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A current dilemma facing many applicants who have lodged or are about to lodge 2021 Resident Visas is whether to add in or try to exclude their Partners.
Wouldn't it be obvious that you would want to include your Partner? Well, yes. The answer in many cases is yes. But actually, many don't want to. They fear INZ will leap to find they haven't lived together for "long enough" and it will be a waste of time, cause their partner to undergo a wasted Chest Xray and may also taint their own application.
Having had assurances from INZ that inclusion would not prejudice an applicant if found not to meet the full partnership requirements, INZ seems to have had a sudden and posthumous change of lens. Welcome to another great immigration pickle.
At the core of this debacle are a number of moving parts across our immigration regulations and instructions. They are, in a nutshell:
to be eligible to be included in a residence application, a partner has to be either married, in a civil union or in a de facto relationship;
if not declared when eligible to be included, a partner can't be granted residence separately later (unless the non-declaration is found to have been unintentional and would not have led to a different outcome in the earlier application);
if not declared, or not included when eligible to be so, or if withdrawn from an earlier residence application, a partner cannot later be granted a medical waiver in a subsequent residence application;
where a partner has applied for a temporary visa based on their relationship to the principal, they must be included in the residence application of their partner;
once included, a partner who had to be included can't be removed unless they "cease" to be a partner (note, a partner who did not have to be included i.e. had not applied previously for a partnership visa) can be removed;
to be granted residence you must have lived together in a genuine and stable relationship for at least12 months;
to be granted a "deferral" for the partner until the 12 month living together requirement can be met, you must be found to be living together in a genuine and stable relationship, just not for the full 12 months;
periods of temporary separation for compelling reasons have always been allowed not to overthrow the living together in certain circumstances.
Ka pai - if only! These rules are now clashing like tectonic plates. In the last week, prior assurances that these would be applied without unduly prejudicing applicants have been shattered into a thousand pieces.
The idea of not allowing partners to be left out or removed once included made its way into the rule book in 2017. This, to stop people leaving out their dependents to try to get around the health or character provisions. The idea was that a family must stand or fall together.
In 2018, a Visa Pak #341 was then issued to clarify what was meant by "have applied for a temporary entry visa based on their relationship". A Visa Pak is an instrument that does not have the force of law. Rather, INZ issues Visa Paks to assist with interpretation. This particular one made clear that those partners who had made General Visitor Visa (GVV) applications as opposed to Partnership applications would not be treated as having made a visa "based on their relationship". Secondly, "applied for" was to mean either having an undecided application in the system at the time of applying for residence or else currently holding a relationship-based visa. It wasn't going to be taken as meaning that if you had once upon a time made a partnership visa application that was declined or withdrawn, you would be forced to include your partner against your will.
The first sign that things were not going to plan was in 2021 when we started to see applicants who had applied for a general visitor visa or partnership visa at any time being forced to be included in skilled residence applications. I took this up with INZ and on 13th September 2021, was informed in writing:
Hey Katy,
Hope you had a good weekend.
This Visa Pak (meaning 341) is no longer followed. There was work prior to lockdown to re-do this Visa Pak; however nothing finalised as of yet.
The Immigration instructions/The Act trump Visa Paks and we follow R2.40d strictly. Hence, in the scenario below, partner must be included as they have applied for a visa that is dependent on the partner – regardless of whether it was in the past (or declined/withdrawn etc).
This then sparked the beginnings of a trail that picked up intensity once the R21 Visa was announced.
Having worked as an advocate for the thousands of partners still split as a result of the border closure, many of whom would now be eligible for this new visa, it was evident this was going to be the next big issue.
A very typical scenario is a couple that met or were betrothed before Covid; in many cases married in 2019. Most, although not all, applied for either partnership or general visitor visas hoping to be assessed and able to join in New Zealand to commence a life here together. Many of those visas have either been stuck in limbo, suspended by the Minister. Or were lapsed. Some were granted but expired before they could be used.
We needed clarity on when inclusion would be considered mandatory and when, precisely, a partner would be able to be removed once included. We knew that many would be forced to be included only to be then assessed as not actually meeting the living together requirements.
Couples struggle, with good reason, to know if they can meet our elastic "living together" requirements. One of the most common questions we get asked as advisers is how long does one have to have lived together to be considered a "partner" for our different tests. The answer is only clear for grant of residence - the non-negotiable 12 month rule. However, for inclusion, deferrals and temporary partnership visas, there is no fixed timeframe in the instructions.
Immigration officers struggle with the living together instructions. This is because what constitutes living together is not actually clearly defined. Instead, we are told (instruction (F2.20.b) there are a number of factors to be considered such as duration of the relationship; the existence, nature, and extent of the common residence; the degree of financial dependence or interdependence etc; the common ownership, use and acquisition of property; the degree of commitment to a shared life; any children; the performance of common household duties and the reputation and public aspects of the relationship. We're then told aside from those factors, an immigration officer must be satisfied taking into account the documents, the corroborating evidence or interviews that the couple are credible, living together unless there are genuine and compelling reasons for periods of separation with evidence of efforts to be together in the time apart, having genuine reasons and intentions for being in a long-term relationship and being stable i.e. showing the relationship is likely to last.
Nowhere is there mention of a specific amount of time living together to cross the threshold. Let me take two quite different examples to test your own thinking:
Couple 1: young backpackers who meet fruit picking in New Zealand. Very soon after meeting they decide to share a room in a house with other flatmates in Auckland. Knowing they want to apply for visas together, they immediately open a joint bank account and start paying bills together. After four months living together they apply for a partnership work visa. Their friends and families all write confirming what a lovely couple they make.
Couple 2: have known each other and each other's families for several years. In 2018 they started talking to each other about a possible marital match. Their families then set about arranging the marriage after concerted discussions according to their cultural tradition. The parties are all compliant, upstanding well-heeled professionals from India. The wedding took place in 2019 with 200 guests. Family members flew in from around the world. Directly after the wedding, the couple moved into the groom's home, as is customary. Just 8 weeks later, the groom came ahead to New Zealand to take up work or studies and the bride put in a temporary partnership visitor visa application to join him. The border came down. That visa remains in the system, undecided. The couple remain in daily contact. The groom has consistently sent money home from earnings in NZ. The bride has been looking after the groom's family ever since, as is her duty as daughter-in-law. The couple have tried variously through Covid to make border exceptions but all were declined.
Which of these two would you consider fares better under our rules? Well, sadly the backpacker couple will probably sail through. The Indian couple will rub up against the unwritten rule that permeates the corridors of INZ decision making that 8 weeks followed by a 2+ year separation does not meet the living together requirements.
So what then, of the overall situation for this couple?
If they want to protect her against loss of the right to a medical waiver later on, she must be included in the residence application now because she is a spouse. Couples often can't compute this risk because we never think we're going to need a medical waiver. A case on point, however, is precisely that of a Filipino partner who was left out of her partner's skilled residence application at a time when she was fit and healthy because they thought the wouldn't meet the living together requirements. She later applied for residence but by now, had developed breast cancer. INZ declined and she appealed. The Immigration & Protection Tribunal found that there was a fundamental distinction between eligibility for inclusion and eligibility for residence. The net result was the poor partner was unable to get her residence due to the likelihood of recurrence of her cancer.
The problem, however, is that if Immigration deems this is a case that is viewed as having to be included because of the prior temporary visa application, if found not to meet the Living Together test, she could fall foul of the rule that says she can't then be removed, depending on INZ's interpretation.
After various battings back and forth, on 6 December I received an email confirming that such partners would be able to be removed from the residence. The main applicant would then get their residence and the partner would live to have another crack at partnership visas down the track. All was thought to be well.
Phase 1 of RV21 seemed all quiet. No adverse issues were reported. In fact, on the flip side, we were made aware of a case where a couple hadn't lived together after marriage but a deferral had been granted. This gave hope that perhaps others would follow suit. As long as there is no jeopardy in including a partner, being assessed and either being granted a deferral or being removed at least gives options that don't lead to perverse outcomes.
However, last week, we began to see a worrisome trend. "PPI" or potentially prejudicial information letters have been sent out stating to the effect that due to having made a partnership application that was found lacking back in 2019 and declined, the partners had to be included and could now not be removed. The inference is that both applicants must therefore be declined. It is precisely what we had so carefully sought to avoid.
We are left with an intolerable situation where you may be damned if you include and damned if you don't.
This affects a cohort of temporary migrants that have, quite frankly, suffered enough. We have, in the name of Covid-19, kept these families separated. We are now further hamstringing their passage to residence. Couples who have made relationship-based visa applications in the past are also being placed in a worse situation than those that didn't, which seems counterintuitive. These are not couples trying to avoid health or character issues - they are just trapped by rules that were written before we ever imagined a border closure would separate couples for this long. They seem no longer fit for purpose.
I understand that in an environment where decisions are being made in such bulk under huge pressure of time and with lack of resource, it is tempting to want to double down on the binary approach. A change to instructions in just the last 2 weeks has, for the first time, allowed for residence decisions to be made by computers not humans. While the IT infrastructure for that is not yet built, it shows the direction in which we are heading.
There is a fix that can be made and it can be made immediately:
INZ can issue immediate advice without having to change any of the regulations or instructions to make clear that for these purposes a "partner" found not to meet either the deferral or grant of residence criteria can be removed from an application;
Better still, a pragmatic approach to the living together instructions written without a border closure in mind will grant deferrals to all those separated by the border who can show that pre-Covid they had started a life together and have kept their relationship intact since. Therefore avoiding the whole issue of whether they can be removed from the application or not and giving a purposeful meaning to this tangled word web.
Evidently, this week the matter is being further discussed.
Anyone with a PPI letter should seek advice if not already doing so. I will continue to do my part to co-ordinate efforts to resolve this issue in the most favourable way possible. It is very difficult when INZ is making apparent U-turns that create inconsistency with previously confirmed approaches and after a visa category involving 165000 applicants is already underway.
To be continued...and in the meantime to each and every one of our Clients in this predicament, we will be ensuring all strategies are reviewed in light of whatever INZ comes up with next.
Katy - re-living old Bill Murray moments for those of you that know the film. We so often find, in immigration dealings that as staff move on or issues do the rounds, that it's Groundhog Day..:
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