Understanding Compliance Matters for New Zealand
June 15, 2015
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By: Zeenat Afiz
New Zealand immigration continues to face a number of compliance issues that share a common thread. Immigration advice provided by unlicensed individuals, ambiguity surrounding business visitor visas and permissible activities on such visas, and compliance with conditions attached to visas issued by Immigration New Zealand (INZ) are all areas of confusion for travellers and businesses alike.
Unlicensed immigration advice
The rules regarding the provision of immigration advice are clear. The regulatory body for New Zealand licensing, the Immigration Advisers Authority (the Authority), requires an individual to be licensed or to hold a current New Zealand lawyer’s practising certificate from the Law Society, unless they are exempt from doing so, in order to provide tailored immigration advice and submit applications (direct or indirect to Immigration New Zealand) representing applicants. These requirements apply to all advisers, not just to those based in New Zealand, and include in-house human resources personnel, travel desks or other third parties assisting in immigration.
The challenge lies in defining exactly what constitutes immigration advice. Section 7 of the Immigration Advisers Licensing Act 2007 is considered a grey area in this regard. For example, it states that clerical work is permitted, which only confuses matters.
In essence, while anyone can relay publicly available information regarding immigration, tailoring advice specific to a person’s immigration needs constitutes immigration advice and may only be undertaken by a licensed immigration adviser or those listed as exempt under the legislation.
While the Authority is operationally separate from INZ, it nevertheless collaborates with INZ and collects information and data in order to establish trends for unlicensed activity by individuals and firms, whether in New Zealand or elsewhere. There is a range of penalties for such defined offences for both those who provide advice without a licence and those who use unlicensed advisers for matters regarding New Zealand immigration.
For easy reference, the Authority has a publicly available online register of licensed New Zealand immigration advisers worldwide.
Business visitors
Business visas are another grey area which continually cause confusion amongst employers and travellers, and which has resulted in a number of serious repercussions. In some instances, travellers have not been permitted to board flights bound for New Zealand or have been turned around by New Zealand authorities on arrival at the border for not holding an appropriate work visa.
While business visitors from countries under the New Zealand visa waiver arrangement may travel to and enter the country by simply presenting their passport on arrival, travellers without this privilege are required to be in possession of a business visitor visa prior to travel. It should be borne in mind that, in either case, travellers are not allowed to undertake any work during their stay in New Zealand.
If any manner of work is intended while in New Zealand, the duration of the stay is irrelevant and a work visa must be sought prior to arrival. If there is uncertainty around the purpose of travel or if some work may be involved during the traveller’s stay, it is best to err on the side of caution and obtain a work visa prior to travel.
INZ Instructions for business visitors who are not undertaking employment during their time in New Zealand provides:
“Business visitors who are not considered to be undertaking employment (our emphasis added) may be granted a visitor visa, provided that they intend a stay in New Zealand for no longer than 3 months in any one year.
Business visitors who are not considered to be undertaking employment include the following:
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representatives on official trade missions recognised by the New Zealand Government;
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sales representatives of overseas companies in New Zealand for a period or periods no longer than a total of 3 months in any calendar year;
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overseas buyers of New Zealand goods or services for a period or periods no longer than a total of 3 months in any calendar year;
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people undertaking business consultations or negotiations in New Zealand on establishing, expanding, or winding up any business enterprise in New Zealand, or carrying on any business in New Zealand, involving the authorised representatives of any overseas company, body or person for a period or periods no longer than a total of 3 months in any calendar year.
Business visitors who need to be in New Zealand for longer than 3 months in any one year, and all other business visitors, must apply for a work visa.”
Visa conditions
It is imperative that once a visa has been issued by INZ, all conditions attached to the visa are complied with. The three primary conditions normally endorsed on a work visa label are:
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the title of the role being undertaken in New Zealand;
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the name of the employer; and
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the location of the role.
A change to any of the above during the course of the visa requires the approval of a formal variation of conditions application to INZ prior to the visa holder undertaking the change. Without INZ’s prior approval, it would be a breach of the visa conditions, which could attract penalties both for the visa holder and their employer.
To avoid disruption and to limit potential negative impact on the employer, it is best that the specifics of the role be determined at the outset, before an application is lodged with INZ.
Licensed Immigration Adviser No. 201200784
