IMMIGRATION LAW UPDATE RACHAEL MASON
Employers of migrant workers – buckle in for a ride! For employers of migrant workers and migrant workers themselves, 2020 has presented considerable uncertainty, and we have already seen numerous policy changes in reaction to the continuing COVID-19 situation. With what we know so far of the policy changes that have happened to date and those in the pipeline, it is clear the road ahead will not be an easy one.
T
he two major themes that can be seen are that:
• it will continue to be challenging to secure temporary work visas for migrant workers • the possibilities for migrant workers to gain residence (and therefore remove themselves from the temporary visa ‘cycle’) are limited. We do not expect these settings to change in the near future, so it’s a case of doing what can be done from a planning perspective to ensure you retain important migrant workers, and buckling in for the ride.
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HUMAN RESOURCES
SUMMER 2020
Employees stuck offshore
The border is closed, and our managed isolation facilities remain limited, meaning we can only allow a trickle of arrivals each day.
introduced, the bar remains high under this category, and it has a high decline rate.
Work visas
Most employees and prospective employees who are offshore will not be able to enter New Zealand for the foreseeable future. Immigration New Zealand (INZ) is not processing any employment-based applications where the application is offshore. Similarly, for those applicants who had visas issued but had not yet entered New Zealand, INZ is doing nothing to support these applicants to allow them to enter. The only possible way to secure entry for those offshore is through a successful ‘border exception’ request or, in limited circumstances, where the person had spent a significant amount of time in New Zealand before the border closure and can meet the narrowly defined policy requirements.
With levels of unemployment expected to continue to increase, the likelihood is that the labour market test component of Essential Skills work visa applications will continue to present challenges for employers supporting applications for their migrant worker employees. It will be particularly challenging in lower-skilled or lower-paid positions, where increased numbers of applications will be received and the assumption from INZ will be that it is relatively easy to train or upskill a New Zealand citizen to perform that role. In general terms, the higher the number of applicants, the more difficult it will be to satisfy INZ that no New Zealand citizens or residents are suitably qualified or readily trainable to perform the role.
‘Border exception’ has a range of categories under which a special visa to allow entry through the closed border can be obtained. For employers, it is worth considering whether the ‘other critical worker’ border exception category can be applied to employees offshore. Although this policy has been slightly recalibrated since it was initially
A further note of caution in relation to Essential Skills work visas is the likelihood that INZ will incorporate a higher ‘median rate of pay’ into the policy. Stats NZ recently released the latest labour market information indicating the median rate of pay has now increased to $27 per hour. We anticipate INZ may look to increase the median rate of pay in
