The Covid-19 pandemic is causing widespread disruption to international travel. Therefore, migrant workers and their families, as well as their employers, face significant uncertainty.
Migrants who face redundancy or whose hours of work are reduced
A work visa is usually conditional upon the continuation of the stipulated employment, and also on the basis of working at least 30 hours a week. Therefore, if employment is terminated or weekly hours reduced below 30, then the migrant worker will be in breach of his or her visa. Furthermore, he or she will be unable to successfully continue with any residence application, under the Skilled Migrant Category.
Immigration New Zealand may issue a migrant worker, who is working reduced hours or whose employment has been terminated, with a Deportation Liability Notice. The migrant then has 14 days to give good reason why deportation should not occur, and then a further 14 days in which to appeal to the Immigration and Protection Tribunal. For an appeal to be successful, the migrant must show that there are exceptional circumstances, of a humanitarian nature, that would make it unjust or unduly harsh for deportation to proceed and also that it would not be contrary to the public interest to allow him or her to stay.
The Immigration and Protection Tribunal has not yet considered Covid-19 cases. However, if a migrant worker cannot physically travel, due to travel bans or the lack of viable airline routes, then an appeal may be successful, particularly if he or she is an essential worker, such as a caregiver in the aged care sector. However, an appeal could take some time to consider, and during that time, the migrant would be unable to lawfully work. Also, of course, if the appeal is unsuccessful, there may be practical difficulties in deporting a migrant worker, due to the same travel bans and closure of international routes.
The best assistance an employer can provide to a migrant worker, whose working hours or employment is at risk, is early notification of the potential change. This will enable the worker to look for alternative employment or make arrangements, in good time, to depart from New Zealand through whatever means are available.
Migrants with visas that will soon expire
The New Zealand government has (somewhat belatedly) announced that it will automatically extend all temporary visas that will expire between 2 April and 9 July. The visas will be extended until 25 September. Migrants will receive an email confirming their visa extension.
Migrants whose visas expire on or before 1 April, must apply for further visas online. They will then be issued with interim visas that may or may not allow them to continue to work It is impossible to apply online, for a further visa, if a migrant’s passport will expire within the next three months, and also perhaps, if he or she has had previous visa problems. Therefore, there will be a significant number of migrant workers who are unable to extend their visas, and are not covered by the government’s automatic visa extension.
Of course, it will be practically difficult for Immigration New Zealand to deport workers with expired visas. However, workers without current visas cannot lawfully work. An employer who knowingly permits a migrant to work, without a work visa, can face a fine of $50000. The employer also could be deemed to be a non- compliant employer, which will result in the business being unable to support any other visa applications, including renewals. The migrant worker will also find it difficult to obtain another work visa, in the future.
Therefore, it is important that employees, whose visas expire before 2 April, apply for their new visas, online now. In respect of employees whose visas expire before 9 July, it is important that the employer sights confirmation that their visa has been extended and keeps a copy of this.
“Low-skilled” migrants who cannot renew their visas
“Low-skilled” migrant workers are those whose job matches with a Level Four or Five occupation within the Australian New Zealand Standard Classification of Occupations (ANZSCO). For example, caregivers within the aged care sector.
In August 2017, immigration policy was altered so that “low skilled” migrant workers were only permitted to hold three consecutive 12-month work visas. At the end of the third 12-month visa, a “low-skilled” migrant is required to leave New Zealand for at least 12 months, before being eligible for a further “low skilled” work visa.
This policy means that from August this year, between 1700 and 3000 caregivers, within the aged care sector, will be obliged to depart New Zealand. The need to retain them is obviously very great. Therefore, aged care sector employers have approached the government to request an exemption to this policy, based on Covid-19.
We understand that this has been resolved, but at present we are only aware of the automatic extension of all visas until 25 September, as described above.
The situation is constantly evolving. Migrants are some of our most vulnerable members of society. Therefore, we sincerely hope that the government will release more detailed guidance soon, as information has been scarce so far. Also, we hope that Immigration New Zealand will organise and provide a reasonable service, during the lockdown, as much of their work, could be done remotely. At present, we understand that no visas are being processed and it is extremely difficult for migrants to make contact with Immigration New Zealand.
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