In our recent article on ‘Reconnecting’ New Zealand to the World we covered the Afghan Nationals case and made a prediction that Immigration New Zealand (INZ) would react in a positive way to that case, by not appealing it and moving to allow greater border entry for resident visa holders who filed their resident visa applications before the border closure regulations came in on 19 March 2020.
It is pleasing to see that INZ have now done just that. With effect from 1 December 2021, all applicants who made applications for residence class visas before 19 March 2020 (but have been prevented from entering the country) are now able to enter the country based on the resident visa they currently hold, or alternatively when they are issued their first resident visa once INZ complete processing of their application.
This is a very positive development for those individuals who hold resident visas who were not able to come into the country prior to border closure and were then subsequently prevented from entering once the border closed on the basis that they had not previously “activated” their visas. It is also positive news for those who have been patiently waiting for INZ to issue resident visas to them on applications that have been either processed up to the point of approval and then “suspended” or backlogged with an INZ assumption that they will get to them once the border is opened for those applicants at some point in the future. For the former, this should now mean that resident visas can be issued without delay. For the latter, expect communication from INZ to confirm that processing is underway again soon.
Over the past 18+ months it has been difficult to positively comment on a course of action in relation to the development, implementation and application of immigration policy by the government, although this is a rare but welcome occasion where we are pleased that the government have decided to honour the Court’s direction and in good faith have adjusted the settings to allow entry of those affected individuals who, in many instances, have been prevented from entering New Zealand unlawfully for at least 18 months.
Unfortunately, the Instruction does not expand entry permission to those individuals who submitted their application for a resident visa after the border measures were put in place on 19 March 2020. This will cause some confusion in the market and we were hoping as a gesture of goodwill that as we move to greater border opening INZ would simply move forward with those applications and allow entry too, based on the fact that the highest contribution that can be made in terms of value to New Zealand are resident visa holders. However, it is clear that the government wish to continue to limit the number of individuals entering New Zealand and with the new cohort entering the country there appears to be insufficient capacity or room in the system to expand the border further at this time.
It is our view therefore that at this time, apart from expanding border entry to these resident class visa holders, the government will hold firm and will most likely only expand border entry to very limited classes of visas or individuals moving into next year while they plan their greater opening mechanism that will take place from 1 May 2022.
For those individuals and employers in New Zealand who believe there will be greater border opening in the first few months of next year, it is our view that this will not be the case. The Minister has commissioned a piece of work (advice) from Immigration New Zealand regarding the staged border opening post 1 May 2022, he has not requested advice in relation to phased or additional border entry options for individuals prior to that date. It is our view that certain visa categories could potentially be waiting until the latter part of 2022 before the border opens up to them. Even when it does, we expect there will be significant visa processing delays as the number of applications in waiting is substantial.
It is therefore timely for a lot of employers to consider whether they can wait for greater border opening from 1 May (or beyond) or perhaps determine whether they should move forward with trying to secure entry for skilled individuals now or early in the New Year, under the current restrictions. In this respect, given the ability to self-isolate rather than enter MIQ in the mid-January/February arrival cohorts, a significant number of New Zealand citizens and residents have now delayed their entry into New Zealand to avoid MIQ, so as a consequence we are noticing that it is becoming far easier now to secure an MIQ space. Ironically, it is now a very good time to apply for border entry if the only reason employers or the individual applicants were not looking to make applications to date was on the frustration or lack of certainty of being able to enter the country due to MIQ issues (i.e. it’s one thing securing the border exception, but not potentially worth it if you can’t come in anyway due to MIQ capacity issues).
In addition, we believe there will be a surge of border entry requests commencing in mid to late January and therefore as these applications are considered in time order and only a limited number of individuals within INZ are able to consider these requests, we believe it may well be worthwhile for some employers to consider filing applications before that surge commences to avoid further delays. We believe there will be a surge in Q1 as that’s when a lot of employers will work out their assumptions on border opening were not correct. We are seeing instances on a daily basis where employers are assuming the border is ‘opening’ in January (for Australia) and February (rest of the world) for people who currently cannot come in. It’s not.
If you require guidance on border entry, and in particular the highly complex ‘Other’ Critical Worker Exception Category contact us for a view on eligibility.
Click here for other Immigration Law articles.
