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New Zealand Association For Migration & Investment

New Zealand Association For Migration & Investment

Background To The Current Action By Nzami Against The Immigration Policy Changes Of 19 November 2002

Overview

On 19 November 2002, the Minister of Immigration announced changes to Government policy affecting applicants in the General Skills (points based), Investor and Long-term Business Visa categories.

The most significant of these changes were:

1. The restriction of temporary “Job Search” visas to General Skills applicants with qualifications in fields covered by the Occupational Shortages List (OSL). Those with qualifications not covered by the OSL, although their applications may have been lodged as early as April 2001, will now no longer qualify. The OSL changes frequently so that applicants who met occupational criteria at the time of applying would, under the new rules, have no way of knowing whether they would still be eligible when their application was considered.

2. Long-term Business Visa (LTBV) applicants will likewise have to meet new tougher criteria in the requirements of running their businesses

3. Unrealistically tough new English language requirements. Skilled migrants will now have to meet what has been described as university level English and Investor migrants, high school level English.

4. The changes have retrospectively affected people who in good faith applied for immigration to New Zealand as far back as 1 April 2001

The impact of these changes has been two-fold:

1 When combined with the mid-year increase in the General Skills passmark, the November changes appear to have threatened to effectively shut down both the skill and business categories of immigration to New Zealand. This could have huge financial and social implications for our country.

2 The retrospective nature of the changes has been reported internationally and this has affected New Zealand’s reputation for fair, open and honest policies and practices.

NZAMI’s response has been to

1 address our concerns to the Minister of Immigration

2 challenge the retrospective aspects of the changes in the High Court

3 develop an ongoing programme aimed at achieving consistent, reliable and fair immigration policies for the long-term good of New Zealand.

Why NZAMI is opposing the retrospective application of the November policy changes.

People who commenced the process of applying for New Zealand residence prior to 19 November 2002 would have relied, largely, on information provided by the NZIS and would have made their decisions with that information in mind.

These applicants would have paid the correct application fees and would have been provided with receipts for this by the NZIS. The Immigration Service would also have confirmed that their applications were being processed and would have advised them on the anticipated timing.

In a great many cases, applicants would, quite reasonably, have made changes to their life circumstances (including possibly buying and/or selling property) and would have committed themselves financially, emotionally and in some cases physically to a move to their new country. They would have taken such steps to a very great extent on the basis of information supplied by the NZIS.

Furthermore, the working experience verification process (where the NZIS telephones an applicant’s current employer) may have adversely affected a person’s standing with that employer.

As a result of the November policy changes, these applicants have now been told that they must meet criteria that did not apply when they entered into what was (in effect) a contract with the New Zealand Government. In the majority of cases, they must now meet shifting criteria that may or may not apply at some stage in the future when their application is decided.

NZAMI maintains that the retrospective application of the November policy changes has been inherently unfair, breached core principles of natural justice and has also breached the New Zealand Bill of Rights Act of 1990.

The retrospective nature of the policy changes has brought New Zealand into international disrepute, with the issue being reported in the overseas media.

After a period of stability and consistency in immigration policy, apparently short-term, reactive policies have again been introduced without any apparent reference either to the rights of would-be future New Zealanders or to our country’s economic needs.

NZAMI acknowledges government’s right to set policy as it sees fit. However it was not , in our view, morally acceptable for government to change the rules retrospectively in circumstances such as these.

We have also received legal advice that retrospective application of the November changes might constitute a fundamental breach of administrative law. A dangerous precedent might have been set which could encourage this or future governments to make further retrospective changes in other areas of people’s lives.


What steps has NZAMI taken?

A delegation from NZAMI’s Board met with the Minister of Immigration in late November 2002. The delegation expressed NZAMI’s concerns over the policy changes and sought clarification of details of the changes. The Minister agreed to consider our concerns and to have her officials provide answers to the detailed questions raised at that meeting. That response was received after Christmas.

Meanwhile, the NZIS commenced writing to current applicants, informing them of the policy changes and offering these applicants a restrictive range of options including withdrawal of their applications. In our opinion, the advice contained in the letters was inaccurate, incomplete and appeared to deny people their rights under the Immigration Act.

We therefore decided that urgent action was needed to prevent a further breach of the rights of prospective immigrants. Proceedings against the retrospective application of the policy changes were filed in the Hight Court on 23rd December 2002.

On 24th December 2002, NZAMI and the NZIS reached an interim out-of-court settlement. The result of the settlement is that

1. Long-term Business Visas applications received prior to 20 November 2002 will be processed under the old policy.

2. The status of entrepreneur applications for permanent residence, (an entrepreneur residence application would normally follow a successful LTBV application) in cases where LTBV Applications were lodged prior to the 20 November, will be decided by the High Court at a substantive hearing, possibly in March 2003

3. The NZIS will now include with all letters to people affected by the policy changes, the advice that legal action is being taken against these changes. The letters will also suggest that those affected seek professional advice.

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