The article in The New Zealand Herald on 3 August 2020 involving a married couple, one of whom is an Australian citizen, the other a New Zealand citizen has incorrect information. It is proposed that a petition will be filed with Parliament. Please note that both entry permission rules and residence and temporary visa rules are matters which are controlled by the Minister of Immigration through Cabinet, and are not the subject of statute.
The current rules effective 30 June 2020 allow for entry permission to be granted to the partners, legal guardians etc of any dependent children, or any dependent children of a New Zealand citizen or a New Zealand residence class visa holder (who has been previously in New Zealand) in three sets of circumstances:
- Where the person is travelling with the New Zealand citizen or resident;
- Where the person has been ordinarily resident in New Zealand;
- Where there is a visa based on their relationship to the New Zealand citizen or residence class visa holder.
The article correctly identifies the fact that Australian citizens who come and go will not normally have found the need to apply for a relationship-based visa, and accordingly (iii) will not normally apply. The article suggests that the couple have made enquiries and have been told they cannot exercise the first option where the individual travels to New Zealand “accompanied by” the New Zealand citizen or resident. We do not know who has advised the couple that they are not eligible under the first option. That must be wrong. Immigration lawyers and advisers regularly deal with cases involving misinformation sometimes provided by immigration officers but very often by unqualified advisers at the call centre, who simply do not have the necessary information. The rule is clear and is set out in the Operational Manual. It is numbered Y3.30 for all to see.
However, even if the New Zealand citizen can travel out of the country to meet her husband overseas and to then apply for their entry permission in order to travel back, in a world that is currently ravaged by the coronavirus, we think that the heading of the article that this visa policy is “bizarre” is justified. Obviously however we think it is bizarre for a slightly different reason.
First of course entry permission states that the above three categories of persons “may be granted entry permission.” If the person applies and is not granted permission for whatever reason, they should be given an explanation and it may be necessary to challenge the denial through the immigration system if necessary reaching senior immigration officials or even the Associate Minister of Immigration. In the meantime, the couple would have to remain overseas together and this might not be convenient especially if the New Zealand citizen who has had to go and join their Australian citizen partner overseas has a job in New Zealand.
More importantly, there are parts of the world now that are quite frankly dangerous to be in. In addition, travelling itself is dangerous. There seems to be no reason why a New Zealand citizen in New Zealand cannot sponsor her Australian citizen partner to travel to New Zealand, if they do not already have a relationship-based visa (the third category) and where they are then obliged to use the first category (accompanied travel).
Currently instead, a strict reading of the rule requires that the New Zealand citizen or resident (in spite of the incorrect information they have been given) can travel out, and to then accompany their partner (or dependent child) back to the country.
Currently, Immigration New Zealand COVID-19 rules impact many groups of people in different ways. Given the fact that COVID-19 is on a “rampage,” serious thought should be given on an urgent basis to amending the above rule so that the New Zealand citizen resident partner does not have to travel unsafely around the world to then apply for and collect a partner under the above rule.
Deportations are another area of concern. Currently for example, travel to India, would be extremely dangerous, even arrival at an airport. In my view, all India-bound deportations for example, should be suspended for at least 12 months. If a deportation itself creates a danger for the person, then strong humanitarian grounds exist for at least an extended temporary stay until the coronavirus rampage ceases, or a vaccine becomes available.
Serious consideration should therefore be given to amending the partner-dependent children travel rule and to take away the requirement to travel with the New Zealand citizen or resident altogether (even where, as explained in The New Zealand Herald, genuine couples involving Australian citizens do not have a relationship-based visa). We also are of the view that most deportations should now be suspended. In short, recognition should now be given that offshore travel is itself currently inhumane.
David Ryken is the principal of Ryken and Associates, a law firm that specialises in immigration law and immigration litigation. He is a member of the Immigration and Nationality Committee of the International Bar Association and is a regular commentator on New Zealand’s immigration law and policies.