Simon Graham, Partner, and Austin Lange, Senior Solicitor at Young Hunter Lawyers join Legalwise Insights to explore the ramifications of the Labour proposed, amnesty for overstayers. Simon and Austin explore the impact, if passed, this policy would have to both those who have overstayed their visa, and the immigration landscape as a whole.
Immigration is always a contentious topic in an election year. This year, Labour announced a policy which would grant a residence pathway to overstayers. Under the proposal, overstayers who had resided in New Zealand for 10 years would have the ability to apply for a one-off resident visa. This topic was previously debated by the Green Party’s Chloe Swarbrick and David Seymour of ACT.[1] The Green Party supported an amnesty policy, while National and Act did not.
Opponents of the amnesty policy argue that offering a residence pathway to unlawful persons would incentivise others to deliberately become unlawful. They also tout the policy as being a “slap in the face” to those who follow the rules. It would likely lead to more restrictive temporary visa policies, as people would need to be more highly scrutinised to ensure they don’t overstay their visas.
As immigration practitioners, we regularly deal with clients who are unlawfully in New Zealand. In our experience, people do not usually become unlawful deliberately. The above arguments fail to apprehend the complex and difficult situations in which people can find themselves.
Under the Immigration Act, a person becomes unlawful if they no longer hold a visa. This usually occurs because the visa expires or is cancelled. In many cases, individuals become unlawful due to exploitation, difficulties renewing their visas, criminal offending (either their own, or their partner’s if they are a secondary applicant), or through a lack of understanding about their obligations when renewing their visas.
Access to resources also plays a significant role in persons becoming unlawful. Clients often say that they did not have the ability to seek advice from an advisor or lawyer at the time they were having visa difficulties.
The suggestion that amnesty will give migrants an easy way to gain residence also fails to consider the day-to-day problems that many unlawful people face. Unlawful individuals cannot legally work and do not qualify for social welfare. They are often reliant on being paid “under the table” and are at greater risk of being exploited by employers.
In our view, the key issue is that the pathways by which an unlawful person can regularise their immigration status are few and far between.
Currently, an unlawful person has 42 days from the date they become unlawful to appeal their deportation liability to the Immigration and Protection Tribunal on humanitarian grounds. If the individual is outside of the 42-day timeframe, they lose the ability to appeal unless they can obtain another visa.
A person has limited options if they miss the appeal window. They can apply for a temporary visa under s 61 of the Immigration Act, but this application is subject to the absolute discretion of the decisionmaker. There is no requirement on the decision maker to provide reasons for their decision, or even to consider the request at all. The same is true of the Minister’s power to grant a visa by special direction.
Accordingly, unlawful individuals can fall into a kind of ‘visa purgatory’ where they are outside the 42-day timeframe, but INZ and the Minister will not consider their application.
As a matter of policy, one solution to the issue identified by the amnesty policy would be to allow unlawful people to appeal to the Immigration and Protection Tribunal outside the initial 42-day timeframe. The discretion to allow appeals out of time exists in many other jurisdictions, such as the criminal courts, but not in the immigration context.
Importantly, this change would provide clarity and hope to potential appellants, while not incentivising individuals to become unlawful. Appellants would still need to meet the test in s 207 of the Immigration Act and would bear the onus of establishing their case.
There is always an inherent tension between the state and individual in any immigration debate. In our view, a policy change of this nature would properly balance the integrity of the immigration system with the interests of justice in ensuring that those in need have an opportunity to be heard.
Simon is a partner in our civil and commercial litigation team. He provides advice and representation with respect to all aspects of immigration litigation, including deportation appeals, refugee and protected person appeals, residence appeals, immigration fraud and High Court appeals. In addition, Simon deals with criminal charges and appeals against convictions, employment disputes and prosecutions, health & safety prosecutions, and civil disputes. Connect with Simon via LinkedIn.
Austin is a Senior Solicitor in Young Hunter’s litigation and dispute resolution team. His key area of focus is immigration litigation, and he regularly advises on refugee, deportation, and criminal matters. Despite only joining Young Hunter in 2020, Austin frequently appears before the Immigration and Protection Tribunal and District Court in immigration and criminal cases. Recently, he appeared in the Supreme Court on a discharge without conviction case based on immigration consequences. He also presents to stakeholders and other lawyers on immigration matters. Outside the office, Austin regularly volunteers with Community Law Canterbury and runs immigration clinics with the Citizens Advice Bureau. Connect with Austin via LinkedIn.
1] A link to the original article can be found here: https://www.newshub.co.nz/home/politics/2023/05/green-party-mp-chl-e-swarbrick-slams-dawn-raid-style-tactics-says-there-should-be-pathway-to-residency-for-overstayers.html
