INTERNATIONAL BAR ASSOCIATION
GLOBAL IMMIGRATION CONFERENCE
30 October – 1 November 2019
NEW ZEALAND’S HALFWAY HOUSE
David Ryken, Principal
New Zealand’s Halfway House
New Zealand does not sell passports or have an investor citizenship program. What it does offer however is quite unique throughout the world. After the establishment of a connection with New Zealand in one of five ways, a person who holds residence (and their dependants) will become permanent residents for life (with no further domicile requirements and no need to live in New Zealand). The golden carriage does not turn into a pumpkin. Except for the investor visas (1 and 2), this is usually achievable within 2 years.
For those who are able to participate in the Investor 1 program and who are subject to certain requirements (to be outlined below) an investor may be only required to spend a total of 88 days in New Zealand over a three year period in order to achieve residence-for-life status. The investment period is 3 years.
Immigration status and citizenship status are processed by two different government departments in New Zealand. Although there is an exception-making power under the Citizenship Act, this is rarely exercised. In 2017 Peter Thiel went straight to citizenship with almost no presence in New Zealand. The Government was severely criticised in the media and it is unlikely that the Minister of Internal Affairs will exercise his “exception-making discretion” in this manner in the future in connection with an “investor”. The power referred to is the power to grant citizenship in special cases under section 9 of the Citizenship Act 1977 (New Zealand). The exercise of this power normally requires exceptional circumstances of a humanitarian or other nature relating to the applicant or where the person would otherwise be stateless. Normally this power is not exercised until a person has first obtained immigration status in New Zealand ie residence. It is occasionally used to ensure resident sportspersons can participate in competitions as New Zealand citizens (the other nature), but who have not had residence for five years, and cannot qualify for citizenship in the ordinary way.
The normal route to citizenship is through presence over a five year period of at least 240 days each year and a total of 1350 days. For those who invest in one of the two investor options however the indefinite residence status is achieved (this applies to all residents) through the grant of permanent residence at the end of the investment period.
Putting aside the rare possibility of an exception on a direct citizenship application, the normal rules for investors are contained within the investor immigration instructions within the Operational Manual, these being the internal instructions and guidelines that immigration officers must follow when considering an application for residence. These rules are enforceable (on appeal to the Immigration and Protection Tribunal and subsequently on a point of law to the High Court of New Zealand) and apply as at the time of filing (even if the rule has changed after an application has been filed).
As the status that is achieved by the end of the investment period is a lifetime status with no further presence or investment requirements (in order to maintain the status), then New Zealand’s permanent permanent residence status is indeed a halfway house; better than the residence package offered in many other countries (some of which lapse where the grantee stays elsewhere), but obviously slightly less than full citizenship (without a passport). As the grant of a residence visa provides full access to medical care, education, welfare and the right to vote, there is little disadvantage when compared with citizenship. Please note that residential property can now only be purchased where there is an intention to be domiciled (investor residence with an intention to only fulfil only the 88 days presence requirement will probably be insufficient).
As indicated above, this “halfway house” can be achieved by investment over a three year period of NZ $10m and 88 days presence, or under the investor 2 category with $2.5m (depending on other factors) and a presence requirement of 438 days over a four year investment period (this category is age restricted at 65 or under and requires English at IELTS 3.0 for the principal applicant and business experience).
The New Zealand government and the opposition parties all, by and large, accept that New Zealand’s immigration program does lead to a large number of persons holding residence but living permanently overseas. Out of a population of almost five million, it is widely believed that there are at least 250,000 residents who live outside of the country permanently. This is widely regarded as providing New Zealand with global inter-connectedness and is, overall, good for the country and an asset.
Apart from the connection that is required in order to transition from being a temporary resident to a permanent permanent resident, the investment can then be withdrawn and in fact the person who holds residence status might not contribute as a taxpayer for many years and yet enjoy the benefits of (supposedly) universal health care, welfare and education, should they or their family fly in. There has never been any adverse media about this program.
The New Zealand “permanent resident” diaspora is well known and well accepted. There is also a citizen diaspora particularly in Australia and in the United Kingdom. It is very unlikely that New Zealand would change its unique approach to the permanency of its final permanent resident status. With a stable legal system, should a future government change these rules, the writer of this paper is of the opinion that a class action could be taken. This is not in fact envisaged and to the writer’s knowledge, there is no discussion inside or outside of official circles to change the “permanency” status of off-shore residents as described above. Moreover the rules allowing permanency while overseas, although in a slightly different format, have been in existence since approximately 1994, ie for more than 25 years.
Briefly, permanency in the other residence categories is achieved through one of the following:
- An investment for two years of $1m (NZD);
- 184 days spent in New Zealand in years one and two (as a temporary resident) or in years two and three;
- Base in New Zealand (a home must be purchased and maintained and the purchase must be in the first twelve months after first arrival);
- Tax resident status for 24 months plus a presence requirement of 41 days each year;
- The establishment of a business for two years in New Zealand and trading successfully for 12 months, the business being a going concern at the time of application.
For investors under Investor 1 or Investor 2, the transition takes a little longer because the investment period is either three years for Investor 1 or, for Investor 2, four years. It is important to note that during those three years, the applicant and his or her dependants (spouse and children who are dependent and who are 24 years of age or under at the time of filing) hold residence and are permitted to live indefinitely in the country (but this status only continues during the investment period). Upon submitting financial documentation confirming that the investment has been maintained for the appropriate investment period, (and the presence requirement has been met by the principal applicant), the temporary residence visa then becomes a permanent permanent residence visa, no matter where they live, or for how long.
Both Investor 1 and 2 (and also the Parent Retirement category, which is also an investment category) allow funds and/or assets to be “nominated,” wherever they are. During the application phase and before any transfer to New Zealand or investment is made, the lawfulness and the ownership of the fund or asset is established. Immigration New Zealand carry out a careful analysis of the proposed funds and their origins. Whether gifted, inherited or earned annually, documentation establishing bona fides must generally be provided, and should be independently verifiable. Although not a full “audit” the processing officer must be satisfied that the funds are lawfully owned by the principal applicant or his or her partner, jointly. It can be seen that due diligence is therefore carried at the application stage and before the funds necessarily arrive in New Zealand. Where funds or assets are already in the country, we still need to trace these funds back to their source, to confirm lawful ownership or earning, and to confirm transfer to New Zealand through the banking system. Tax documentation in the source country is key.
One area for concern is applicants who submit an application from a country that has finance exit restrictions such as the Peoples’ Republic of China or cases involving assets in Iran or other countries where it is not possible to move the proceeds of sale out of the jurisdiction. Applications based on assets or funds that cannot be moved out of the source country through the banking system should not even be filed. It may be unethical to accept fees to do what is later not possible. It may be interesting to note that many PRC advisers are not lawyers.
A breach of the Bank of China’s rules makes the transfer unlawful. For analysis of the appeal tribunal’s latest PRC rulings, please see the writer’s seminar paper of March 2019 on his website (search Library). Using exit quotas of non-close family in contravention to the Bank of China’s rules (which have changed) will lead to a decline. Please note however that there have been several schemes entered into by the Central Bank of China allowing a select number of applicants to bring their money out. There is some concern however with these schemes because one of the requirements written into these programs (Australia has some similar “quotas”) is that the funds return to China at the end of the investment. Essentially this defeats the underlying hope and purpose behind the investor visa, which is to establish an enduring connection with New Zealand. Money in and then out commoditises the resident visa, and the Bank of China re-entry requirement arguably defeats the overall intention of the policy. Investment that creates a long-standing relationship with the investor ideally looks beyond the investment itself (which is why there is a presence requirement). We find in fact that our clients from Europe, the Americas and other parts of the world often invest more than their investor portfolio, usually of shares, equities and bonds, and make local connections which endure.
In May 2017, the Investor 1 and Investor 2 programmes were better enhanced by, in certain circumstances, allowing the presence requirements to be mobile within the investment period (otherwise it is 44 days in years two and three for Investor 1 or 146 days in each of years two, three and four for Investor 2). This “portability” has proven very popular, particularly if first arrival can be included in the day count (this is only possible if the banking institution dealing with the investment will open accounts etc without the need to first travel and meet).
In some circumstances an Investor 1 application can be filed, processed within six to eight weeks, an approval-in-principle issued, funds transferred and invested, investment documents submitted and e-residence visas issued all within three to four months. To this, however, should be added the time it takes to generate supporting documentation, before filing. Investor 2 applications take a lot longer as there is the added issue of establishing, independently, the principal applicant’s business experience. Typically however an Investor 2 application is processed within two to four months (there is currently a slightly longer projected processing time). For both Investor 1 and Investor 2, 12 months are allowed to realise the asset(s), transfer and invest. An extension can be obtained in some circumstances eg where the sale of a house, or shares in a business have been delayed, but there must be a ground for the extension, otherwise the case has be started all over again. Efforts taken to sell the assets will need to be well documented.
New Zealand’s golden Investor 1 program is not well understood. There are currently only about 100 applications a year. At NZ $10m and with a presence of only 88 days and with life-time permanency, it is surprising the visa is not more popular. However there is a robust due diligence programme first carried out by any careful adviser or lawyer preparing such an application, and then by Immigration New Zealand. With our robust anti-money laundering legislation the financial institutions must also carry out their checks. We find that generally the documents provided to INZ will also satisfy the financial institution (though not necessarily). With these checks, however, the Investor 1 category has remained uncontroversial, and this is likely to continue. As some of New Zealand’s Investor 1 and 2 clients go on and make their mark and contribute favourably to our community, it is likely that this type of migration will continue to be welcome.
For better or for worse, New Zealand has a halfway house. Its residence investor programme provides a solution almost as good as investor citizenship without permanent annual presence requirements. It does not provide a passport but it provides residence for life, and hopefully creates valuable connection even where such “residents” continue to base themselves elsewhere.
David Ryken, Principal
Ryken & Associates
PO Box 501