High Court rules against Immigration

High Court declares refusal to consider offshore residence visa applications unlawful.

In a paper dated 15 July 2020, I pointed out that the suspension of offshore residence visa applications by Immigration New Zealand was unlawful. It offended against a very basic principle, stretching back to the Magna Carta, that once a statutory application is filed it must be considered. There is no provision in the Immigration Act allowing for the suspension of applications.

In a ruling at the High Court in Wellington, Justice Cooke came to the same conclusion in the Afghan Nationals case (22 November 2021), albeit via a different route.

The Court found that the border entry instructions (in the Operational Manual) relating to those who have residence visas is residence policy, and therefore the rules that apply are the rules in existence at the time the residence visa application is lodged. The border entry rules that now exist at the time of proposed border entry, do not apply.

This means that the suspension of residence visa processing because the applicant cannot obtain entry is not correct (as per s 43 of the Immigration Act). Put simply, residence visa applications that were lodged before the COVID-19 entry permission alterations, can now proceed to a decision, whereas those that were filed after, cannot come to a final decision.

The impact of this is important to note. There are believed, by the writer, to be hundreds or possibly several thousand residence visa applications that have been “suspended” by Immigration New Zealand because the applicant is overseas. There is even an internal directive that provides that immigration officers are not to proceed to a final decision. That internal directive is now in conflict with the decision of the Court.

Effectively the decision means that the “theory” that residence visa applications cannot proceed to finality because border entry cannot be achieved is incorrect, so far as existing residence visa applications are concerned (lodged prior to COVID).

In the Afghan Nationals case the Court also found that in their particular case, they could have obtained entry anyway under the humanitarian exception, to post-COVID entry. Immigration New Zealand had interpreted the “humanitarian” border entry exception as requiring humanitarian circumstances involving New Zealanders needing for example humanitarian assistance inside New Zealand. The Court emphatically rejected that interpretation. It was self-evident that the Afghan nationals involved in this case faced imminent danger and that they therefore came within the hypothetical entry permission “humanitarian” exception. For that reason, also, their residence visa applications should progress to a final decision.

The Court ordered that the entry permission applications that determined that the humanitarian exception did not apply, erred in law through a misinterpretation of the meaning of “humanitarian”.

The case is an important case as it will impact significantly on the approach taken to “humanitarian” entry exception decisions.

The decision also by Immigration New Zealand to “suspend” residence processing for residence applications overseas is also significant.

It has been understood that processing is occurring but up to and not including a final decision. Any immigration officer who refuses to proceed to a final decision in our view will now be in breach of the ruling of the High Court, unless at the time that the residence visa application was lodged the entry permission rules prohibited arrival of a residence visa holder on their first trip. Such cases can be processed but then not finalised until entry permission rules change.

Typically, with such matters, the government does not like to be told what to do. Undoubtably an appeal to the Court of Appeal will be lodged. With regard to the Afghan nationals, that could have disastrous results as they are clearly in significant danger. They are Hazara in mortal fear of the Taliban.

Arguably the better approach is for the Government to pick up on its residence visa processes, grant residence visas to those applications that were filed prior to the entry permission rule change, and to allow such applicants first entry (currently subject to quarantine). They will then be part of the total number of residence visa holders and citizens overseas wanting to return.

The Afghan nationals may then in fact also be eligible for special places in the MIQ system given the dangers they face. Other resident visa grantees will fall into the current quarantine requirements, now down to 7 days with self-isolation to follow, until that too is loosened up.

Should the Government decide that it will change either the Immigration Act or the Immigration Instructions, or both, this will amount to a significant intrusion into the Rule of Law as discussed by the Court. The Immigration Act specifically preserves the rules that apply to a residence visa application as the rules that apply at the time of filing. It is one of the cornerstones of our Immigration Act. It provides certainty in that applicants know what the rules are, that will apply to them throughout the process, before they engage in a statutory application. The Court correctly ruled that this is a central precept in our Act.

David Ryken
Ryken and Associates