Immigration (COVID-19 Response) Amendment Bill

  • enacted

Immigration (COVID-19 Response) Amendment Bill

Government Bill

243—1

Explanatory note

General policy statement

The Immigration Act 2009 (the Act) is predicated on individual applications managed on an individual basis. The Act, as currently drafted, has very limited ability to deal with applicants as a class or group of individuals. In emergency situations, this creates challenges, and constrains the Government’s ability to respond flexibly, where, for example, large numbers of visas need to be changed or extended at once.

The Act already envisages that an outbreak would create challenges, and has a small number of emergency provisions which can be triggered once the Prime Minister has issued an epidemic notice and epidemic management notice. Valid visas held by people in New Zealand which would otherwise be due to expire are automatically extended so they will expire 3 months after the day on which the epidemic management notice expires, and adjustments can be made to detention on immigration grounds. These emergency epidemic management settings were, however, introduced in 2006 when New Zealand had much lower numbers of temporary migrants. The Act has now been demonstrated to not be fit-for-purpose to respond to the pressing practical challenges introduced by the COVID-19 outbreak.

The New Zealand immigration system is facing the unprecedented challenge of managing a large number of migrants who practically are unable to leave New Zealand due to the COVID-19 outbreak. Ordinarily, temporary migrants are required to submit individual applications for a new visa or to vary its conditions where circumstances change and, for example, they need to be redeployed by their employer into a different role or a different region, or seek another job after being made redundant. Applications are also ordinarily subject to regulatory requirements which include the provision of fees, passport photos, and travel documents. At a time when the Government needs to be as flexible and efficient as possible, waiving requirements on an individual basis is not practicable, and individually processing thousands of applications at once is time-consuming and expensive, and provides little certainty for affected applicants.

This Bill aims to ensure that the Government can respond appropriately and efficiently to the COVID-19 outbreak by providing additional flexibility in the immigration system. It does so by introducing 8 time-limited powers, as follows:

  • the power to vary or cancel conditions for classes of resident class visa holders:

  • the power to impose, vary, or cancel conditions for classes of temporary entry class visa holders:

  • the power to waive any regulatory requirements for certain classes of applications:

  • the power to grant visas to individuals and classes of people in the absence of an application:

  • the power to extend the expiry dates of visas for classes of people:

  • the power to waive the requirement to obtain a transit visa in an individual case:

  • the power to revoke the entry permission of a person who has been deemed by regulations to hold a visa and to have been granted entry permission:

  • the power to suspend the ability of classes of people to make applications for visas or submit expressions of interest in applying for visas.

These powers will enable the Government to amend visa conditions for large groups of people, extend visas of large groups of people for varying periods of time (enabling processing to be staggered), stop people overseas from making applications while it is not possible to travel to New Zealand due to border restrictions, and refuse entry to certain people with deemed entry permission to prevent them from entering New Zealand while border restrictions are in place.

These powers are wide-reaching; they could potentially affect large numbers of people. The Bill recognises this and accordingly subjects these powers to a range of safeguards. The majority need to be exercised by special direction, and one (the ability to suspend applications) requires an Order in Council. The majority can only be used to manage the effects or consequences of:

  • measures taken under the Immigration Act or any other enactment to contain or mitigate the outbreak of COVID-19 or its effects, or

  • any other measures (whether in New Zealand or elsewhere) to contain or mitigate the outbreak of COVID-19 or its effects.

Some can only be exercised by the Minister of Immigration. All the powers are also time-limited and will be automatically repealed 1 year after entering into force.

Departmental disclosure statement

The Ministry of Business, Innovation, and Employment is required to prepare a disclosure statement to assist with the scrutiny of this Bill. The disclosure statement provides access to information about the policy development of the Bill and identifies any significant or unusual legislative features of the Bill.

Regulatory impact assessment

The Treasury has determined that this is a direct COVID-19 response and has suspended the RIA requirements (in accordance with CAB-20-MIN-0138).

Clause by clause analysis

Clause 1 is the Title clause.

Clause 2 provides that the Bill comes into force on the day after the date on which it receives the Royal assent. The amendments made by the Bill will be repealed 12 months after the Bill comes into force. Each of the amendments has a provision to this effect.

Clause 3 provides that the Bill amends the Immigration Act 2009 (the principal Act).

Part 1Amendments to principal Act

Clause 4 inserts new section 11A, which introduces a schedule of transitional, savings, and related provisions.

Clause 5 amends section 50 of the principal Act by inserting new subsections (4A) to (4E). New subsections (4A) to (4C) give the Minister under the principal Act, currently the Minister of Immigration, a new special direction power for use in dealing with the effects of measures taken, under the principal Act or otherwise, in relation to COVID-19. The power enables employment and travel conditions of resident visas to be amended by the Minister for classes of visa holders, rather than needing to be amended separately for each individual visa holder. Criteria that can be used to define a class include visa holders’ nationality, their immigration documentation, and the type of resident visa involved. New subsection (4D) provides for special directions under the new power to be published on the Internet and scrutinised by Parliament.

Clauses 6 and 7 amend sections 52 and 53 of the principal Act. Like clause 5, these clauses confer powers on the Minister to deal with visa holders by class when managing the effects of measures related to COVID-19. The powers enable the Minister to alter the conditions of temporary entry class visas by special direction. Again, the factors that can be used to define classes include nationality, immigration documentation, and the type of visa involved. New subsection (4D) in each of sections 52 and 53 provides for the special directions to be published on the Internet and scrutinised by Parliament.

Clause 8 inserts new subsections (3) to (7) in section 57 of the principal Act. The new subsections enable the Minister to make special directions waiving the usual visa application requirements for classes of applicants in consequence of the COVID-19 outbreak. New subsection (5) sets out examples of how the classes of applicants may be delineated, including by nationality and type of visa. New subsection (6) provides for publication and scrutiny of the special directions.

Clause 9 inserts new section 61A, which relates to the grant of visas by special direction. Under subsection (1) of the new section, the Minister may grant a visa to someone outside New Zealand, or someone in New Zealand on a temporary entry class visa, even if the person has not made an application. Subsection (2) enables the Minister to do the same for classes of people where (broadly speaking) the Minister considers it necessary or desirable to help manage the consequences of COVID-19-related measures. Subsection (5) lists ways in which the classes could be defined, while subsection (6) deals with publication and scrutiny by Parliament. New section 61A could be used to grant visas to severely unwell visitors who are unable to leave New Zealand but too ill to complete a visa application.

Clause 10 makes a small change to section 78 of the principal Act (deemed extension of temporary entry class visa expiring during epidemic) in connection with clause 11.

Clause 11 inserts new section 78A into the principal Act. This new section enables the Minister to make special directions extending temporary entry class visas by up to 6 months for classes of visa holders. The new power may only be exercised if the Minister is satisfied that it is necessary or desirable to manage COVID-19-related measures or effects. Subsection (5) provides that classes of visa holders can be defined by reference to similar matters to those for other special direction powers in the Bill (see subsection (5)). Subsection (6) requires special directions given under new section 78A to be published and made available to Parliament for scrutiny.

Clause 12 amends section 86 of the principal Act to allow the Minister to waive the requirement, in an individual case, to obtain a transit visa before transiting through New Zealand. The Minister may also suspend a transit visa waiver in an individual case. Again, the power is exercisable by special direction and may only be used to help manage the effects of measures related to COVID-19.

Clause 13 inserts new section 113A into the principal Act. New section 113A applies if a person’s entry permission is deemed to be granted under regulations made under the principal Act. At present these regulations are in the Immigration (Visa, Entry Permission, and Related Matters) Regulations 2010. New section 113A(2) provides that an immigration officer may revoke the entry permission if permitted or required by, and only in accordance with, immigration instructions made under the principal Act. New section 113A(4) and (5) specify the time within which the entry permission may be revoked. New section 113A(7) provides that immigration instructions certified under section 22(1)(b) may provide for the revocation of entry permission that is deemed to have been granted under regulations made under this Act.

Clause 14 amends section 378 of the principal Act, which relates to special directions. The effect of the amendments is that any special direction under one of the new special direction powers must be given in writing if it relates to a class of people rather than an individual.

Clause 15 amends section 380 of the principal Act (delegation of Minister’s powers). The amendments prevent the delegation of any of the new ministerial special direction powers that relate to classes of people.

Clause 16 inserts new sections 401A and 401B into the principal Act. New section 401A authorises regulations to be made suspending the ability of all persons or any class of persons to—

  • apply for a particular class or type of visa; or

  • submit an expression of interest in obtaining an invitation to apply for a particular class or type of visa.

New section 401A(4) provides that the Minister must not recommend the making of the regulations unless satisfied that doing so is necessary or desirable to manage the effects, or deal with the consequences, of—

  • measures taken under the principal Act or any other enactment to contain or mitigate the outbreak of COVID-19 or its effects; or

  • any other measures (whether in New Zealand or elsewhere) to contain or mitigate the outbreak of COVID-19 or its effects.

A suspension may be for up to 3 months at a time.

New section 401B provides that if regulations are made for the purposes in new section 401A, the relevant applications must not be made and the relevant expressions of interest must not be submitted.

Clause 17 inserts new Schedule 1AA into the principal Act (transitional, savings, and related provisions).

Part 2Provisions of principal Act to be read as modified

Clause 18 inserts new section 403B into the principal Act. New section 403B introduces a schedule of minor modifications of the principal Act that are consequential on the amendments made to the Act in Part 1 of the Bill. Clause 19 inserts that new schedule into the principal Act as new Schedule 6.