In the 3rd and final part of his Immigration series, Harris Gu, Solicitor at Queen City Law discusses the politicisation of National Security Check. Follow the series here.
Introduction
On 30 September 2021, the 2021 resident visa (“RV21”) was announced by the then Minister of Immigration Kris Faafoi, for those ‘who have been long disrupted by COVID-19’. The purpose is that businesses will ‘have the certainty they need to plan into the future and continue driving the economic recovery’. [1]
RV21 is a one-off simplified residence pathway for migrants in New Zealand (“NZ”). Initially, the Government anticipated issuing up to 165,000 resident visas; in reality, Immigration New Zealand (“INZ”) received applications from 214,348 applicants. [2]
Since the visa category opened 12 months ago on 01 December 2021, only 56% of the applicants have received a resident visa despite the so-called simplified pathway to residence. Inevitably, the slow processing of RV21 is not helping with the economic recovery.
This then begs the question of why? The simple answer is that National Security Check (“NSC”) got in the way.
This article will discuss why the author believes the Government is politicising the NSC in order to control Immigration indirectly.
What is NSC?
Unlike other terms, there is no proper definition of NSC. This mainstream media, however, accurately defines NSC: [3]
National security checks are carried out by the country’s security intelligence service. As part of the check, visa applicants provide information about their full work and study history, as well as any involvement they have had with military and intelligence organisations.
Why NSC?
It is a million-dollar question because no one has been able to find out why.
General Manager of INZ provided a vague answer to the media: [4]
“These checks may be required for a range of reasons, and the time it takes to complete a NSC varies depending on the applicant and their circumstances,”
When asked the criteria that would trigger NSC, INZ did not provide the answer, and quoted Section 6A of the Official Information Act 1982 (“OIA”):
Immigration New Zealand said it couldn’t give further details about national security checks. It cited section 6A of the Official Information Act that said the information could be withheld if it was likely to prejudice New Zealand’s security, defence, or international relations.
Media also attempted to obtain the list of countries that required NSC, but to no avail.
How long will NSC take?
INZ advised that the timeframe is 6 months, and this applies to RV21 applications. [5]
Counsel believes this is not the case. Counsel observes that the timeframe would well exceed 9 months.
NSC timeframe different by visa category
INZ has confirmed that NSC is even required to be conducted on temporary visa applicants. But unlike NSC for RV21, NSC for temporary visa categories are completed within a few weeks’ time.
Unfortunately, INZ invokes Section 6A of OIA to justify its decision to release no further details on this.
Ombudsman complaint
Counsel had in February this year complained to the Office of the Ombudsman over INZ’s decision not to release details on NSC. Counsel can disclose that the Chief Ombudsman is engaging with INZ in relation to the complaint and hopefully can shed some light in the near future.
Is NSC even legal?
Counsel also questions the legality of conducting NSC in relation to a visa application. There is no mention of NSC in the Immigration Legislation. There is also no direct mention of NSC in the Immigration Instructions.
The only Instruction that may be relevant is A5.1, stipulating that ‘Applicants for all visas must not pose a potential security risk’. However, if INZ is to conduct NSC in reliance of A5.1, it would have been conducted on the premise of certain groups of applicants already posing a potential security risk to NZ. This may be the case for particular individual applicants, but INZ is conducting NSC on a mass scale based on applicants’ nationality. NSC is standard procedure and there appears to be no actual assessment of applicants’ circumstances before NSC is conducted.
Unfortunately, this would mean that INZ has the guilty-before-proven-innocence attitude, which is dangerous because it defeats the Rule of Law.
The politicisation of NSC to control immigration
21RV is one of the poorly planned and executed visa categories, the other one is the Accredited Employer Work Visa (‘AEWV”). Counsel has discussed AEWV in Part 2 of this Immigration Series.
Similar to AEWV, all RV21 applications were submitted via a so-called ‘Enhanced’ online system – Advanced Digital Employer-led Processing and Targeting (“ADEPT”), which is a flawed system that cost NZD 56 million to build but went through zero public consultation. Further, as of 01 Nov 2022, there have been a total of 554 production defects or bugs. Of these, only 354 have been resolved or closed.
Counsel believes ADEPT was not designed to be flexible. When it comes to RV21 applications, INZ cannot request an NSC until after the following steps are completed:
- Completion of applicants’ NZ police check – Approx. 3 – 6 months
- Clearance of medicals – Approx. 1 – 6 months depending on whether applicants have any underlying health issues
So by the time NSC is requested, RV21 applicants would have to have waited up to 12 months. In addition to 6 months timeframe for NSC, the total time adds up to 18 months. This corresponds with INZ’s statement ‘It is expected the majority of applications will be processed within 18 months’. [6]
So there we have it, the queue for a 21RV application to be allocated to a case officer could be 18 months.
Counsel believes that the Government is deliberately slowing down the processing of a rather simple resident visa application process, by politicising NSC to control immigration largely due to these factors:
- That the actual number of applicants for RV21 is almost 50,000 higher than anticipated – This group of applicants could be redundant to driving the economic recovery;
- That a large portion of the 214,348 RV21 applicants are not, in fact, workforce – To qualify for a RV21, one does not need to be working; they qualify as long as they firsted in NZ before or on 29 September 2019, and have been in NZ for at least 821 days between 29 September 2018 and 29 September 2021; [7]
- The Government has since introduced a new pathway to residency, to ‘help relive workforce shortage’, [8] despite the previous belief that RV21 will ‘have the certainty they need to plan into the future and continue driving the economic recovery’.
- The Government can hide behind the protection of S6A of OIA, and it is time-consuming for the watchdog (the Ombudsman) to determine whether or not their decision is justified.
Prior to joining Queen City Law, Harris used to work for a former Minister of Immigration as a licensed immigration adviser for 7 years. Harris has extensive experience in dealing with all types of visa applications, as well as appeals to the Immigration & Protection Tribunal (IPT), Section 61 requests, Ministerial special directions & Ombudsman complaints. Harris obtained his LLB and BCom degrees from the University of Auckland and was admitted to the High Court of New Zealand in October 2021. Harris is pleased to have joined Queen City Law’s large award winning Immigration Law team. Harris speaks fluent Mandarin. Harris currently serving on the Auckland District Law Society (“ADLS”) Immigration & Refugee Law Committee. https://adls.org.nz/Chapter?Action=Members&Chapter_id=12. Connect with Harris via LinkedIn
[1] Beehive release: One-off residence pathway provides certainty to migrants and business
[2] Total number of 2021 Resident Visa applications
[3] Security check sees some residency applications delayed
[4] Ibid.
[5] Ibid.
[6] Ibid, 2.
[7] Immigration Instruction S6.15.1(a)
[8] Beehive release: Government steps up action to plug skills gaps
