Immigration Law Update: What will happen to the border?

As we enter the second quarter of 2021, many employers are asking: what is likely to happen with the New Zealand border this year? Rachael Mason, from Lane Neave, seeks to give insights into this question.

Answering this question involves a degree of crystal-ball gazing, but our view is that the border is likely to remain closed or mainly closed for most or all of 2021. When the border does reopen, it is expected to be gradual, which will involve a prioritisation system for deciding who is allowed in first and who will have to wait longer. Employers who still need to access migrant workers not already in-country will need to have a good understanding of the potential opportunities (or lack thereof) for bringing people in through the closed border.

At the same time, Immigration New Zealand has signalled that, in 2021, it intends to proceed with rolling out compulsory employer accreditation for all employers who wish to employ ‘sponsored’ migrant workers (most commonly Essential Skills and Talent work visa holders). This is the first phase of the employerled ‘Gateway Framework’ policy. The initial research regarding this new framework indicated that these changes could potentially affect 16,000 employers and 53,000 visa holders.

Border exception requests

The continuation of the border closure means (broadly) that only New Zealand citizens and residents and their family members or those who can secure a border exception will be able to enter New Zealand for the foreseeable future. The two main exception categories are the ‘humanitarian’ category and the ‘other critical worker’ category. Other niche exception requests can be used in specific circumstances, but these will be the two main routes for most applicants. In both categories, the threshold to be met to be granted an invitation is high.

Humanitarian exceptions

A significant number of visa holders and/or their family members are still ‘stranded’ offshore and are unable to meet the threshold for securing a humanitarian exception. Common examples include:

• a migrant worker employee who held a work visa and ongoing New Zealand employment but has left the country (eg, to return to their home country during the lockdown or to spend time with a sick family member overseas)

• the main applicant came to New Zealand ahead of their family members and has a work visa and ongoing employment and is now trying to get an exception to allow the family members to join them in New Zealand.

There must be exceptional humanitarian circumstances that make it strongly desirable to grant entry. In both examples above, in the absence of compelling evidence to demonstrate the humanitarian requirements are met, they are likely to be unsuccessful. We have seen numerous iterations of both scenarios, many with moving stories of the effect that not being able to enter New Zealand is having, but where they have been unsuccessful (often on multiple occasions) in securing an exception. The mere fact of family separation is (unfortunately) not sufficient in these instances. For those migrant workers and their families who find themselves in this situation, any change to this position is unlikely until at least the second half of 2021 or later.

Other critical workers – unique experience, technical or specialist skills

This category is worth considering if you have highly skilled, senior level employees, very specialised employees or potential employees who you need to bring to New Zealand. The bar to meet to succeed with an application under this category is very high. Factors that Immigration New Zealand will consider include:

• whether the person has unique experience and technical or specialist skills such that there are no others or a “very limited pool available” of workers who could perform the role in New Zealand

• time criticality of the person coming to New Zealand – whether the work or project will cease, be severely compromised or significant costs will be incurred if the person does not come to New Zealand

• why it is not possible to redeploy New Zealand-based employees or adopt other solutions, such as remote working.

On first read, many employers will consider that they can successfully meet these requirements for a particular employee they wish to

bring in. However, our advice is employers should not under-estimate the significant amount of work required to successfully secure an invitation via this route. The process is complex and the decline rate is high. A significant number of the instructions our firm receives to help with these requests are where the employer has already tried to make a request without expert support and been unsuccessful, losing valuable time if the matter is of an urgent nature.

Compulsory employer accreditation

Immigration New Zealand has signalled it intends to proceed with its strategy for compulsory employer accreditation for all employers of sponsored migrant workers in mid-2021. These changes will be significant for almost every employer of migrant workers in New Zealand. We will provide more information on these policy changes when further announcements are made. However, there can be advantages to getting accredited now before the scheme is introduced. We encourage any employers who are not already accredited to seek advice regarding the reasons and advantages of applying for accreditation before the new system is introduced.

Rachael Mason is qualified in New Zealand, England and Wales, and has practised exclusively in the area of immigration law for several years. Rachael is a facilitator for HRNZ PD courses, virtual courses and webinars. Go to hrnz.org.nz/pd to see upcoming courses. She works with both multi-national corporate clients and smaller local employers across a range of industry sectors in managing their global and local migrant workforces and developing and maintaining compliance and legal right to work policies. Rachael is focused on providing highquality technical immigration advice that is both pragmatic and commercial.