Breaking Down Iac19/01 Return to the 'Status Quo'

Breaking Down Iac19/01 Return to the 'Status Quo' For Partnership Based Visitor Visa Applications

The past few months have been eventful in the immigration landscape. Partnership visa applications were a hot topic and the media could not get enough of it. Migrant protests and political boycotts were all over our screens, thanks to the words of our honourable MP, Shane Jones.

Whilst the Indian community was angry (and rightfully so), they failed to appreciate how much of a trigger this was for the changes that were about to unfold. Mr Jones' comments attracted media attention and this put the necessary pressure on the Government to act. Protests and public outcries were reported on a regular basis and our Prime Minister had no other option.

Culturally arranged marriages

The first of the changes was the creation of a new policy for applicants who were married to New Zealand citizens or residents through a culturally arranged marriage, provided that they met the following requirements:

1. The marriage followed an identified and recognized cultural tradition;
2. The marriage is intended to be maintained on a long term and exclusive basis; and
3. The New Zealand Resident/Citizen partner is eligible, meets character requirements and supports the application.

A further key point to note is that the visa application must be lodged within 3 months of the wedding.

No definition or clear instructions have been provided in regards to how Immigration New Zealand would assess whether a marriage followed an 'identified' and 'recognized' cultural tradition and what type of sources they would accept as the authority on the matter. It would presumably be a matter of trial and error for applicants.

Of key concern for migrants was that this policy ignored those who married for love (or other reasons), and those who did not have a culturally arranged marriage. Those applicants did not fit under the Partnership-based Visitor Visa Category (as they do not always live together at the time of the application, which is a requirement under this Category) and they do not meet the criteria under the General Visitor Visa Category, as Immigration New Zealand does not believe the applicant intends a 'temporary stay' which is a requirement under the General Visitor Visa Category. In addition, the Policy (conveniently) ignored the partners of New Zealand Work Visa holders (some of whom had been in New Zealand for several years and held long-term Work Visas), as it only applies to partners of New Zealand citizens or residents.

As such, despite dousing the media frenzy, there were a lot of issues that this Policy did not address.

Immigration New Zealand presumably realized this shortcoming and released an Internal Administration Circular No: 19/01 (or IAC 19/01) in early December 2019. This was a return to the status quo.

Partnership-based Visa applications

Under the current Policy (pre-IAC19/01) partners of New Zealand citizens, residents or work visa holders are technically ineligible to apply under the Partnership-based temporary visa category or the General Visitor Visa Category as they cannot generally demonstrate the following:

1. That they were living together with their partners (who were based in New Zealand); and
2. That they intended a temporary stay in New Zealand (as they no doubt intended to remain in New Zealand with their husband, wife or partner on a long-term basis).

This means that all partnership-based applications have to be lodged as an exception to instructions.

Prior to early 2019, Immigration New Zealand was taking a pragmatic approach and granting these applicants with a General Visitor Visa for a short-period of time to allow them to enter New Zealand and live with their partners. The applicants could then apply under the Partnership Category for further visas if their relationships continued. This was a sort-of compromise and one which had worked for several years. However, this pragmatic approach was suddenly ceased and a wave of partnership visa declines indicated that Immigration New Zealand had taken a different stance early this year. Applicants were no longer granted short-term Visitor Visas and were instead declined because they had not been living with their partners at the time the application was lodged/processed.

Therefore, the release of IAC 19/01 was a return to the status quo that existed prior to early 2019. It does not change the existing Policy, but sets out guidelines for immigration officers when assessing applications for visas from applicants who do not meet the partnership criteria (i.e. have not lived together with their New Zealand based partners for a sufficient time).

So, what do you need to do?

If you are in a relationship with a New Zealand based individual, but you have not lived with your partner for a sufficient period of time, are currently living apart or if you cannot demonstrate the partnership is stable, you may need to apply for a General Visitor Visa or a Culturally Arranged Marriage Visitor Visa (depending on your circumstance).

Either way, you will need to provide evidence that your relationship is credible, genuine and stable.

If you are applying under the General Visitor Visa Category, your application will be assessed against bona fide requirements. This is essentially the case officer's assessment as to whether you will remain in New Zealand unlawfully, breach any visa conditions while you are here or be unable to leave or be deported from New Zealand. As such, your connections to your home country, past travel history, as well as evidence of your relationship with your New Zealand-based partner will be crucial.

It is important that you seek proper legal advice in the preparation and submission of these applications. Partnership applications vary significantly and your circumstances may require a different approach.

Back to normal?

Despite the release of IAC19/01, no one (at least those in the industry) believes that everything is back to normal as it is unclear how the immigration officers at ground level will be applying these changes to the applications they process. It seems that only time will tell whether IAC19/01 is a step towards a positive change in this area or whether it will be used as a tool to justify further unreasonable declines. Scepticism exists amongst the migrant community, as well as the lawyers and advisors who have worked with Immigration New Zealand for several years, when it comes to immigration, things are not always as they seem.

https://www.mcveaghfleming.co.nz/key-staff/ramya-sathiyanathan

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