs at any one time.
- employers will need to ensure all jobs either meet a minimum pay requirement of 10 per cent above the minimum wage, or are covered by a collective agreement.
- Franchisees and employers wanting to place migrants on AEWVs with third parties (including labour-hire companies) will need to meet additional criteria to get accredited. They will only be granted a 12-month accreditation.
- employers will need to ensure all jobs either meet a minimum pay requirement of 10 per cent above the minimum wage, or are covered by a collective agreement.
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Franchisees will need to show that they have been operating for 12 months or more, and have a history of hiring New Zealanders.
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Employers placing migrants with third parties must only place workers with compliant businesses i.e. has an NZBN, is not on the stand-down list and has declared they have no immigration-related issues.
- The employers must also have good systems to monitor employment and safety conditions on site
- They must also have a history of contracting labour for 12 months
- show that at least 15% of their workers being placed with third parties are New Zealanders working at least 30 hours a week.
- the job check
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the role you offer will be checked to ensure that the pay meets the market rate, the terms and conditions are compliant with employment laws, and a labour market test has been completed if need be;
- Jobs paying 200% of the median wage do not need to do the labour market test.
- In cities, jobs that are on a skills shortage list and pay at or above median wage do not need a labour market test.
- the migrant worker check
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the migrant worker must show they can meet INZ’s character, identity and health requirements;
- they must also meet the skills and experience required for the role mentioned in the job check
So what do we have to meet to be accredited?
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Must be a genuinely operating business. They must be registered and hold an NZ business number. Some employers will need to show that they are in a sound financial position. This means the business must be:
- profitable; or
- have positive cash flow; or
- have sufficient capital or external investment or funding; or
- have a plan to ensure the business remains viable and ongoing.
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Must not have a recent history of regulatory non-compliance
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INZ will check:
• the employer and key office holders are not on the Labour Inspectorate stand down list
• the employer and key office holders are compliant with immigration law and requirements and are not subject to a permanent ban following a conviction for immigration-related offences
• key officeholders are not prohibited from acting as a director or have a pattern of immigration offences in other businesses they have been involved in
• the employer is not a phoenix company. * Must take steps to minimise exploitation
- allowing migrant workers time to complete online employment rights modules during paid work hours
- paying all recruitment costs in New Zealand and outside New Zealand, including advertising, agency fees, employer and job check applications etc.
These 6 visas will not exist anymore. They are replaced by the AEWV.
- Essential Skills Work Visa
- Essential Skills Work Visa — approved in principle
- Talent (Accredited Employer) Work Visa
- Long Term Skill Shortage List Work Visa
- Silver Fern Job Search Visa (closed 7 October 2019)
- Silver Fern Practical Experience Visa.
Transition to the new accreditation
The following employer policies are closing to new and renewing applications on 30 June 2021:
- Accredited Employer (Talent – Accredited Employer)
- Labour Hire Accreditation (Essential Skills)
- Approval in Principle (Essential Skills) – this does not include approval in principle for other policies including AIP for foreign crew of fishing vessels.
Temporary visas not affected
The following temporary work visas will not be changed by the new visa system:
- Recognised Seasonal Employer (RSE) Limited Visa
- Working holiday schemes
- Post-study Work Visa
- Fishing Crew Work Visa
- Religious Worker Work Visa
- Specific Purpose Work Visa
- partnership work visas including Partner of a Worker Work Visa, Partner of a New Zealander Work Visa and Partner of a Student Work Visa
- work visas granted for international or humanitarian reasons, such as domestic staff of diplomats, consular and official staff, and for refugee or protection status claimants.
The newest episode of LawCast by D&S Law discusses how residence appeals to the Immigration and Protection Tribunal work in New Zealand. The podcast covers the two grounds of appeal, how to approach them, the rules of admitting further evidence and a lot more.
In our previous instalments we discussed the basics of claiming asylum https://www.dslaw.nz/news/whatisrefugeestatusnz, what you need to prove to be recognised as a refugee https://www.dslaw.nz/news/asylum-claim-nz or protected person in New Zealand https://www.dslaw.nz/news/asylum-protectedpersons, and the actual process you will go through if you claim asylum in New Zealand https://www.dslaw.nz/news/claiming-asylum-in-new-zealand-the-process Here, we explain the possible appeal mechanisms if you are not recognised as a refugee or protected person.
If your asylum claim is rejected or declined by the Refugee Status Unit (RSU) you have the right to make an appeal against that decision to the Immigration and Protection Tribunal (IPT). That must be done within specified timescales which cannot be extended.
We recommend that your first step should be to find a lawyer experienced in asylum matters to assist you with your appeal. If you are unable to pay for a lawyer, you may be able to get legal aid to pay for one. Both Pooja and Stewart are experienced in refugee appeals and are approved legal aid lawyers for asylum matters at the IPT.
The IPT will meet with you and your lawyer where they will ask you questions about your claim. This typically takes a full day, but this varies depending on the case and its complexity, and if there are witnesses or expert evidence.
The IPT works to the same legal tests as the RSU when considering whether to recognise a person as a refugee or protected person.
It typically takes 6 months from making the appeal before a hearing takes place with the IPT (but this can vary), and decisions are usually issued a couple of months later.
If you are recognised as a refugee or protected person by the IPT, you can apply for permanent residence and include your partner and dependent children in that application.
If the IPT declines your appeal, you have the right to make an appeal or to seek a judicial review of that decision at the High Court. These are complex matters and people considering High Court proceedings should take advice from lawyers knowledgeable in this field. D&S Law has that experience, both Pooja and Stewart have appeared in the High Court challenging decisions of the IPT in refugee matters. If you are unable to pay for a lawyer, you may be able to get legal aid to pay for one, including D&S Law.
Given the current border restrictions, not everyone can come into New Zealand. Pooja and Stewart go through all the exceptions to the border restrictions and some tips on what to include in your expression of interest.
In our previous instalments we discussed the basics of claiming asylum - https://www.dslaw.nz/news/whatisrefugeestatusnz - what you need to prove to be recognised as a refugee - https://www.dslaw.nz/news/asylum-claim-nz - or protected person in New Zealand - https://www.dslaw.nz/news/asylum-protectedpersons. Here, we provide a process map that sets out the actual process you will go through if you claim asylum in New Zealand.
Claims for asylum are first considered by the Refugee Status Unit (RSU) [formally known as Refugee Status branch – RSB], which is a unit that sits within Immigration New Zealand. We include below the process map at RSU and if you claim is unsuccessful when you appeal to the Immigration and Protection Tribunal. We, however, recommend that your first step should be to find a lawyer experienced in asylum matters to assist you. If you are unable to pay for a lawyer, you may be able to get legal aid to pay for one. Both Pooja and Stewart are approved legal aid lawyers for asylum matters.
The above process map ends with the decision of the Immigration and Protection Tribunal. However, in most case, the Tribunal will then consider any humanitarian appeal against deportation filed. In certain cases that is not the end, and an appeal and/or judicial review to the High Court may be the appropriate course of action.
If you are recognised as a refugee or protected person by the RSU, you can apply for permanent residence and include your partner and dependent children in that application if you have any.
In our next instalment we will discuss the appeals process if you are not recognised as a refugee in New Zealand.
A brief overview of how deportation works in New Zealand and some potential issues to look out for. We cover when and why deportation liability notices and deportation orders can be issued, how to possibly deal with them and some issues in the system.
Always wanted to meet Stewart and Pooja? Well, come visit our Big Gay Out tent in Auckland on 14 February 2021!
Both Stewart and Pooja are passionate about LGBTIQ+ rights and the community. We are looking forward to engaging with everyone on the topics of immigration, surrogacy, adoption and everything in between!
We also have a fun game for you to take part in and some excellent ‘gram opportunities!
The D&S Law tent is at A11. The details of the event is in the link below.
https://www.biggayout.co.nz/
Unpacking and discussing the definitions needed to be recognised as a refugee in New Zealand, as described in the Refugee Convention
The first installment in a five-part series, this post explains what it means to claim asylum/refugee status in New Zealand.
New border exception for some returning international tertiary students: From 2021, the Government has approved an exception class for 1,000 international tertiary students.
To be eligible, students must be - studying for a bachelor's degree or above, hold or have held a visa to study in 2020, - have studied in New Zealand in 2019 or 2020 toward their current qualification, - be returning to study with their current provider and - need to be in country to complete study.
The living expenses that are required for international students to be granted a visa are now raised to $20,000 (from $15 ,000). Students are also required to show that they can cover isolation costs and the cost of a return ticket in addition to the $20 000.
Partners and dependents of nominated students may be included in applications, in line with current visa requirements.
The exception will allow students to return to New Zealand in stages from April 2021. Priority will be given to those close to finishing their qualifications.
Have questions? Get in touch.
stewart@dslaw.nz
021 254 7570
pooja@dslaw.nz
029 122 5070
From mid-2021, Immigration New Zealand will introduce a new employer-assisted work visa, which will replace 6 current work visas, including two of the most popular: Essential Skills Work Visa and Talent (Accredited Employer) Work Visa. It will also introduce mandatory accreditation for all employers wanting to hire migrant workers.
D&S Law wishes you all a Merry Christmas and Happy New Year. Should you require our assistance, we remain open throughout the holidays (except for public holidays).
It has been a very long year with lots of twists and turns. Covid (Coronavirus) brought with it lots of immigration law changes. We know it can be a bit confusing to keep track of it all, so we're giving you an update today based on the type of visa you hold. We are covering the popular visas types today and addressing questions that we’ve had clients ask us a lot recently.
Changes have been made to immigration instructions to resume the processing of applications from residents and people who can be directly granted permanent residence. This includes visa applications from eligible residents who are applying for:
- variations on the travel conditions on their resident visa
- a permanent resident visa.
Also included are applicants who are eligible to apply for the grant of a permanent resident visa under the following instructions:
- Residence instructions for holders of work visas granted under the Talent (Accredited Employers) work instructions (who meet requirements set out in RW2.1)
- Christchurch Response (2019)
- Global impact visa.
These instructions are effective on and after 3 November 2020.
The current priority list is as below
RESIDENCE VISA APPLICATIONS
- Skilled Migrant Category (SMC) and work to residence visa applications, priority will be given to applications with job offers where registration is required or applications have a higher hourly rate.
- Residence class visa applications under the COVID-19 Support Residence instructions
- Applications for variation of travel conditions for resident visas or further resident visas
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Applications for a permanent resident visa under the following instructions:
- Residence instructions for holders of work visas granted under the Talent (Accredited Employers) work instructions (who meet requirements set out in RW2.1);
- Christchurch response (2019);
- Global impact visa.
TEMPORARY VISA APPLICATOIN
- Visas applications and variation of condition requests for those invited to apply under the COVID-19 Support Restricted Temporary instructions;
- Visa applications for victims of domestic violence
- APEC visas
- Diplomatic visas
- Visas for partners of New Zealand residents and citizens
- Temporary visas for those who are currently in NZ.
GOT QUESTIONS? GET IN TOUCH
Immigration New Zealand is extending the suspension of overseas applications for most temporary visas until 8 February 2021. The suspension will continue to be reviewing every month.
The following offshore temporary entry class visa applications are not affected:
- Relationship-based visas for partners and dependent children of New Zealand citizens and residents.
- Visas for diplomatic, consular and official staff and accompanying dependants.
- Antarctic Traveller Visitor visas and Antarctic Work visas.
- Recognised Seasonal Employer (RSE) Limited visas.
INZ has extended the newcomer skills matching and job search services to skilled migrants who have lost their jobs as a result of Covid-19. The services are now available for those on work to residence visas who have lost a job and need an equivalent role to help maintain their pathway to residence.
Got questions? Get in touch.
The new Immigration Minister has been announced. Hon. Kris Faafoi will be sworn in as the Minister of Immigration, and the Minister of Justice. The Associate Minister of Immigration will be Hon. Phil Twyford.
Minister Faafoi was one of the Associate Ministers of Immigration under Minister Ian Lees-Galloway. He took over the portfolio as Immigration Minister once Minister Lees-Galloway resigned.
Our office is very much looking forward to working with both Ministers in their roles on ministerial requests under the Immigration Act, and in our roles on the ADLS Immigration and Refugee Committee.
Stewart Dalley has been appointed as the Chair of the ADLS - Immigration and Refugee Committee