False and misleading information

A change at INZ means that provision of false information at any visa stage will prevent applicants from gaining residency in the future. This is aimed squarely at discouraging migrants from using non-professionals for visa applications whcih seems to be part of the Government's overall response to combating migrant exploitation. Because a lot of exploitation is based on dodgy agents or employers providing false information, fake documents and so on, the new changes target this, but insted of punishing the agents, they punish the migrant.

Targeting the migrant may or may not sound fair, but in reality it is the visa itself which is the conduit for exploitation, and the responsibility for accuracy and properness of the visa falls ultimately to the migrant. The migrant applicant must make sure that they are coming to the country lawfully so part of this process is to make sure the person doing their visa application for them is a professional and not part of a scam.

What has changed?

The new immigration instructions have 3 very significant changes to the character requirements:

1. The inclusion of “agent” to the wording in a variety of areas
2. The removal of the defence of not having mens rea (intention) for provision of false information
3. Provision of material false information in any visa application will make the applicant ineligible for a residence visa later on. This is also potentially retroactive.

These changes should be ringing alarm bells because what this means for anyone applying for a visa is that even by mistake, if false information is provided or important information not provided even on a visitor or work visa, then the applicant will be refused residence later down the path.

What is false information?

False information covers a wide range of things in the new changes, from forged documents to simple mistakes on the application form. While the changes are supposed to target exploitation type false information, they also include innocent mistakes as well which may not seem fair, but is routinely used by INZ to justify a decline. 

• A fake job offer
• a fake bank statement, drivers license, work reference
• declaration that the job is genuine when it is not
• declaration of an hourly rate when the actual payment is lower
• declaration of having specific work experience, education, English test score when you don't have these
• support letter from friends or employer with information that is not true
• Not giving certain information that you should provide, or hiding important information
• Agents not declaring their input on the application form
• Information that misleads INZ about the true nature of your situation
• A spelling mistake or mistype or mis-selction on a check box

What about agents?

The word agent refers to anyone who does the application on the applicant’s behalf, but it could also refer to anyone who provides any information on the applicant’s behalf. For example an employer who provides false information on the employer supplementary form or job offer or employment agreement would be in breach of these instructions.

Agent means:

• LIA
• Lawyer
• friend
• employer
• education / employment agent
• HR manager

This is clearly intended to mean any person except the applicant who does so,me kind of work who has some input on the application.

The changes mean that every applicant must have the ability to check that all information provided in the information is true and correct. As many migrants and for example supporting New Zealand citizen or resident partners may not have this knowledge, it means that even self-made applications are much more risky than before. The only people who reliably have the ability to check and understand that the application has been done properly are immigration professionals.

What about professionals?

While most professionals are very careful about checking that information is true and correct anyway, it will also put pressure on us to be thorough about this. There is a lot of case law about the necessity of having mens rea in the commission of an offense, and up to now, the only specific exemption to this was in the case of SMC EOI applications. The courts have held that as this was a specific exemption, the case law would not apply. Now we have an exemption for all visa categories, all applications need to be done very carefully indeed.

Professionals have always been the best option for visa applications and anyone not using a professional has always done so with a certain amount of acceptable risk, but with the changes and increases in INZ processing fees, the level of acceptable risk for many migrants will change significantly.

By using a professional there is an avenue for redress if we don’t do a good job, while employers and agents do not provide any guarantee of doing things properly, so there is a level of ressurance that professionals should be doing a good job.

What is our advice?

1. Without a doubt, all migrants who have any intention, even remotely of staying permanently in New Zealand in the future need to be using immigration professionals such as LIAs or immigration lawyers for their visa applications. But further to this, migrants also need to be encouraging their employers to also check with professionals for any part of the process that may affect them. KIWI@HOME’s service includes full support to all our clients’ employers at no extra cost for any visa application, so we always encourage this anyway.
2. Migrants need to be aware and do their due diligence on who is a licensed professional and therefore is able to work on their behalf, but most importantly has responsibility and accountability when things go wrong. 
3. If you have provided false or misleading information in a previous application, take professional advice on what you should be doing now to preserve any chance of residence in the future.

Check LIA status here https://iaa.ewr.govt.nz/PublicRegister/Search.aspx and check lawyer's status here https://www.lawsociety.org.nz/ 

Contact us for more information dan@immigrate.kiwi.nz

AEWV Government review

The Government is reviewing the AEWV work visa to see if they can find out why it has not fixed the issue of migrant exploitation. Of course the visa is not the issue, but there is a strong indication that they are focusing on the employer-led aspect of it as providing a potential for some employers to use this to their unfair advantage. This is a fair assumption to an extent, and certainly bad employers have more opportunity than they would otherwise, but in the end it will just make it harder for everyone.

So what is going to happen?

The Government is tightening restrictions on employers, and especially lower skilled occupations. INZ will continue to waste more time and money on compliance, and add another level to employer accreditation to check compliance more thoroughly. 

We are seeing more inspections and more need for evidence supplied with accrediation applications, and also many more declines than before. For renewals this was predicted anyway and the main reason why initial accreditations were given a light touch was because INZ did not (and still does not) have the capacity to process such a large number of applications so quickly. It was predicted that on renewal, things would have settled down after the border reopening and INZ capacity would be able to handle more indepth checking, which we are starting to see now.

How will this affect employers?

INZ wants all employers who hire migrant workers to be accredited, so accreditation is still  achievable in terms of business size or business performance, but compliance with immigration and employment law is being checked more, and there is more investigation into where employees come from and how they are onboarded, etc. Changes are affecting employers, accreditation and work visas across the board, and all processes have become more difficult and slower.

So, what should you do?

As always a solid application will go through faster than one that triggers all kinds of alerts. For employers, collecting evidence of continued compliance will be most important, as well as making sure not to get caught out by things that may be normal for Kiwi workers but could trigger compliance warnings for migrants. For example salaried workers tend to be expected to work all hours necessary without overtime pay, and this is fine for Kiwis, but INZ will calculate the pay rate at salary divided by actual hours worked which could put the worker under INZ's wage thresholds or under the rate on the visa, which will fall under migrant exploitation.

In the end the best advice for both employers and workers concerned about remaining compliant and getting visas, job checks and accreditation through quickly and solidly, is to get a professional to manage this for you.

Should I become a lawyer?

It is mid way through 2024 and I have just finished around half the papers of year 4 of a 4 year LLB degree. It has been very interesting and valuable to my work so far and there are many things which I have used from the degree in my immigration work already. The big question though is should I become registered as a lawyer and be an immigration lawyer, or stay as a licensed immigration adviser with a law degree? In the end I don't think it makes much difference as the combination of skills and experience is much more important than the occupational registration.

What I have learned so far though is that while a lot of the learning in the LLB is really useful to an LIA and improves the skill set and approach to immigration work, there is little that would assist a general lawyer to be a good immigration lawyer. I mean that in the LLB degree content there is very little immigration content, but a lot of really good legal analysis and argument skills as well as a broad knowldge of various law which can often be applied in an immigration context.

I am really pleased with the decision to do an LLB and the area where knowledge in law is very useful is in appeals and PPI responses, generally making sure INZ follow their legal obligations to assess applications fairly and without bias.

Migrant exploitation

This has been in the news a lot recently and exploitation is something the Government is really keen to control in New Zealand. However, like most governments they don’t really understand how to go about controlling it…

I think the most important factor in migrant exploitation is how migrants get their visas. It is the visa that is the vehicle of exploitation and having control over this means having control over the actors of exploitation. Without professional representation or at least some contact with an advocate, visitors to New Zealand are probably not going to understand the protections in place we have for them, where to go for help, or even signs to be aware of that exploitation is happening.

The first point of contact for any dealing in New Zealand immigration law, i.e. a visa application, should be the appropriate professionals who are licensed or specifically exempt from licensing. In New Zealand this means licensed immigration advisers (LIA) and lawyers mostly.

By having contact with professionals, migrants will have at least one contact point to query when they feel things might be going wrong. But more importantly, when getting an application done professionally, we pick up on things that don’t seem right, and often give employers a bit of advice or gentle pressure to ensure that potential exploitation doesn’t occur. Often just a gentle reminder that they are being watched is enough to guide a dodgy employer back on track. Almost all employers are good, but there are many definitions of exploitation that even a good employer my inadvertently find themselves doing. In this case a gentle heads up may also help the employer and prevent them from having compliance issues in the future.

In the end, professional representation will almost always cost less than the agents are charging for their scam, so there should be no reason why this protection should not be encouraged more widely. The Government is focussing on employer accreditation but this does not address the root cause.

Check out our page on migrant exploitation for detailed information on prevention and signs of a scam.

https://www.immigrate.kiwi.nz/information-forms/migrant-exploitation 

Meeting eligibility requirements vs proving legal requirements

These are the two aspects of the immigration process which I think are always confused too much. While it may be easy to meet eligibility requirements, to have a visa application approved, it is necessary to prove that you meet them. 

The information on the INZ website and application forms is generally only the eligibility requirements, the legal requirements are found in the legislative instruments such as the Immigration Act 2009 or the Immigration Instructions, which give definition and qualification to the eligibility requirements.

For example, to get a work visa you need a job or job offer. This may be pretty easy, but the legal requirements tell us what kind of job and how this must be proved. This involves factors such as: it must be full time, which means more than 30 hours per week, it must be with a compliant employer, which is defined in various important ways, the job duties and description must align to the ANZSCO code that suits it best, the payrate must be within a certain range, the applicant must have a certain degree of experience or qualification, and so on. All of these legal requirements need to be proved before a visa is granted, even though eligibility is met with the job offer. 

There are also requirements in immigration law which are different to employment law. So if an employer has specific conditions for Kiwi employees that are generally OK, this may not be the case with INZ. How employees are paid for example has specific conditions for immigration that do not exist for NZ citizen or resident employees.

Being able to meet the eligibility requirements is a good indicator that it is worth making an application, and it is likely that you can submit the application. However, submitting an application does not mean that it will be approved, unless the legal requirements are not only met, but also proved.

Compare this to an application where only eligibility requirements are required to be shown, for example a passport application. To get a passport all you need to do (in New Zealand) is apply online with your RealMe login or New Zealand birth certificate, your basic details, a passport photo and payment. If you fill in the form and provide the documents listed on it, then it would be highly unusual for the passport application to be declined. 

A visa application however is not like a passport application, it is more like a job interview or more accurately, a court case. If you apply for a job, you may meet the requirements listed in the job advertisement, but whether you get the job or not will depend on your application and how well it was made, the job interview process and the discretion of the HR person interviewing you. Applying for a job just by showing you meet the requirements on the advertising is not a complete application and does not give you a high possibility of success.