REGULATORY IMPACT STATEMENT IMMIGRATION ACT: VISAS

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1 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 non citizen, one visa Status quo, Policy Problem and Magnitude: The current visa and permit framework allows more than one non citizen 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. Non citizen 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 non citizen at a time, and that each visa may be granted only to one non citizen. Net Benefit of the Proposal: This proposal will reinforce the clarity of individual immigration status for non citizens. 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 non citizens. 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 non citizen 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 noncitizen 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 non citizens 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 non citizen and the Department of Labour (the Department) by enabling reduced 1

2 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 non citizens. This review provides an opportunity to clarify the legal distinction between the status of citizens and non citizens. This proposal would not affect the ability of New Zealanders to hold another nationality or to travel on non New 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 non citizens 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. Non citizens 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 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 noncitizen, 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

3 immigration system. It would benefit non citizens 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 pre entry and immigration border screening for specified classes of non citizen. The concept of permit exemptions does not align well with the proposed visa system, which proposes that all non citizens 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 non citizens 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 non citizens 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 non citizens 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 non citizens, 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 pre boarding 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

4 residence visas: which allow a first journey to New Zealand by a noncitizen 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 noncitizens 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 reentry 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 non citizens, as the steps from resident to permanent resident mirror steps that non citizens 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 non citizen. 4

5 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 over complication 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 non citizens 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 non citizen to hold a transit visa to transit through New Zealand. A transit visa allows the genuineness of a noncitizen 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 non genuine 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 pre programme 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 non citizens already 5

6 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 non New 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 non New Zealand passport to be distinguishable from non citizens. 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 non citizens 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

7 Where entry permission is decided Status quo, Policy Problem and Magnitude: The 1987 Act requires noncitizens 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 non citizens 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 pre boarding 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 non citizen left the immigration control area, but amenable to change before then. To maintain control of the immigration control area, it is proposed that non citizens 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

8 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 non citizens, 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 re entry, 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 non citizens, 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