Section 4 - The Visa and Permit System |
This section discusses New Zealand's visa and permit system. It considers the option of a simpler and more operationally flexible system that better facilitates the entry and stay of non-citizens, while also managing risk.
The proposals in this section will be complemented by the Department of Labour's new business model, which is also currently being developed. The new business model includes enhanced online services, decisions being made by New Zealanders, integrated IT support across the business and tailoring client services.
Under the Immigration Act, every New Zealand citizen has the right to be in New Zealand at any time. The New Zealand Bill of Rights Act 1990 reinforces this: "every New Zealand citizen has the right to enter New Zealand". It is implicit in the Immigration Act that any New Zealand citizen who leaves New Zealand has an automatic right to re-enter.
Non-citizens require authority to travel to, enter into, and remain in New Zealand under the Immigration Act. This authority is managed by a two-document system consisting of visas, which enable a person to travel to New Zealand, and permits, which enable them to enter and remain.
A visa provides the authority for a non-citizen to travel to New Zealand. A visa indicates that the issuing officer knows of no reason why the holder should not, on arrival in New Zealand, be granted a permit of the corresponding type (for example, a student permit following a student visa). Any specific conditions to apply to the permit are included on the visa (such as conditions requiring a student to study a particular course during a specified period).
A permit provides the authority for a non-citizen to enter and remain in New Zealand. It sets the duration and conditions of stay. Permits are granted onshore, either at the border or within New Zealand. The permit specifies what the holder can and cannot do under the Immigration Act. It defines the immigration status of the holder. This determines eligibility for access to services and benefits in New Zealand.
A permit expires when the holder leaves New Zealand, regardless of any other expiry date. To ensure that a further permit is granted on return to the border, a visa or visa-free status is required. For example, if a student with a permit to study in New Zealand for the academic year went to Australia during their holidays, their permit would expire. When they flew back to New Zealand they would need to have a valid student visa and be re-issued with a new student permit upon arrival at the border. Non-citizens here without a valid permit are in New Zealand unlawfully (unless exempt, as discussed below).
The visa and permit regime requires people intending to come to or stay in New Zealand to make their intentions clear during the application process. This ensures that New Zealand can select those people who meet its desired immigration outcomes.
There are various provisions under the Immigration Act to exempt people from the requirements to obtain a visa or hold a permit. These general exemptions are specified in regulations.
The Immigration Act describes the types of visas and permits. It requires applicants to apply for them in the appropriate manner (with details in the regulations). The Immigration Act and regulations also establish the general conditions placed on visa and permit holders. In addition to general conditions, specific conditions can be added to permits. For example, for a student, a general condition could include the requirement to study, while a specific condition would require that a specified course be taken at a specified institution.
The current immigration system has the following types of visa:
These visas are coupled with the following types of permit:
The criteria for being granted each type of visa or permit are largely a matter for policy and are not included in the Immigration Act. The Immigration Act review does not include an examination of the criteria for any specific policy categories. Reviews of policy categories are undertaken continually, as needs are identified, and do not need to wait for incorporation in a legislative review.
New Zealand citizens' rights - The explicit protection of New Zealand citizens' right to re-enter New Zealand is a strength of the current framework. The requirement for non-citizens to have an appropriate authority to travel to, enter and remain in New Zealand is fundamental. It allows New Zealand to exercise its sovereign right to manage immigration.
Visas and permits - Having two documents (visas and permits) reflects the distinction between two functions: permission to travel to New Zealand and permission to enter and remain. Requiring some people to apply for a visa offshore ensures that some non-citizens seeking to come to New Zealand are assessed before they travel here. It also emphasises that permits carry greater rights and obligations than visas.
Visa and permit types - The Immigration Act allows the rules for approval under the various immigration policy categories (for example, the Skilled Migrant Category) to be set in policy. Each type of visa and permit has several immigration policy categories sitting underneath it (for example, the temporary visa and permit category includes visitor, work and student immigration policy categories). This contrasts with the Australian approach, where each policy category has its own visa class and subclasses specified in regulations, along with the documentation requirements, policy rules and post-approval conditions.
Exemptions - The capacity to exempt individuals or classes of people from visa and/or permit requirements provides flexibility in the immigration system. It allows New Zealand to apply different levels of risk management and assessment to different individuals or classes of people. While immigration decisions are made on an individual basis, varying the levels of scrutiny for different groups reduces unnecessary scrutiny for low-risk groups. It allows resources to be applied to the groups more likely to be a risk (such as those at risk of overstaying the length of their permit and remaining in New Zealand unlawfully).
Terminology confusing for some people - The general public tend to talk only of visas. Many people are unaware of the distinction between visas and permits. This may undermine the principle of understandable and accessible legislation. An opportunity exists to examine whether there is a need to maintain distinct terms.
Multiple permit and visa types may no longer be required - In practice, the distinctions between current temporary visa and permit types (work, student, visitor) are not always absolute. For example, some categories of student policy allow part-time work, three-month study courses may be completed on any type of permit, and work permit holders can undertake employment-related training without specific permission to study. This suggests that the distinctions between visa types established in the Immigration Act are unnecessary. It may be that only the distinction between temporary and permanent visa types is important enough to be established in the Immigration Act. Particular conditions that relate to a person's entry and stay in New Zealand could be included on their permit.
Exemptions regimeis fragmented - Exemptions from visas and permits are varied. Some exemptions are included in the Immigration Act, others in the regulations. For example, visa exemptions for travel to New Zealand are enabled by the Immigration Act, but details of exemptions (such as the list of visa-free countries) are specified in regulations. On the other hand, temporary permit exemptions for entry and stay in New Zealand are included in the Immigration Act. The visa and permit exemption for Australian citizens sits in regulations.
The complexity of the current exemption system potentially undermines the principle of understandable and accessible legislation and New Zealand's interests in facilitating the entry of migrants and visitors. The review provides the opportunity to reconsider appropriate legislative placement of exemption powers.
Inability to take compliance action against some visa- and/or permit-exempt people - Exempt people (except diplomats) are still subject to the minimum character standard provided in section 7 of the Immigration Act. For example, Australian citizens living permanently in New Zealand are subject to deportation for criminal offending under provisions that are similar to those that apply to residence permit holders.
Action, however, cannot be taken against visa- and/or permit-exempt people who commit immigration offences outside the scope of section 7. For example, if a member of a ship's crew committed an immigration offence, it is currently difficult to end their exempt person status and require them to leave New Zealand. In this circumstance, if the exempt person was treated like a temporary permit holder, their offence may enable the Department of Labour to revoke their exempt status and remove them from New Zealand.
There may no longer be a need for a distinct exemption provision - The details and operation of each type of exemption vary. Some require similar processes to obtaining a visa or permit. For example, diplomats coming to New Zealand are exempt from visa and permit requirements but must complete arrival and departure cards. They also have their diplomatic status confirmed by an immigration officer, who enters an endorsement into their passports.
The Advance Passenger Processing system screens visa- and/or permit-exempt people before they travel to New Zealand. This blurs the distinction between their exempt status and that of people who require a visa to travel. There is an opportunity in this Immigration Act review to reduce the complexity of the current exemption system.
In line with New Zealand and broad international practice, Canada, Australia and the United Kingdom (UK) all generally require non-citizens to have some form of authority to travel to, enter and remain in the country. Canada and the UK explicitly protect (via immigration legislation) the right of their citizens to enter and remain in the country, mirroring the provision in New Zealand's Immigration Act.
Canada uses a visa and permit system to manage immigration. The UK and Australia have visa-only systems. In all cases, the documents (whether they are called "visas" or "permits") are able to distinguish between authority to travel to the country and the authority to enter and stay.
Both Canada and the UK have flexibility in their systems to make exceptions to standard visa (and permit) requirements. Canada has visa-free arrangements with a number of countries and also allows for permit exemptions. The UK has visa exemptions made up of visa-free arrangements and "others". These "others" include people who are fully exempt (for example, diplomats, consular officers and Heads of State), as well as those who are partially exempt (for example, members of foreign governments and visiting forces).
All non-Australian citizens require a visa to travel to and enter Australia, without exception. However, Australia does have a range of options for facilitated travel and entry for particular groups. For example, the Special Category Visa for New Zealanders is equivalent to a "visa-free arrangement". The Australian Special Purpose Visa, for visiting armed forces or crew of some ships, is like New Zealand's temporary permit exemption.
Australia also has an electronic travel authority (ETA) to facilitate entry for short visits which is similar to New Zealand's visa-free system. ETAs are issued by authorised travel agents and airlines and require only minimal security clearance checking. There are 32 countries whose citizens are eligible for ETAs.
It would be possible to retain the current terminology of "visa", "permit" and "exemption". Distinct terms make drafting legislation easier. The approach outlined below, however, includes a change to terminology and is preferred.
The various elements of the visa and permit system, and exemptions regime would be brought together into a single framework that would:
Using one term - "visa" - to describe travel, entry and stay would primarily be a terminology change from the status quo. The current functions of visas and permits would remain. The new visa would still give authority to travel to New Zealand as well as authority to enter and stay. A distinction could be made between a visa received prior to travel and a visa issued when a non-citizen was in New Zealand. Differences could also be made between a visa stamped in a passport or issued electronically.
Under this option, there would be the flexibility to make exemptions for individuals or groups of people from the standard requirement to hold a visa to travel to, enter and remain in New Zealand. The extent and stage of scrutiny and risk assessment would vary for different groups.
To be consistent with a visa-only system, the status of exempt people would be recorded in a visa, even if this was only an electronic visa issued in departmental records. The legislation would provide for the following:
Under this approach, legislation would set out generic visa types, for example, permanent and temporary. Policy categories would continue to specify the rules for approval and the conditions that applied after approval. A further development of this approach would be to grant visas with the same name as the policy (for example, approval under the Skilled Migrant Category would lead to the grant of a Skilled Migrant Visa).
This approach would be consistent with the objective of regulating entry and stay in New Zealand's interests. In particular, it would contribute to our interests in facilitating entry to generate sustainable economic growth and strong communities, while managing risks in order to maintain the safety and security of New Zealand.
Having the high-level framework for visas in the legislation and supporting detail in regulations and policy is consistent with a framework approach (discussed in Subsection 3.3: What level of detail should be in the primary legislation?). It allows for maximum flexibility to change criteria as required, contributing to the goals of an effective and efficient immigration system.
This proposal builds on the status quo and therefore retains many of its strengths. Using the single term "visa" would simplify the system from a user's point of view. It would be consistent with the principle of understandable and accessible legislation. Because the existing functions of a visa and a permit will be retained under this proposal, effective communication of legislative changes would be required to avoid confusion.
A single document system may allow for some processing efficiencies at the border, by dispensing with the need for a permit to be endorsed in passports with an ink stamp by Customs. Similarly, processing efficiencies may be gained onshore by no longer endorsing both a visa and a permit in passports. For example, many people granted long-term work permits onshore need to travel internationally during their stay in New Zealand. Currently, in addition to their work permit, they must be granted a work visa so that their permit is reinstated at the border when they return to New Zealand.
Bringing exemptions into a single-visa framework reflects the nature of current exemptions more accurately. That is, they are devices that allow groups of people to be excused from some of the general scrutiny requirements and conditions of stay. They are not intended to place someone outside the immigration framework altogether.
Expanding the ability to vary exemptions on a case-by-case basis would mean that New Zealand would be better placed to manage risk, particularly at the border. To mitigate the risk of inappropriate use of such powers, they would be reserved for senior delegated officials, and there would be clear guidelines around appropriate application. Ministerial ability to temporarily suspend exemptions (including visitor visa-free arrangements) would allow an immediate response to risk in extreme circumstances (for example, a specific escalation in terrorist or public health threats).
Maintaining rules for approval in policy (rather than in legislation) would maintain the flexibility of New Zealand's immigration policy regime. Policy can currently be changed quickly to meet new needs. This flexibility would be reduced if each new or amended policy required the establishment of a specific visa class in the Immigration Act or regulations.
Reducing the number of types of visa may provide more simplicity for applicants and third parties. Matching the name of the visa granted to the name of the policy category would also help people understand the system.
This approach could create some administrative costs. Effective communication with key interest groups would be needed to avoid confusion around the changes.
A system where everyone is required to submit a full visa application before travelling to New Zealand has been considered. This system would allow risk assessment to occur in all cases before the person reaches the border. It would not allow the flexibility, however, to apply varying levels of scrutiny in different cases and to thereby facilitate the entry of people New Zealand wants.
4.1 Key questions
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The following general visa and permit exemptions are currently in place:
Temporary exemptions from the requirement to hold a permit (and thus a visa) detailed in the Immigration Act include foreign diplomats, crew or passengers of ships, crew of aircraft and members of visiting armed forces.
Senior officials have delegated power to exempt a person from the requirement to obtain a temporary visa on a case-by-case basis. Senior officials also have delegated power to exempt individuals from the requirement to hold a permit. In some circumstances, they can also require that an exempt person hold a permit.
Some current exemptions are low-risk and/or some result from an external agreement. It is likely that, under any new visa and permit framework, these exemption categories would remain in effect, perhaps under a new name. The categories are likely to be:
The current visa-free arrangements for short-term visitors are subject to ongoing monitoring. These arrangements will not be examined as part of this review. Exemptions for people who generally present an acceptably low level of risk are of benefit because they:
Unclear rationale for some current exemptions - The need for increased vigilance on individuals or groups of people who may present security risks to New Zealand brings into question the rationale behind some exemptions. For example, the visa and permit exemption for crew of sea-going vessels may create an undue risk for New Zealand.
This review provides the opportunity to examine current exemptions. Relevant international or reciprocal agreements need to be taken into account, as do current risk assessment tools. For example, Advance Passenger Processing could be used as a tool to minimise risks, to allow exemption from the requirement to hold a visa before travel, but require a visa once in New Zealand.
Unclear rationale for exempting some people from the need to submit arrival and departure cards - Holding a visa and/or permit exemption does not mean unregulated and unrecorded entry into New Zealand. However, some exempt groups of people do not have to fill in arrival or departure cards (such as crew on commercial aircraft). This complicates record-keeping, as it is possible for people who arrive by air and have their arrival recorded on the immigration system to then depart by sea without completing a departure card. This means their departure from New Zealand will not match their arrival record and impacts on the accuracy of immigration data.
Exemptions will be reassessed to allow New Zealand to ensure that both the air and sea borders have appropriate risk management protocols, and to improve the efficiency of the system. Specific proposals regarding which exemptions should be included in the Immigration Act have not yet been developed.
Changes to the visa and permit system and the collection of border movement data would have resource implications for the Department of Labour and agencies such as the New Zealand Customs Service. There could be some new compliance costs for people who currently do not have to interact with the immigration system at all, but would be required to in the future. The operational and compliance implications of possible changes need to be assessed in the context of maintaining New Zealand's safety and security.
You are welcome to put forward your views on which of the current exemptions should be retained.
4.2 Key question
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