The announcements made yesterday were favourable to a significant cohort of New Zealand citizens and existing New Zealand resident visa holders who have been patiently waiting for the ability to enter New Zealand without the burden of navigating the MIQ maze. However, the announcements made very little reference to the significant number of applicants who have made applications under the investment-based products (Investor 1, 2 and Parent Retirement Category). We set out our thoughts here in relation to border entry for investor and parent retirement category migrants in the wake of the announcements yesterday and also further information that has been received from Immigration New Zealand (INZ) regarding how they are currently approaching processing for these visa products.
Many applicants may not be aware of the Afghan Nationals case (see our articles of 3 December and 9 December) that has now had a significant bearing on the way that INZ will approach issuing resident visas generally and more specifically in relation to these investment-based applications. These investor products are the main non-family related offshore residence applications that have remained open for business during the period since New Zealand closed its borders. In that time hundreds of applications have been made, with the vast majority in a holding pattern of uncertainty for many months now.
The result of the Afghan Nationals case has been to split applicants for residence visas into three cohorts:
- Those who had their applications accepted for processing on or before 19 March 2020;
- Those who had their applications accepted for processing between 20 March 2020 and 7 December 2021;
- Those who had their applications accepted for processing on or after 8 December 2021.
The positions in relation to the first and third cohorts are relatively clear, but more complicated for those in the middle cohort.
Applicants who lodged on or before 19 March 2020
The Afghan Nationals case found that the New Zealand Government had acted unlawfully in preventing individuals from entering New Zealand who either held resident visas allowing entry or applied for those before the initial lockdown on or before 19 March 2020. Essentially, the decision was that if the border was open for entry at the time the application was made, then that applicant is entitled to rely on that position. Since the border was only closed on 19 March 2020, it followed that applications accepted for processing prior to that date were entitled to rely on the open border position and should be permitted to enter. The Minister’s announcements on 8 December 2021 confirmed INZ would comply with this ruling, meaning that if you have secured a resident visa under any of the categories above for an application that was lodged on or before 19 March 2020 (many of you will have extended resident visas valid until 11 September 2022), you are able to enter at any time if you secure a MIQ voucher.
Yesterday’s announcements make this news even more palatable: if you are in Australia you can now enter free of MIQ from 27 February and for the rest of the world from 13 March.
Applicants who lodged after 8 December 2021
The Afghan Nationals case set a precedent in relation to the governing law that applied when an application was made, being timing of filing determines as to whether or not a resident visa can be issued and entry permitted into the country under that visa. Following that case, the Minister of Immigration made an announcement on 8 December stating that for applications moving forward, they could expect to be issued with residence and be permitted entry. Accordingly, it seems clear that any applications lodged after 8 December 2021 should expect to have their applications processed and the residence visa issued to permit immediate entry.
Applicants who lodged between 20 March 2020 and 7 December 2021 (the “lockdown period”)
There is a significant cohort of applicants who have active applications under assessment that were lodged during this lockdown period. For these applicants the processing approach of INZ and precise entry timing is a little more complicated. These applicants will include those who have elected to place the application “on hold” pre Approval in Principle (AIP) stage, applicants at AIP stage and those applicants who have completed investments and are awaiting assessment of the “transfer and investment” stage with INZ to have their application finalised. What is clear is that INZ is still rather unclear what will happen next for these applicants.
Before the issue of entry can be considered, the issue of visa processing (to get to the point of residence being issued) is most relevant. The below are the latest timeframes and related entry processes dictated by timing, for Investor 1, 2 and Parent Retirement Category applications as advised to us by INZ. Note also we have recently been advised that INZ stopped priority processing for applications where the applicant is onshore, and are simply moving through applications based on the date they were received, irrespective of where the applicant is based.
- Applications lodged on or before 19 March 2020 – INZ can process, decide and issue resident visas which will be valid for entry anytime
- Applications lodged after 8 December 2021 – INZ can process, decide and issue resident visas for entry any time from grant of residence
- Applications lodged from 20 March 2020 to 8 December 2021 (inclusive):
- If onshore – INZ can process, decide and issue resident visas for re-entry
- If offshore – INZ can process, decide, but not finalise (i.e. a resident visa cannot be issued)
The confirmation received from INZ yesterday in relation to these timing cohorts came as a bit of a shock, particularly for the offshore based applicants who filed during the “lockdown period” who can have their applications reach AIP stage and can complete investments, however they still cannot be issued resident visas to enter the country.
There are two explanations for this outcome for this cohort. First, the caselaw is being followed and respected, but the Minister has not yet become aware of this nuance (being the effective suspension of the application once it reaches the point of residence being granted) and once he becomes aware, he will move to cancel this anomaly and also allow resident visas to be issued post transfer and investment reporting.
Second, and perhaps a cynical view, the Minister is aware of this anomaly although has chosen not to change the law at this point in time due to a desire to restrict and control the border entry cohorts moving through the 5-Stage border opening process.
As our article outlined yesterday, appearances are deceiving. The actual volume of non-New Zealand citizen/resident entrants under the first three Steps of the 5-Step border opening plan are likely to be minimal in our view and staggered in line with INZ’s capacity to process and issue the resident visas. If one were to adopt a cynical approach it could be assumed that the Minister has respected caselaw, but has decided not to intervene in relation to this larger cohort of investors, until perhaps there is greater comfort in relation to increased numbers of individuals travelling through the closed border under the new framework.
We are assuming the former is the reason and will be lobbying the Minister through our various connections to firstly make the Minister aware of this anomaly, and secondly state a case for a change and consistent processing of these investment products.
Next steps for those who filed during the lockdown period
If you are in a position where you have filed in the “lockdown period”, the question really is where to from here if you wish to travel into the country before July (if from a visa waiver county like the USA) or before October (if from a non-visa waiver country like China).
There are two considerations here. First, for those who are intent on travelling to New Zealand as soon as possible, there is an ability to withdraw your first application, re-file a second application with basic paperwork (by negotiation) and have that new application join the post 08 December queue to allow the issue of residency visas. This is done by negotiation with INZ and if a pragmatic approach is taken by INZ it can allow applications to be withdrawn, filed for a second time and approved within a short period of time.
Second, if you wish to wait it out and we assume the Minister does not move on this in the interim, hope that investor applicants under the “lockdown cohort” are considered “priority travellers” under Step 3 of the 5-Stage border opening and therefore will be able to enter the country from 12 April 2022 to then allow the grant of a resident visa while onshore (post investment completion).
There is of course significant uncertainty in relation to these developments and we are sure a fair bit of complex border decision making in relation to managing the burden of additional New Zealand citizens returning en masse, together with an Omicron wave at the same time. No doubt more to follow on this once we discover more. Hopefully we have something more positive to report as INZ are made aware of this anomaly with the hope the Minister moves to address this inequitable position.
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