‘Other critical worker’ exception recalibration: don’t be fooled!

On 11 September Immigration New Zealand (INZ) released some policy changes in relation to the criteria for border exceptions for ‘other critical workers’. At first flush, it might seems that these changes broaden the category and potentially open a pathway for a large number of new requests (and those that have previously been declined) to now successfully secure a border exception. However, our advice is not to be lulled into a false sense of security in relation to these changes. Although the changes represent a slight easing of the policy; which is a welcome change and a step in the right direction for supporting our economic recovery, that easing is extremely limited. The bar for securing an exception under this category remains at a very high level.

Since early August there have been approximately 1,000 border exception requests under the ‘other critical worker’ category and the decline rate has been very high. Given the high decline rate on exception request applications (generally), INZ has also been working to try and educate the immigration industry on the high threshold needed to secure border exceptions in order to help manage expectations of their clients (the applicants). One of our partners has co-hosted two of those information webinars with INZ on behalf of the Industry (Steering) Group.

With this in mind it is very important to understand that this policy change, by INZ, is defined as a slight recalibration of the policy and is not intended to represent a “loosening” of the criteria. We understand this was the exact direction provided by Cabinet when signing off these changes. The changes have only become necessary to allow approvals for some applications where it could not have been the intention of the government to decline such an important request when setting the initial criteria. In other words, resolving the issue where INZ has been forced to decline an application in circumstances when it really should have been approved. We have dealt with a few of those cases first hand (so are now sending those back in).

The key change made is in relation to one of the four ways an applicant can meet the definition of ‘other critical worker’. Under the previous policy, a person could be considered to be an ‘other critical worker’ if that person:

“…has unique experience and technical or specialist skills that are not obtainable in New Zealand.”

This policy has now been amended to read as follows:

“…has unique experience and technical or specialist skills that are not readily obtainable in New Zealand.”

The policy then goes on to clarify that when assessing the question of ‘not readily obtainable’, the following factors are some of those that may be taken into consideration:

• Whether there are no workers in the country who could perform the role; or
• Whether there is a very limited pool of available workers who could perform the role and they are not available to the employer.

It is this firm’s view that this policy amendment, although positive, amounts to only the slightest recalibration and, unfortunately, will not be the solution to the pain that many New Zealand organisations are experiencing due to being unable to secure entry for key people locked outside our closed border.

Casual readers of the new policy may easily be led to believe that this new requirement resembles something like a high-level Essential Skills visa approach – where if the labour market has been tested and a suitable candidate couldn’t be found, then a border exception would be possible for those people who are employed in roles that are very difficult to recruit for. That was our initial view on first review, but it is now clear to us in the vast majority of situations this will not be the case. The bar is much higher than that and it is this firm’s view that INZ’s interpretation of “limited pool” is likely to refer more to situations where there are perhaps less than a handful of people in New Zealand with the requisite skills, coupled with strong evidence of the organisation’s attempts to attract that talent, work remotely, use other in-house skills to share responsibilities, develop internal talent or second in, etc. The key point here is that where previously it had to be demonstrated that there were “none at all” in the talent pool here, whether employed by you or not (i.e. if there was someone in New Zealand that could do it, the request would be declined), a border exception may now be possible where there are “a few” with the requisite skillset.

On the plus side, opening up potential to apply in situations where there is a ‘very limited pool’ is a positive change. This change to the policy goes some way towards addressing behaviours that were passively encouraged by the previous policy in relation to potentially poaching senior, highly skilled or specialist candidates from other New Zealand businesses. As this firm has previously stated, a policy that passively encourages a “rob Peter to pay Paul” approach is counter-productive and does not resolve the broader issue of a key talent gap. It is good to see INZ taking a more supportive policy stance in this regard as the focus starts to shift towards economic recovery that no doubt will ramp up post-Election.

A further positive signal from this change is the possibility for some senior level roles, that are more generic in nature and that have previously been outside the policy, can now be granted an exception. In our view senior level executive roles such as Chief Executive Officer, Chief Operating Officer, Chief Financial Officer, etc. (particularly those where industry-specific knowledge are also important) are the types of positions that may now be more readily able to secure an exception, whereas in the past they would not cut it.

We anticipate that these policy changes will prompt a significant increase in the number of requests being made under this category. However, for the reasons outlined above, although a select few may now be successful under the new policy, many of these applications are still likely to be declined.

Even with these policy changes, the threshold for successfully securing a border exception remains very high and a strategic approach, coupled with strong submissions around the policy requirements being met will be needed to secure a successful outcome. As indicated above, it is likely that there will be an influx of applications under this new policy as many employers will not appreciate the fact that the new policy still imposes a standard that will be unachievable in a large number of cases. In that environment, to make a request stand out from the masses, the importance of a well thought out application with accompanying support documentation will be all-important.

Getting expert advice from the outset on a border exception request will help ensure you put your “best foot forward”. We are routinely contacted by unsuccessful applicants who have been inappropriately assisted by advisors without the expertise required to manage these highly complex requests. Our team continues to work with various organisations to support their ‘other critical worker’ border exception requests and we have a thorough understanding of the requirements to be met to secure a successful outcome.

Contact us today to speak to one of our experts about how to go about making an exception request and to get an opinion on whether you are likely to be able to secure one.