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The Immigration law that caused over-staying

Bureaucratic insanity, the Immigration law that caused over-staying…

Leading immigration lawyer, Aaron Martin, addresses the recent changes made last week to the Interim Visa policy. The complications caused by the flaw, both before and after its amending, have had serious implications on many of his clients.

Immigration New Zealand’s own processes around Interim Visas have been increasing the number of over-stayers in New Zealand. Thank fully, Immigration New Zealand changed their policy on the 27th of August to address this issue.

Interim visas are what Australians sensibly call "bridging visas". If Immigration New Zealand can’t make a decision on a new visa application before the applicant’s existing visa expires, it can issue an electronic interim visa to allow the applicant to stay in the country until the decision is made.

Prior to the introduction of interim visas, if your existing visa expired and Immigration New Zealand hadn't decided on your application for a new one, you became an over-stayer. So Immigration New Zealand’s own timeliness in decision-making (or lack of timeliness) contributed to creating a pool of over-stayers.

Interim visas were intended to stop that problem. But there was a fundamental flaw in their operation: they expired the day after a decision was made on an application.

If you made a new application on 1 June, and your existing visa expired 1 July, the interim visa would start 2 July to allow you to stay here lawfully until a decision was made. But if Immigration New Zealand declined the new application after 1 July, your interim visa would end one day after that decision, making you an over-stayer.

That one day became crucial to many: you could use it to apply for reconsideration of the decline decision, or to reapply for the same visa.

Applications for reconsideration, however, required you to submit your passport to Immigration New Zealand along with the request for reconsideration. If your passport was held by Immigration New Zealand when the decision to decline the visa was made, you often wouldn’t get it back until three working days later. That meant you were unlawful in New Zealand, and being unlawful meant you lost the right of reconsideration.

Even if you had your passport, if the decision to decline your application was made late in the day on a Friday, by Monday when Immigration New Zealand opened to receive a reconsideration application, you were unlawful in New Zealand and therefore not allowed to apply for reconsideration.

This bureaucratic insanity meant many people legitimately trying to follow the law ended up illegally in New Zealand.

Even when people in this situation decided to leave New Zealand, the practical reality of packing up a life meant they would have a period of over-staying. This would then prejudice their ability to obtain visas offshore in order to return to New Zealand.

Think of all the things you need to do when moving countries: if you have rented a house, you need to give notice in accordance with the tenancy agreement. If you are in a job, you need to give notice in accordance with your employment agreement. You have to close bank accounts, sell cars, and sell personal possessions. You need to arrange accommodation back in your home country – which you may have not lived in sometimes for five years or more. All these things simply can’t be done in 24 hours.

For people who complied with the law, moved back overseas, and applied for a visa to re-enter, Immigration New Zealand would often consider any period of unlawful presence in New Zealand as a basis for claiming the applicant was non-compliant with visa rules and therefore should not be permitted to re-enter New Zealand. This decision was made for people who did not intend, want, or deliberately become over-stayers.

Finally, Immigration New Zealand has followed the Australian model and now the interim visa expires 21 days after a decision is made. This permits a practical window of opportunity for people to challenge a decision that may be incorrectly made. Or, alternatively, it gives them a realistic and practical period of time to leave New Zealand.

It is unfortunate that the change comes after so many people have had their immigration history destroyed by poor policy.

ends

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