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.