Immigration’s unlawful refusal to consider visa applicatons

Since the return to work at level one at midnight on 9 June 2020, Immigration New Zealand’s officers (at least those working within the territory of New Zealand) have been able to return to work.  It is understood that Immigration New Zealand’s offices in other countries such as China (Beijing) and India (Mumbai) may not yet have been able to return to work, leaving the system as a whole under-manned.

However there continues in force a blanket ban against the processing of all visa applications where the principal applicant is not inside the territory of New Zealand.

It is of course a fundamental legal right to have an application that has been filed in accordance with a statute considered appropriately.  This is a legal right that expands across our whole legal system, and not just applications lodged under the Immigration Act.  This right to have a statutory application considered stretches back to the Magna Carta, as still enforced in New Zealand through the Bill of Rights 1688 (Imp).  The balance between the King (now the Crown or the Government), Parliament and the people, is that where Parliament has passed any statute allowing an “application” to be considered, then it must be considered.  Further, the High Court has considered in a number of cases that where there is an application that has been filed in accordance with a statute then it must be considered within a reasonable amount of time.  In essence, long delays amount to a prohibited suspension.

The ongoing suspension of residence visa applications (where the principal applicant is overseas) is currently therefore in breach of one of New Zealand’s most fundamental legal rights.  Applicants who rely on a process which is set up in a statute such as the Immigration Act are entitled to have their cases considered.  Obviously the suspension of the process of consideration would otherwise take away the law that Parliament has passed allowing the application to be filed and mandating that it be considered in accordance with the criteria set out under the statute and under the rules promulgated by the statute (residence policy etc).

It would be open for a proceeding to commence in my opinion for a High Court declaration that the current refusal to consider current residence visa applications that have been lodged or indeed those that are lodged in the meantime or in the future, to be unlawful and in breach of New Zealand’s fundamental legal obligations.  Although the case was found by the Court of Appeal to not involve a statutory application process, Justice Miller in the Unitec case also found that long delays amount to a breach of section 27 of the New Zealand Bill of Rights Act.

The Bill of Rights Act 1688 (which is still in force in New Zealand) provides: “that the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of Parliament, is illegal.”

The Immigration Act 2009 sets up a second layer of decision-making around entry permission, which of course has been used to protect our border both during lockdown and continuing to the current time.  Currently those who have been granted residence and who have not been to New Zealand previously (unless they are a partner of a New Zealand citizen or resident or the dependent child of a New Zealand citizen or resident) or fulfil one of the other exception criteria, cannot enter because of the entry permission restrictions.  The obligation to accept for filing a residence visa application, to have it processed, and where appropriate to approve it or to decline it (thus enabling an appeal to the Immigration and Protection Tribunal) is a process that Government officials must not suspend.  The Government can still maintain control through the extra layer involving “entry permission.”

Section 43(1) of the Immigration Act establishes that the visa holder has permission to travel to New Zealand and apply for entry permission.  Section 46 establishes that where a person has a visa that does not mean that entry permission is automatic unless the visa is a permanent resident visa or a resident visa granted in New Zealand.  Read together, ss 43 and 46 mean that where a person is granted offshore, entry permission remains a further hurdle which of course has arisen because of Covid-19. 

It is open for the Government to make the grant of all offshore visas subject to the further grant of entry permission, as a condition of the visa.  This would then satisfy the requirements in s 43(1)(b) and (c).  The assumption that the entry permission process prevents the grant of a visa is therefore not correct.

The Government therefore needs to urgently reconsider its position on the “suspension” of residence visa applications where the principal applicant is out of the jurisdiction, for the reason above.  The fact that entry permission will still be required because of Covid-19 related restrictions does not mean a visa application cannot be considered.

Of course there is another aspect to this issue, which is New Zealand’s reputation as a democracy where our laws are adhered to by our Government officials and where applications of all types involving New Zealand governmental bodies or local bodies will be processed in accordance with law, where the process involves a particular statutory process that has been approved by Parliament and which Parliament has not “suspended.”  A democracy calls for compliance in governmental processes by its employees.  A blanket suspension breaches our fundamental laws, as enforced for many centuries.

There needs to therefore be a return to the processing of residence visa applications.

The removal of the suspension in relation to offshore residence visa applications (where the principal applicant is currently offshore) needs to be reconsidered urgently by the Government.  In our view there also needs to be a reconsideration of temporary entry visa applications particularly where those are sponsored by New Zealand businesses and residents (perhaps leaving tourist visas to a later date).  We are now five weeks out from the return to work and accordingly the rule of law should apply.  Currently there is a serious intrusion into the rule of law that needs to be rectified.

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.