Unintended Consequences
Immigration is essentially all about consequences - the most significant of which being the outcome of an application for a visa - approved or declined. Those consequences however, can and do change lives forever. Whilst most consequences are planned events and if done right they are successful, however not all consequences in this process are intentional. There are things that can cause the trajectory of an application to shift dramatically, some of them based on simple mistakes by applicants and others, by the design of the very rules they are relying on to apply.
Applicants can, and often do things during their run up to residence that they might assume are quite innocent, and wont have any long term impact, only to find that when their application is being assessed - that thing that appeared to be of no concern at the time, has come back to haunt them. In the same way, policy makers can change a rule here, that has an impact on an applicant in a very different way somewhere down the line.
Consequences, and knowing how they might all pan out are a huge part of the work we do. Planning for them, anticipating them and then dealing with them where applicants might not have been so thorough. This week we take a look at some of those unintended consequences that applicants can stumble over and policy makers are unaware even exist.
Policy Consequences
Immigration policy is complex and so I do have plenty of sympathy for those who write it, particularly when they are writing new rules to adjust, update or remedy existing ones - and we have had plenty of that happening over the last few years. Given the complex nature of these rules, whenever a Government wants to shift direction on a particular category or tighten things up, the easiest way to do that, is to modify what is already there.
Creating an entirely new set of rules and criteria, requires both more political involvement, more IT updates (to change the way that rule is implemented) and more resources from within INZ. So the standard process is to provide a patch or fix to the existing criteria.
Rules, Upon Rules, Upon Rules
Immigration policy is often a patchwork quilt of rules, each new set of requirements, layered upon previous ones, creating a web of potential issues.
Sometimes that quick fix works and can save a lot of time in terms of solving a problem that might impact a large pool of potential applicants. Other times what is fixed in one place can create problems in other parts of the policy.
A good example of this (and there are a few), are changes that are rolled out to Work Visa, can then have a flow on effect when those applicants go to apply for Residence.
In late 2024 INZ introduced a patch to AEWV policy that dealt with the issue of Work Visa holders caught up in a business sale or restructure. Prior to that patch, when a business was sold or restructured, the Work Visa holder was required to go through the entire Job Check and then Job Change (or new AEWV) process in order to make sure the conditions on their visa reflected that business change. The fix aimed to simplify this and remove some of the administrative hassles involved. Arguably these circumstances were always potentially going to happen and so this was plugging a fairly obvious hole.
Fast-forward to more recent times and applicants who are now applying for Residence are being challenged on this, because when that change occured and their visa was updated, INZ is interpreting that to be a “change in employment” requiring a change in the wage or salary they earned (to reflect the median wage requirements at the time of that change). We of course are querying that because, the only change was the legal entity offering employment, and it was not a change initiated by the applicant.
Because many of our immigration rules are linked, albeit indirectly, changes to one aspect of that policy can create a ripple of other changes elsewhere. Some of these get noticed, others missed, until applicants come to rely on them or their applications are tested against those changes. The consequences of updating immigration policy are never simple.
Application Consequences
For applicants the law of unintended consequences is much broader and there are so many more ways that those consequences can create issues in each and every visa application you make. It would take an entire series of blog posts to list them all, however I have outlined a few of the more common areas people trip up on, in the following section. Some of these can be fixed, but others can lead to an application failing entirely, so it is really important for anyone embarking on this process to avoid these potential pitfalls at all costs.
Check, Check Again
Even if you think you have it covered, checking the requirements thoroughly, before you commit to the application process is crucial.
Inconsistency - Many applicants wont just file one visa application but could potentially file several in a string of applications that all lead to the end goal. The information provided in each application is considered in each of the following applications and so information needs to be consistent.
Change In Circumstance - you might secure a new job and then update your visa, however many clients are unaware that this also could require a change in their salary in order to continue to be able to accumulate work experience in New Zealand, which can be a vital part of the points they need or a component of their future work to residence application. In some cases clients change roles within the same company but don’t change their visa details and end up in breach of their visa conditions.
Failure To Declare - a very common issue is a failure to declare all of the right information at each step. Some applicants might have previous convictions that have been expunged or cleared from their record, and the believe they dont have to declare them. That might work for one application and be found in another, creating an issue of false and misleading information. Similarly previous declined visas from other countries, not declared in a NZ application can create character and disclosure issues.
There are numerous points during each application that any migrant might have to make, where the decision to include, or not include information or take a particular course of action, can have a very significant impact on the overall outcome, one that might not be obvious at the time - and because most applicants are faced with making not one but several visa applications before reaching the end goal, the potential for this to go wrong increases exponentially.
Avoiding The Unintended Consequences
The simplest, easiest and most effective way to avoid these unintended consequences is to plan, prepare and then check every step you take in the process. That isn’t always easy when you aren’t entirely sure what you should be checking for. One obvious benefit of enlisting the services of a good adviser is that it is their job to know how every link in the visa chain might work and how the actions you take today, might impact on the applications you make tomorrow, the next day or even years down the line.
Dodging Bullets
A big part of avoiding unintended consequences is being prepared from the very start and having a clear pathway through the rules that apply to you.
There are two key things that applicants need to consider, assuming they are not filing this on their own.
The first is to ensure that from the very start of the process, they have a clear outline of the pathway ahead of them in terms of the different visas that will be required. This includes establishing what the requirements will be for a future residence application upfront.
For some applicants who can apply for residence directly, there is less risk, given it is just one application to make, however they still need to ensure they are making the right declarations, and presenting the correct documentation.
For applicants who need to link visas together, particularly if they require a period of work experience in New Zealand to qualify for residence (Work to Residence Green List or SMC with points for New Zealand experience), understanding the salary requirements at the start and end, along with knowing that any changes during the process (to employer or Work Visa conditions) can have an impact on that eligibility are really important. Of course these applicants also need to make the right declarations throughout the process.
Doing this however is harder than it looks, because updates and changes to policy are not often released publicly and so it requires keeping ahead of those changes by constantly checking INZ’s website (which even then isn’t always that clear).
Having someone on board who has access to that information, but more importantly can interpret how it might impact on you is not just useful, but for some applicants crucial. I have saved many an investor applicant from making the wrong decisions during their required investment timeframe and many skilled migrants from stopping the clock on their work experience due the wrong job change details.
Considering the investment in time, energy and money that most migrants pour in to the process, having it all unravel because of one potentially very minor, but ultimately influential unintended consequence, is really not a risk worth taking.
Plan Ahead, Be Prepared
I could be accused of being a bit of a “broken record”, given I repeatedly discuss how important the planning and preparation phase is, for a potential migrant, but that label has never bothered me - simply because I do believe very passionately that good preparation is the key between success and failure in this process.
Planning how each and every visa fits together, how information flows from one to the other and making sure that my clients declare everything they need to, backed up by complete and sound evidence is where we always start. While some applicants are keen to rush to the finish line, we always believe that slow and steady wins the race - and taking time to prepare at the outset, will make sure you do actually finish that race.
If you are considering the move or are already here and looking at your next step in terms of the residence process, then checking, rechecking and double checking your plan or next application before you commit is a good place to start. Our team are really good at that, and really good at making sure our clients avoid those unintended consequences.
Even if you are not one of our clients, we can also offer you a handy guide, which explains a lot of the key visa information people need to know (click here).
Until next week!
