In May 2020, Parliament passed the Immigration (COVID-19 Response) Amendment Act 2020, which amended the Immigration Act 2009 (the principal Act) by giving the Government 8 time-limited powers to enable the immigration system to respond flexibly to challenges raised by the COVID-19 outbreak. In the order they appear in the principal Act, they are the power to—

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

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

• waive any regulatory requirements for certain classes of application (that is, waive any prescribed requirements to make an application):

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

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

• waive the requirement to obtain a transit visa in an individual case or suspend a transit visa waiver made by regulations in an individual case:

• certify immigration instructions under which an immigration officer may revoke the entry permission of a person who has been deemed by regulations made under the principal Act to have been granted entry permission:

• make regulations suspending the ability to make applications for visas or to submit expressions of interest in applying for visas by classes of people.

These powers 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 staggered processing of further visa applications from those needing to remain in New Zealand), stop people overseas from making applications while it is not possible to travel to New Zealand due to border restrictions, and enable the revocation of entry permission for people with deemed entry permission while border restrictions are in place.

These powers are subject to a range of safeguards, one of which is amended by this Bill. That safeguard is that all powers are automatically repealed 1 year after their commencement. However, while New Zealand’s domestic situation has improved since the introduction of the powers, the global circumstances under which the powers were initially passed still stand—a continued border closure and global pandemic with wide-ranging impacts on temporary visa holders both onshore and offshore. The arguments for continuing to maintain flexibility in control over applications for temporary entry class visas and to maintain an ability to amend visa settings for whole classes of visa holders will remain until border restrictions are lifted.

Part 1 of the Bill (temporary powers relating to visas) extends the repeal date of the powers by a further 2 years, to the close of 15 May 2023. It also amends, to 6 months, the maximum duration of a suspension of the ability of certain offshore persons to make temporary entry class visa applications. Those suspensions are made by regulation, and, at present, can last for a maximum of 3 months at a time. The change is necessary because the suspension period has had to be renewed for a longer period of time than was initially envisaged, and the frequency of renewal is burdensome. In addition, the current suspension period may be giving intending visa applicants the impression that the border will open soon, when that is not the case.

The other major safeguards will continue. First, the majority of the powers need to be exercised by special directions, which are disallowable instruments tabled in the House of Representatives, while one (the ability to suspend applications) requires an Order in Council. Second, the decision maker must be satisfied that the exercise of the power (such as the making of the special direction) is reasonably necessary to manage the effects or deal with the consequences of—

• the outbreak of COVID-19; or

• measures under enactments to contain or mitigate the outbreak of COVID-19 or its effects; or

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

Finally, the majority of the powers can only be exercised to benefit (or at least not disadvantage) visa holders. The major exception to this, the power to suspend the ability of certain offshore persons from making temporary entry class visa applications, has a further safeguard in that the power must be exercised by regulation.

Part 2 of the Bill (modifications of principal Act in connection with temporary powers) extends, to the close of 15 May 2023, the repeal date of a series of modifications made to the principal Act in the light of the temporary powers relating to visas.

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.

http://legislation.govt.nz/disclosure.aspx?type=bill&subtype=government&year=2021&no=24