REGULATORY IMPACT STATEMENT - IMMIGRATION ACT: VISAS

REGULATORY IMPACT STATEMENT – IMMIGRATION ACT:
VISAS

Statement of the Public Policy Objective
To establish a visa system that is more simple and transparent, and provides for
more flexible levels of scrutiny and control.

Statement of Feasible Options

One non­citizen, one visa
Status quo, Policy Problem and Magnitude: The current visa and permit
framework allows more than one non­citizen to be included on a visa or permit,
for example in the case of a parent travelling with children who are added to the
parent’s passport. This approach is being abandoned by most jurisdictions. With
more children being granted their own passports, there will be an increase in the
need to grant visas to children in their own right. Non­citizen parents and children
are already granted different visas in one passport where, for example, the
parent has a work visa but the school age children have student visas.

Preferred Option: It is proposed that only one visa may be held by a non­citizen
at a time, and that each visa may be granted only to one non­citizen.

Net Benefit of the Proposal: This proposal will reinforce the clarity of individual
immigration status for non­citizens. The proposal would not increase the visa
application fees, because these currently include provision for family group
applications. Clarity of immigration status will also benefit third parties that
engage with non­citizens.

Validity and expiry of visas
Status quo, Policy Problem and Magnitude: Visas and permits may currently
be made valid for a period of time. If a non­citizen is applying for permission to
stay in New Zealand for a specific purpose that has no fixed end date, an
estimated end date is applied to their permit. This does not give the flexibility to
link the expiry of their permit to the completion of the purpose, and requires a
further application if a longer stay is required.

Preferred Option: It is proposed that visa validity periods could be tied to the
duration of a specific event or purpose. For example, a stay could be permitted
for the completion of specified business consultations, plus seven days. The non­
citizen in this example could remain until the consultations were complete without
the need to apply for a further visa. This approach could not be implemented
immediately, but would be available if provided for by future systems.

Net Benefit of the Proposal: If implemented at a future date, this proposal
could facilitate the entry of non­citizens who were considered to be at low risk of
breaching their visa conditions and where the event or purpose was sufficiently
well defined to provide absolute clarity of immigration status. It would benefit the
non­citizen and the Department of Labour (the Department) by enabling reduced

                                                                                       1

interaction. It could reduce the need for additional visa applications to cover a
need for an extended stay in some cases.

Grant of New Zealand citizenship to cancel visas
Status quo, Policy Problem and Magnitude: The Immigration Act 1987 (the
1987 Act) is silent on the effect that the grant of citizenship has on visas, permits
and exemptions, and this has been the subject of some debate.

Preferred option: It is proposed that the grant of New Zealand citizenship
cancels any visa held.

Net Benefit of the Proposal: It is consistent with citizens’ rights to be in New
Zealand that they do not hold visas, which are designed to manage non­citizens.
This review provides an opportunity to clarify the legal distinction between the
status of citizens and non­citizens. This proposal would not affect the ability of
New Zealanders to hold another nationality or to travel on non­New Zealand
passports.

Form in which visas are granted
Status quo, Policy Problem and Magnitude: The 1987 Act provides for visas
and permits to be granted in an electronic form or endorsed in a passport. Both
options are currently used, but these provisions may not cover the possible future
technologies for communicating, recording and checking visa conditions. It is
essential that whichever form is used allows non­citizens to know the conditions
of their visas.

Alternative Option 1: It would be possible to specify in the Bill the various
forms in which a visa could be granted. These would be based on those used
currently and those that could be realistically predicted as coming into use. This
approach would, however, require legislative amendment for any unanticipated
technology to be used.

Preferred Option: It is proposed that the Bill establish that a visa is a record
held by the Department in a manner prescribed by Immigration Instructions.
Non­citizens would be given evidence of their visa in a format specified in
Immigration Instructions. This format could vary.

Net Benefit of the Proposal: Establishing a visa as a departmental record
allows the types of evidence of the visa to be varied according to circumstances.
This could benefit the Department by reducing administrative requirements in
some cases, for example, where advice of a new visa extending a stay in New
Zealand could be given by email or text rather than requiring a passport to be
submitted for a visa to be endorsed in it. This would also be of benefit to a non­
citizen, who could reduce their engagement with the Department.

There might also be instances where particular types of visa, for example
permanent resident visas, were to be granted in a form that carried extra security
features because of the very high value of the document. This would benefit the
government and the Department in assisting to maintain the integrity of the

                                                                                     2

immigration system. It would benefit non­citizens through ensuring that their
personal visas would be less likely to be used to commit immigration fraud.

Visa waivers and current exemptions
Status quo, Policy Problem and Magnitude: Visa and permit exemptions
currently vary the level of pre­entry and immigration border screening for
specified classes of non­citizen. The concept of permit exemptions does not align
well with the proposed visa system, which proposes that all non­citizens must
hold a visa to be in New Zealand. Several current exemptions are established in
the primary statute, which restricts the ability to amend them should this be
required. For example, crew of carriers, such as ships and aeroplanes are exempt
from temporary permit requirements in certain circumstances in the legislation.

Preferred Option: It is proposed that exemptions from the requirement to hold
a visa to travel to New Zealand continue to be given effect by regulations. There
would be no exemptions from the requirement to hold a visa to be in New
Zealand. For non­citizens not required to hold a visa to travel to New Zealand,
visas permitting a stay could be granted on arrival and could be deemed to be
granted in situations specified in regulations or Immigration Instructions.
Regulations could be used for the more enduring or important exemptions or
where there was a high expectation that entry permission would be granted. The
prime example is ensuring that the terms of entry for Australian citizens are not
substantively changed. The deeming process would allow visas to be granted to
allow entry with minimal or no active immigration interaction in low risk border
crossings.

Net Benefit of the Proposal: This proposal contributes to the establishment of
a universal visa system that covers all authorities of non­citizens to stay in New
Zealand. It would allow the effect of current exemptions to continue without any
actual increase in the current levels of immigration documentation and
assessment, unless there were specific policy decisions requiring change made by
Cabinet.

A universal visa system benefits non­citizens by clarifying the requirements of
lawful travel to, entry and stay in New Zealand. In turn, this is of benefit to the
Department in their management of non­citizens, and the government in
exercising their sovereign right to control the immigration system.
Creating flexibility in the system means that the operational effect of the current
system of visas, permits and exemptions will vary little from the status quo as
most travel to and entry into New Zealand involves pre­boarding advance
passenger screening, the completion of an arrival card, assessment at the border
primary line, the grant of permission to enter, and the recording on government
systems of all these transactions

Visa types: permanent residents and residents
Status quo, Policy Problem and Magnitude: The 1987 Act does not establish
a status of permanent resident, even though this term is in wide usage. The 1987
Act provides for:

                                                                                    3

·   residence visas: which allow a first journey to New Zealand by a non­
       citizen approved for residence overseas,
   ·   residence permits: which allow an indefinite stay in New Zealand but
       which expire on departure, like all permits, and
   ·   returning residents’ visas (RRVs): which entitle the holder to be granted a
       residence permit, and entry permission, on arrival in New Zealand.

RRVs are issued for two years after initial residence approval. Thereafter, the
validity of further RRVs is determined by a policy that assesses commitment to
New Zealand and which allows the grant of RRVs with indefinite validity. The
1987 Act also provides for residence to be made subject to requirements for up to
five years. Failure to meet requirements can lead to the revocation of residence,
and removal. This system does provide legal clarity of status. It does not,
however, provide a readily discernable distinction in status between those non­
citizens whose indefinite stay is still subject to some conditions and those who are
not.

Preferred Option: It is proposed to create two types of status (and
corresponding visas) allowing an indefinite stay in New Zealand: resident and
permanent resident. Resident status would be used to impose conditions during
the early period of residence where this was a policy requirement. The early
period could be varied under different residence categories. It would be possible
for permanent resident status to be granted without a transition through resident
status.

While the resident visa would give an indefinite right to remain, the right of re­
entry could be time limited similar to the status quo under the RRV system. Once
the resident had shown that they met the conditions that applied to them, they
could become a permanent resident. This status would allow indefinite stay
without conditions and an indefinite, multiple entry right of return.

Net Benefit of the Proposal: This proposal need not create any additional
administrative burdens on non­citizens, as the steps from resident to permanent
resident mirror steps that non­citizens take after the grant of residence under
current policy. The proposal essentially provides clearer labels for distinctions that
exist under the 1987 Act. It reinforces the conditional nature of the initial grant of
residence under some immigration policy categories. Permanent resident status is
a statement of a strong mutual commitment between the migrant and New
Zealand.

Visa types: Temporary entrants
Status quo, Policy Problem and Magnitude: The 1987 Act restricts temporary
visas and permits to three classes: work, student, and visitor. The visa/permit
classes do not align with the various policy categories which are numerous and
mean that there are many sets of conditions that might apply, for example, to a
work permit. The name of the work, student and visitor permits are not helpful in
ascertaining the specific conditions applying to the non­citizen.

                                                                                     4

Alternative Option 1: It would be possible to create a visa type for each policy
category. This would mirror the Australian approach and would provide a clearer
indication of the conditions of the visa from its name. This approach could,
however, lead to unnecessary over­complication and constant legislative change
where corrections, updates and tweaks were required.

Preferred Option: It is proposed that, while the main types of visa (work,
student, visitor) are to be maintained once the Bill is in force, it would be possible
to create further types of temporary entrant visa through Immigration
Instructions. These visa types could, for example, assist immigration marketing
through the creation of a visa that reflect policy categories, for example, a long
term business visa for applicants granted a visa under long term business policy.
Specific temporary entrant visa types would also be created to cater for the
transition of the current permit exemptions into the visa framework, for example
a commercial aircrew visa could be created to allow a seven day stay for crew, as
currently provided for.

Net Benefit of the Proposal: The proposal offers a degree of flexibility in
establishing temporary entrant visa types in a way that could assist marketing
and enhance clarity of conditions for non­citizens and third parties (such as
employers). Different types of work visas could be created that more clearly
specified the conditions of work, for example, a seasonal work visa, or a medical
trainee visa could be established.

Visa types: Transit passengers
Status quo, Policy Problem and Magnitude: The 1987 Act allows regulations
valid for up to three years requiring classes of non­citizen to hold a transit visa to
transit through New Zealand. A transit visa allows the genuineness of a non­
citizen’s intention to transit New Zealand to be tested. The risks that can arise
from transit passengers include communications for criminal purposes with
associates in transit areas and non­genuine asylum claims. The statutory three
year limit appears to add little value. The Minister of Immigration (Minister) may
impose a transit visa requirement by a Gazette notice for up to three months,
with regulations required after that period. In principle this allows a transit visa
requirement to be imposed in response to rapidly emerging risks. In fact, the
current legislation allows a transit visa requirement to be effective only when
gazetted, which may be too slow in some cases and little faster than the standard
regulation making process.

Preferred Option: The preferred option is to make it possible for transit visas to
be managed through regulations, without an expiry date. This would not preclude
an expiry date being set if government decided to pre­programme a review. It is
proposed to make a transit visa imposition or suspension effective when made by
the Minister, rather than when gazetted.

Net Benefit of the Proposal: Transit visa requirements have become a
permanent component of immigration risk management. Given that the current
transit visa requirements have been in place without reduction of their extent for
some time, there is no discernable disadvantage to those non­citizens already

                                                                                     5

subject to the requirement from dispensing with the time limit. Any changes to
transit visa requirements would continue to require scrutiny.

The government benefits from this proposal by being able to impose transit visa
requirements to manage risk more quickly than now in emergencies. Any changes
to transit visa requirements by the Minister would be quickly and effectively
publicised.

Declaratory endorsements for New Zealand citizens using foreign
passports
Status quo, Policy Problem and Magnitude: Some New Zealand citizens have
dual or multiple nationalities and travel on the passports of another nationality.
This is currently facilitated by issuing RRVs in New Zealand citizens’ non­New
Zealand passports. While this facilitates the travel of New Zealand citizens,
holding a visa or permit is inconsistent with a New Zealand citizen’s right to be in
New Zealand. It is inconsistent with the proposal that New Zealand citizenship
should cancel any visa held.

Preferred Option: It is preferred to make provision in the Bill for passport
endorsements, electronic records or advice that establish a person’s permission to
travel to or remain in New Zealand. These instruments would not be visas or have
the effect of visas, but would facilitate travel.

Net Benefit of the Proposal: This proposal would benefit New Zealand citizens
by allowing them to travel on the passport of their other nationality. It would
improve the integrity and accuracy of immigration records by allowing New
Zealand citizens crossing the border on a non­New Zealand passport to be
distinguishable from non­citizens.

Visas available in the interim when application lodged for further visa
Status quo, Policy Problem and Magnitude: The 1987 Act makes no specific
provision for temporary permits to be issued to maintain the legal status of a
person whose current permit expires before their application for a new permit is
decided. While applicants are advised to apply for further permits in good time,
application assessment times can sometimes vary through no fault of the
applicant. This can create periods of unlawful stay in New Zealand which may
have an effect on future entry into New Zealand, or travel to other countries.

Preferred Option: It is preferred that a specific provision should allow the grant
of a visa to an applicant for a further visa. The grant would not be automatic, to
guard against abuse, but would be guided by Immigration Instructions on matters
such as the validity period and conditions.

Net Benefit of the Proposal: This proposal will benefit some non­citizens
seeking to extend their temporary stay in New Zealand by allowing them to
remain here lawfully while their further application is being assessed. It could also
improve the accuracy of immigration records by reducing the number of recorded
persons who have overstayed their visa.

                                                                                   6

Where entry permission is decided
Status quo, Policy Problem and Magnitude: The 1987 Act requires non­
citizens to apply for entry permission at, and for these decisions to be made
within Customs Controlled Areas (CCA). These areas are currently adequate for
immigration border processes. The absence of a specific border area under
immigration legislation means, however, that immigration staff do not have a
statutory right of access to the areas where immigration decisions are made.

Alternative Option 1: The option of establishing memoranda of understanding
on staff access was explored. This may have removed any immediate difficulties,
but would not have given the same assurances of access that a statutory
provision would.

Preferred Option: It is proposed that immigration control areas should be
established for immigration border purposes. It is also proposed that
appropriately designated immigration staff should have a statutory right of access
to these areas, subject to any security and control requirements of overlapping
zones, notably those administered by the Aviation Security Service. There would
not, however, be any change to the current boundaries set by the CCAs unless
specific decisions were made. Immigration control areas would not be established
in a way that introduced unnecessary variations with the CCAs and, thereby,
created costs or duplication of services.

Net Benefit of the Proposal: This proposal would allow effective future
immigration processing at the border by creating flexibility to manage it within
immigration control areas. It would confirm the right of access for immigration
staff and thereby improve their ability to do their job.

Regulatory and statutory border requirements
Status quo, Policy Problem and Magnitude: The bulk of the immigration
requirements placed on non­citizens crossing the border are currently imposed by
statute. This restricts the ability to vary these requirements in response to
varying levels of risk. The 1987 Act outlines the passenger documentation and
reporting requirements that apply at boarding and on arrival, including the
obligations on carriers to check specified requirements, submit passenger details
to the approved system of pre­boarding checks, and comply with any boarding
directives.

Preferred Option: It is proposed to establish in statute the requirement to apply
at an immigration control area for entry permission upon arrival. It is also
proposed that a decision to grant entry permission and any associated visa
validity would be final once the non­citizen left the immigration control area, but
amenable to change before then. To maintain control of the immigration control
area, it is proposed that non­citizens must remain in the area until permitted to
leave it. They must also comply with an officer’s reasonable instruction while in
the area. Failing to remain in the area or follow instructions would be offences.
Those who enter New Zealand by evading proper border controls would be
deemed to have had any visa held cancelled by the act of entering improperly
and would be liable for deportation without appeal, like those who are refused

                                                                                   7

entry in an immigration control area. Rights to claim protection would be upheld.
Other immigration border requirements would be set in regulations.

Net Benefit of the Proposal: This proposal ensures that the government has
full control over immigration processing at the border. The fundamental powers
are set in statute to give them full force. Other requirements can be varied
through regulations to strike the correct balance of facilitation and risk
management. The ability to vary the levels of documentation and intervention at
the border for different types of passenger offers the opportunity to further
reduce the requirements for low risk passengers.

Statement of Consultation Undertaken
Stakeholder Consultation: There was strong support in public submission for
the use of the single term “visa” for all travel, entry and stay authorisation
granted to non­citizens, with the need for good communication of changes noted.

The proposal to establish resident status and permanent resident status was not
included in the discussion paper. Relevant submissions included the views that
once “permanent residency” had been obtained, no further visas or permits
should be required for stay or re­entry, and the that the status of the offshore
holders of indefinite validity returning residents’ visas should be protected.

In regard to exemptions and visa waivers, most submissions considered that the
system should continue to allow for exceptions to the standard requirements.
There was strong support for the proposal to grant visas in the interim to
applicants awaiting the outcome of a visa application.

Government Departments/Agencies Consultation: The Ministry of Foreign
Affairs and Trade has requested that the papers clearly set out the implications of
the visa system for Australians. Freedom of movement under the Trans Tasman
Travel Arrangement is a very significant element in New Zealand’s relationship
with Australia. Although it is recommended that Australians, like all non­citizens,
be brought under the proposed visa system, (they are currently exempted from
the requirement to hold a visa or permit), there would be no change in substance
to their present ability to travel freely to and stay indefinitely in New Zealand.

                                                                                    8