Concerns and Justifications: The Immigration (COVID-19 Response) Amendment Bill
By Andrew O’Malley Shand
Amongst many other significant legal reforms that have occurred in the Covid-19 Era, the Immigration (COVID-19 Response) Amendment Bill has gained prominence in its importance to hundreds of thousands of migrant workers in New Zealand. The bill amended the Immigration Act 2009 to provide tools to the Minister of Immigration, Iain Lees-Galloway, to respond to the thousands of foreign visa holders in New Zealand now facing vast economic and humanitarian uncertainties. The bill was made law on 15 May 2020, barely a week after it was announced.
Soon after the lockdown began, the All of Government Group advised that there were almost 400,000 foreign nationals temporarily in New Zealand.[1] Slightly more than half of this figure were workers, and two-thirds were on working visas with the other third on working holiday visas. Additionally, there are over 70,000 student visa holders and 55,000 visitor visa holders. All visa holders may need to have conditions of their visas altered in this period of economic uncertainty. Already, 80,000 working visas have been automatically extended under the Epidemic Management Notice, to expire on 25 September 2020.[2] The bill provides significant powers to the Minister with few limitations. This is concerning to both employers and migrants, as variations and changes can be made to visas at the Minister’s discretion with no appeal process.
The Previous Act
The Immigration Act 2009 was drafted when New Zealand had less immigration than it does now. In 2008, New Zealand had approximately 10,000 net increase in population due to migration per annum. Statistics for the year ending September 2019 showed that net migration had increased to approximately 55,000 per annum.[3]
Immigration New Zealand has also allowed an increasingly large mound of visa applications to go unattended, with a backlog of 26,000 permanent residency applications in November 2019 compared to only 9,800 in January of the same year.[4] The evident inability to cope with the pre-Covid-19 number of applications casts doubt in INZ’s ability to effectively respond to the approximately 200,000 New Zealand working visa holders under the 2009 Act. This has sparked fears over a ‘wipe-out’ of the backlogged applications, similar to what happened in 2003.[5] From this, two truths can be gauged. First, INZ has failed to address the mounting pile of residency applications; in January 2020 INZ was still responding to applications from December 2018.[6] Secondly, the governing legislation fails to meet the needs of INZ to appropriately respond to residency applications efficiently, leading to the backlog of applications. In 2006, the tools that were being drawn up to deal with applications of and changes to visas could be managed on a case-by-case basis. In 2020, this is evidently no longer feasible.
The Bill
The amendment to the Immigration Act will allow significantly better ability to manage the cases of migrant workers. Covid-19 has raised uncertainty for many migrant workers in New Zealand as their employment is threatened by the change in economic circumstances. If the Government is able to deal with these issues more efficiently then fewer people will fall through the cracks into financial and residential insecurity.
The bill provides that a special direction may classify people by
their nationality
the country or place from which they are travelling
whether or not they hold, or are required to hold, any particular type of travel or immigration documentation, by whomever issued
the type of visa concerned
any other type of visa they have applied for.
The Powers
Eight decision-making powers are included in the bill:
1. the power to vary or cancel conditions for classes of resident visa class holders (clause 5)
2. the power to impose, vary or cancel conditions for classes of temporary entry class visa holders (clauses 6 and 7)
3. the power to waive any regulatory requirements for certain classes of application (clause 8)
4. the power to grant visas to individuals and classes of people in the absence of an application (clause 9)
5. the power to extend the expiry dates of visas for classes of people (clause 11)
6. the power to waive the requirement to obtain a transit visa in an individual case (clause 12)
7. the power to revoke the entry permission of a person who has been deemed by Regulations to hold a visa or to have been granted entry permission (clause 13); and
8. the power to suspend the ability to make applications for visas or submit Expressions of Interest in applying for visas by classes of people (clause 16).
Whose Powers?
The powers that have the potential to affect large swathes of people may only be exercised by the Minister of Immigration himself; those are powers 1, 2, 3, 4 (affecting classes of people), 5, and 8, listed above. Power 4, which affects individuals, alongside powers 6 and 7 are considered ‘administrative in nature’, and therefore can be delegated to an immigration officer. The powers are available for use by the Minister for one year, subject to possibility of revocation at an earlier date.
Safeguards
In a media release, the Government cited a “range of safeguards will be applied, including that these powers expire twelve months after enactment”. A number of the powers introduced by the bill are able to be exercised by the Minister ‘by special direction’. These are safeguarded by the following:
the special directions must be published
they must only be used in response to Covid-19
they are disallowable instruments in most cases
the powers are time-limited and repeal twelve months after they come into force.
In the third reading, Hon. Chris Hipkins discussed how these safeguards form the three threshold hurdles that the Minister must meet before the powers may be exercised:
“Firstly, the exercise of the power must be reasonably necessary. Secondly, the exercise of the power must be related to responding to the effects or the consequences of COVID-19 or measures taken to combat COVID-19, and the Minister may not make a special direction unless they can be satisfied that in doing so they do not materially disadvantage a class of persons who are affected by that power.”
However, this is a subjective and self-regulating check on the Minister’s powers. This issue is noted by Hon. Woodhouse quoting a previous statement by the Government that ‘these powers will be used for good’, which, while likely the intention, does not make for very clear or transparent law — rather, it is law based on trust in the Minister’s ‘absolute discretion’.[7] Furthermore, there are no appeal rights on the exercise of these powers, which threatens the ability of migrants to access justice.
The powers are broadly applicable to most immigration matters, operate at the wide discretion of the Minister of Immigration, and can affect entire classes of immigrants. In Parliament, Hon. Michael Woodhouse noted a widespread concern that the new powers could be broadly applied to a class of persons without any reason given, limiting the accountability of the Minister of Immigration, and that a ‘backstop’ provision on these powers would be appropriate. [8] In Select Committee, a backstop provision was sought that would restrict the Minister’s powers where large numbers of people were negatively affected. A version of this provision has been included in the final legislation: “not materially negatively affected”.
The Act provides no express provisions to assist migrant workers who have lost their jobs and wish to transition into other areas of employment, but are disallowed by their visa conditions. Member Stuart Smith raised this issue during the third reading of the Act. With particular regard to winemaking and horticulture, Mr Smith gave the example of migrant winemakers who no longer have a job as the harvest is over, and may neither be able to work nor return home. Mr Smith noted how the broad powers of the Minister may be exercised to allow, for instance, winemakers to transfer employment into pruning vineyards where there is a current labour shortage.[9] This position was supported by a submission of New Zealand Winegrowers.[10] It is acknowledged that whilst the broad discretionary powers of the Minister may be concerning, there may also be a necessity to address the new, complex and challenging situation for migrants in New Zealand on humanitarian grounds.
It is evident that these powers represent a failure of the existing legislation to effectively respond to the current crisis, or even the pre-Covid-19 level of residency applications. Whilst the bill may be necessary to administrate the thousands of visa holders in New Zealand, it is unfortunate that it has become so. Furthermore, in the attempt to provide broad solutions, the bill has raised many other uncertainties for migrants and diminishes entitlements to justice bestowed upon migrants by the Immigration Act 2009. The Government is asking us to trust that they will do the right thing, that the Minister of Immigration will act fairly and competently, and that we as a nation accept what is likely sub-par legislation for our own good in a time of crisis. There is certainly cause for concern within the legislation, and more issues may arise when the powers begin to be used. What is certain is that when normalcy returns, the relevant legislation will need to be revisited so that New Zealand can account for these issues in the future.
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Featured image source: Will Waters on Unsplash
[1] Michael Neilson “Covid 19 document dump: Government advised migrant worker issues 'low' - now a 'humanitarian crisis'” New Zealand Herald (online ed, New Zealand, 9 May 2020).
[2] “Epidemic Preparedness (Epidemic Management—COVID-19) Notice 2020” (24 March 2020) New Zealand Gazette No 2020-go1369.
[3] Stats NZ “New Zealand net migration rate remains high” (12 November 2019) Stats NZ https://www.stats.govt.nz/news/new-zealand-net-migration-rate-remains-high.
[4] Dileepa Fonseka “Immigration ‘disaster’ waiting to happen” newsroom (online ed, New Zealand, 13 February 2020).
[5] Dileepa Fonseka “Immigration ‘disaster’ waiting to happen” newsroom (online ed, New Zealand, 13 February 2020).
[6] Dileepa Fonseka “Immigration ‘disaster’ waiting to happen” newsroom (online ed, New Zealand, 13 February 2020).
[7] (13 May 2020) 745 NZPD.
[8] (13 May 2020) 745 NZPD.
[9] (13 May 2020) 745 NZPD.
[10] New Zealand Winegrowers “Support for Immigration (COVID-19 response) Amendment Bill proposals to give visa flexibility to international vintage workers in NZ” at [1].