Immigration final notes PDF

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LECTURE 1 - INTRODUCTION Essential Reading D Tennent, Immigration and Refugee Law (Revised 2nd ed 2014) ch 1 Informative Reading Immigration Chronology: Selected Events 1840-2008 T Yee, An Introduction to the Immigration Act 2009, Brookers Human Rights Law (online loose leaf ed, Brookers) 1. PAST IM...

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LECTURE 1 - INTRODUCTION Essential Reading D Tennent, Immigration and Refugee Law (Revised 2nd ed 2014) ch 1 Informative Reading Immigration Chronology: Selected Events 1840-2008 T Yee, An Introduction to the Immigration Act 2009, Brookers Human Rights Law (online loose leaf ed, Brookers) 1. PAST IMMIGRATION POLICY Ashby v Minister of Immigration [1981] 1 NZLR 222 “Immigration policy is a sensitive and often controversial political issue”- Richardson J • New Zealand is a nation of immigrants, originally Britain the motherland. • Government immigration schemes since WWII have had one primary objective – to supplement the labour force in New Zealand • Observations by Glazebrook J in Ye v Minister of Immigration [2009] NZLR 596: the power of the sovereign state is to control its borders. • Limitations on this power are imposed by international law. Ye v Minister of Immigration [2008] NZCA 291 “There is consensus at international law and in discussions of international law in domestic contexts that the right to control borders is a fundamental incident of the sovereignty of a state. Within the limits of its borders, a state is said to have “exclusive territorial control” … and on crossing a state’s border, all individuals and property fall under the territorial authority of that state …The consequence of this is that the state has the right to exclude or expel non-citizens. This is one of the earliest and most widely recognised powers of the sovereign state” Glazebrook J - There have been periods where groups have faced racism in New Zealand, for instance Chinese and Pacific Islanders. 2. IMMIGRATION LEGISLATION Four significant pieces of immigration legislation:  Immigration Act 1964  Citizenship Act 1977  Immigration Act 1987  Immigration Act 2009 Immigration Act 1964 “An Act to consolidate and amend the law relating to immigration in New Zealand” • A permit gave a person the right to enter New Zealand • Preference given to people from certain countries, with a traditional bias towards migrants from UK • People illegally in New Zealand committed an offence • Absent from the humanitarian threshold was the requirement to take into account public interest issues. Citizenship Act 1977 “An Act to make better provision with respect to the status of New Zealand citizenship, and to consolidate and amend the British Nationality and New Zealand Citizenship Act 1948” - Real focus of the Act was to differentiate between citizens and non-citizens. - Act opened the way for a different approach to immigration: s 8 provides for the attainment of citizenship by grant. Requirements are: • being resident in NZ for a required length of time; • intention to reside in NZ; and • character and language requirements. These are all conditions which have nothing to do with whether a person is a British subject. Immigration Act 1987 “An Act generally to reform the law relating to immigration, and in particular to remove the need for persons who are in New Zealand unlawfully to be dealt with by way of criminal prosecution.”

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Act saw the introduction of the concepts of visas and permits: A visa enabled a person to travel to New Zealand and present to officials at the border. If everything was in order, then the visa converted to a permit which set out the terms and conditions under which the person was allowed to remain in New Zealand. • The preference to grant permits to people from specific countries was gone. • Removed the need for persons who were in New Zealand unlawfully to be dealt with by way of criminal prosecution. •

Immigration Act 2009 “It is 21st century legislation which reflects the changing trends in immigration and it will encourage the visitors, students, skilled workers and new residents that New Zealand needs to grow our economy” Former Immigration Minister Jonathan Coleman Structure of the system

Sections 3, 25, 70 of the Immigration Act 2009 3 Purpose (1) The purpose of this Act is to manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals. (2) To achieve this purpose, the Act establishes an immigration system that— (a) requires persons who are not New Zealand citizens to— (i) hold a visa to travel to New Zealand; and (ii) hold a visa and be granted entry permission to stay in New Zealand; and (b) provides for the development of immigration instructions (which set rules and criteria for the grant of visas and entry permission) to meet objectives determined by the Minister, which may include objectives such as— (i) contributing to the New Zealand workforce through facilitating access to skills and labour; and (ii) supporting families; and (c)allows for the management of the immigration aspects of border control, by setting requirements that apply to persons arriving in New Zealand or who are intending to arrive in New Zealand; and (d) provides a process for implementing specified immigration-related international obligations; and (e) includes mechanisms to ensure that those who engage with the immigration system comply with its requirements, including mechanisms that—

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(i) enable immigration officers to gather information in relation to visa holders, employers, and education providers to determine compliance with obligations in respect of the system; and (ii) prescribe the system for the deportation of people who are not New Zealand citizens and who fail to comply with immigration requirements, commit criminal offences, or are considered to pose a threat or risk to security; and (f) establishes a specialist tribunal to consider appeals against decisions made under this Act and to consider humanitarian appeals; and (g) supports the settlement of migrants, refugees, and protected persons. Chen v The Department of Labour “The Immigration Act 2009 has at its forefront the principle of personal responsibility for immigration status, in that persons other than New Zealand citizens are obliged to ensure that they are on a valid visa at all times whilst in New Zealand.” Woolford J Some changes made by the 2009 Act: 1. Removal of the distinction between a visa and a permit. A visa allows a visa holder to travel to NZ and apply for entry permission. If entry permission is granted, the person is allowed to enter and stay in New Zealand under the terms and conditions set out in the visa. If a person is not granted entry permission, he or she is liable for arrest, detention or turnaround. Different classes of visas: • Residence • Permanent residence • Temporary entry class visas:  Temporary visas,  Limited visas,  Interim visas, and  Transit visas. Residence and permanent resident visas: ss 73, 74 Temporary entry class visa: Immigration Act 2009, s 70 Entry Permission: Immigration Act 2009 s 107   

A holder of a resident visa is entitled to travel to NZ and apply for entry permission. A holder of a permanent resident visa is entitled to travel to NZ and be granted entry permission. A holder of a temporary entry class visa is entitled to remain in NZ for a finite period of time and undertake activities as permitted by the visa.

2. Classified information can be used in a larger number of decision making processes. Section 3(2) (e) includes mechanisms to ensure that those who engage with the immigration system comply with its requirements, including mechanisms that— (i) enable immigration officers to gather information in relation to visa holders, employers, and education providers to determine compliance with obligations in respect of the system. 3. Merger of the categories of deportation, removal, and revocation of permits into one category of “deportation”. Section 3(2) (e) includes mechanisms to ensure that those who engage with the immigration system comply with its requirements, including mechanisms that— (ii) prescribe the system for the deportation of people who are not New Zealand citizens and who fail to comply with immigration requirements, commit criminal offences, or are considered to pose a threat or risk to security. 4. Merger of four independent review bodies into the Immigration and Protection Tribunal (Removal Review Authority, Residence Review Board, Refugee Status Appeals Authority and Deportation Review Authority).

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Section 3(2)(f) establishes a specialist tribunal to consider appeals against decisions made under this Act and to consider humanitarian appeals. 5. Category of protected person created. 3. IMMIGRATION INSTRUCTIONS Section 3(2) (b) provides for the development of immigration instructions (which set rules and criteria for the grant of visas and entry permission) to meet objectives determined by the Minister, which may include objectives such as— (i) contributing to the New Zealand workforce through facilitating access to skills and labour; and (ii) supporting families. Refer to structure of the system diagram. Immigration New Zealand Operational Manual – Residence – R1 Immigration Act 2009, s 25 • Section 25 requires the Chief Executive to publish immigration instructions, and ensure that copies of immigration instructions are available for inspection. • The New Zealand Association for Migration and Investments Incorporated v Attorney-General, Randerson J at para [25] described the Operational Manual as: “… a lengthy and highly detailed document.” • Section 22(5) sets out matters that may be included in the instructions. Patel v Chief Executive of the Department of Labour [1997] 1 NZLR 102 (HC) • Baragwanath J made some useful comments about the legitimacy of immigration policy. • First he noted that the determination of policy is the prerogative of the Crown and, is subject to judicial review. “The Courts may no more abdicate responsibility for ensuring due weight is given to human values than they may usurp the authority of government; Caesar is entitled to what is Caesar’s and the litigant to what is his; like the Judges, both are subject to the rule of law.” To ensure the fairness of policy it is necessary to ensure that: • The policy is clearly stated; • The scope of the policy is understood; • The lawfulness of the policy is assessed by the settled laws of the land. Includes the rule of law and NZ’s international obligations. The rules should: – be clearly stated; – not be expressed in a manner which are impossible to comply with; and – be applied fairly and consistently. Patel v Chief Executive of the Department of Labour [1997] NZAR 264, 271 (CA) “A policy document, such as the [OM] is not to be construed with the strictness which might be regarded as appropriate to the interpretation of a statute or statutory instrument. It is a working document providing guidance to immigration officials and to persons interested in immigrating to [NZ] … It must be construed sensibly according to the purpose of the policy and the natural meaning of the language in the context in which it is employed, that is, as part of a comprehensive and coherent scheme governing immigration into this country.” Thomas J p 11

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The challenge under the 2009 Act is to ensure that a fair balance is achieved between the national interest and the rights of individuals This is reflected in R1 of the Immigration New Zealand Operational Manual. “The objective of New Zealand’s residence programme is to contribute to economic growth through enhancing the overall level of human capability in New Zealand, encouraging enterprise and innovation, and fostering international links, while maintaining a high level of social cohesion.”

LECTURE 2 - VISAS – PART 1 Essential Reading D Tennent, Immigration and Refugee Law (Revised 2nd ed 2014) ch 4 pp 105-169. Informative Reading Expression of Interest Form INZ 1100 Skilled Migrant Category Expression of Interest Guide INZ 1101 1. INTRODUCTION Section 3(1) The purpose of this Act is to manage immigration in a way that balances the national interest, as determined by the Crown and the rights of individuals. Section 3(2) To achieve this purpose, the Act establishes an immigration system that (a) Requires persons who are not NZ citizens to – (i) Hold a visa to travel to NZ; and (ii) Hold a visa and be granted entry permission to stay in NZ. (Exam hint: if ever in a contentious position, look at the purpose section!) Starting basis of 2009 Act Section 14 - persons who are not NZ citizens are required to hold a visa to travel to NZ. Section 45 – grant of visa is generally a matter of discretion. No person is entitled to a visa as of right. Onus is on the person/migrant – make sure that they are on a valid visa at all times while in NZ. Statutory Bar:  Sections 15 and 16 stipulate persons who are not to be granted visas or entry permission. Section 15 – convicted people. Section 16 – people who are likely to commit an offence.  Section 16: discretion to minister is considerable.  Despite these categories of non-eligibility, a person coming within those categories may still be granted a visa or entry permission by the Minister by way of special direction under s 378. Under s378 – absolute discretion!  This is done in the Minister’s absolute discretion, meaning that the rights of review are extremely limited. Rights of the client are very limited when you fall into parts of the IA that include absolute discretion. No questions can be asked in this case! - Permanent Resident visas entitled to visa permission. - R visas have to apply for it. Section 70 Classes of visa The following classes of visa may be granted under this Act: (a) residence class visas, consisting of— (i) permanent resident visas (ii) resident visas (b) temporary entry class visas, consisting of— (i) temporary visas (ii) limited visas (iii) interim visas

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(c) transit visas. 2. TEMPORARY ENTRY INTO NEW ZEALAND A temporary entry class visa allows a person to enter and remain in NZ for a finite period of time (as set out in the visa) and undertake activities as allowed in the visa (work/study/holiday). The objectives of temporary entry are to: • facilitate the entry of genuine visitors, students and temporary workers, while managing the associated risks; and • contribute to building strong international links, attract foreign exchange earnings and address skill shortages.   • •

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Sections 45 and 186 state that the grant of a visa is generally a matter of discretion and a person does not have a right to appeal against the decision to decline a visa application. In terms of temporary work visas there is a large range of options: Work to residence. Essential skills: fill shortages where NZ citizens or residence class visa holders are not available for the work offered. Essential Skills in Demand Lists are published on the immigration website at www.immigration.govt.nz/essentialskills. WK2.10.5 contains the Labour Market Tests to determine whether or not there is a New Zealander available to do the job. Specific purpose or event. Students/trainees. Study to work visas.

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Temporary visa: s 79, Operational Manual E1.1 Interim visa: Immigration Act 2009, s 80, Operational Manual I1 Interim visas – a new thing – temp visa – designed for a person who has applied for a new visa – mismatch between Act and Operational Manual. IA 2009 takes precedence as it governs the Operational Manual. Given at absolute discretion of the Minister. Doesn’t mean a person is more likely or less likely to get a visa – technically should be automated but best thing is to contact INZ.

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Limited visa: Immigration Act 2009, ss 81-85, Operational Manual L1-L6 Limited visas are for a limited purpose – can only do what is in the visa – cannot apply for another visa.

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Transit visa: Immigration Act 2009, s 86, Operational Manual N1-4 Sit at the airport, cannot leave, cannot apply for another visa.

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PERMANENT ENTRY INTO NEW ZEALAND - RESIDENCE PROGRAMME • Visas for permanent entry to NZ come in the form of resident class visas (s 74), and permanent resident visas (s 73). • The official objective of the residence programme is to contribute to economic growth through enhancing the overall level of human capability, encouraging enterprise and innovation, and fostering international links, while maintaining a high level of social cohesion. • This objective is achieved through selecting a broad mix of migrants on the basis of either their skill and experience or their family links to New Zealand. Under the Immigration Act 2009 provision is made for a permanent resident visa (s 73) and a resident visa (s74). • The holder of a resident visa is entitled to travel to New Zealand and apply for entry permission. If entry permission is granted a person is able to remain in New Zealand indefinitely and undertake employment and study of his or her own choice. Other conditions may be imposed. • The holder of a permanent resident visa has the same rights as that of a resident visa, but is also entitled to travel to New Zealand at any time and be granted entry permission. There are three streams within the New Zealand Residence Programme: • The Skilled/Business stream; • The Family Stream; and • The International/Humanitarian stream.

Immigration Act 2009, ss 73, 74, 92 Immigration New Zealand Operational Manual – R6 See Appeals Lecture – s 187(4)

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3.1. Skilled Migrant • The process is started by the applicant filling an Expression of Interest (EOI). • The EOI is assessed and may result in an “invitation to apply”. When an invitation is made to a person to apply for a visa, this is an authorisation to apply. Latest change is points requirement. In the past, 100 points were needed to get into pool. Automatic selection if 140 points. Increase to 160 points now!

Terminology Long term skill shortage list (LTSSL): • Used for both temporary work and residence instructions. • If migrant comes to work in NZ based on the LTSSL requirements, he/she may be eligible for residence through work to residence (LTSSL) instructions, or skilled migrant category. • The LTSSL is contained in Appendix 4 of the Operations Manual. LTSSL – we don’t have enough New Zealanders doing these jobs. Immediate skill shortage list (ISSL): • Only used for temporary work instructions. • If migrant comes to work in NZ based on ISSL requirements, there is no direct link to residence. • If migrant meets the requirements on the list and in the Immigration instructions, INZ accepts that there is no NZer available for the position. • ISSL can be found on the INZ website. Canterbury skill shortage list (CSSL): • CSSL is for temporary work visas under both lists needed in Canterbury during the rebuild. • It only provides a path to residence if the occupation is on the LTSSL. • Again, if on LTSSL or ISSL, immigration officer will accept that there is no available NZer for the job. • CSSL can be found on INZ website. Appendix 6: Contains list of occupations that can be considered skilled employment for the purposes of SM7.10.1 (Skilled Migrant category).

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Formal Education: • Formal education and training refers to the level and amount of education and training required for competent performance of the tasks required in an occupation. Previous work experience and on the job training also counts. • It is measured in terms of educational qualifications as set out in the Australian Qualifications Framework (AQF) and the New Zealand Register of Quality Assured Qualifications (NZQA). ANZSCO: Australia and New Zealand Standard Classification of Occupations. ANZSCO is a skill-based classification which was developed to classify all occupations and jobs in the NZ and Australian labour markets. It defines these occupations according to their attributes, and groups them on the basis of their similarity. ANZSCO also sets out the descriptions of the occupations, and the qualifications and experience required. This classification of occupations captures the “major work groups” which are as follows: 1. Major Group 1 – Managers. 2. Major Group 2 – Professionals. 3. Major Group 3 - Technicians and Trades Workers. 4. Major Group 4 - Community and Personal Service Workers. 5. ...