Former immigration officer on an “amnesty”: it could start as early as May and be completed before the election

News recap:

Immigration New Zealand estimates there are around 14,000 overstayers in New Zealand. Immigration Minister Michael Wood confirmed he had received advice on an amnesty-like arrangement for overstayers and on various schemes previously introduced in New Zealand, but had not yet submitted a paper to Cabinet.

In fact, efforts to secure an amnesty for overstayers have been under way behind the scenes for several years, led mainly by the Green Party, Pacific community leaders and other migrant groups.

“We are actively considering this issue. It is something I have been discussing,” Michael Wood said, adding that he had spoken about it with ministers, including the Minister for Pacific Peoples. However, Wood could not give a timeframe for any decision.

New Zealand has previously granted amnesties to overstayers, and Chinese citizens have benefited. Around 1990, New Zealand granted an amnesty to some Chinese international students. In 2000, some overstayers who met requirements relating to length of residence, having New Zealand-born children and marriage to New Zealand citizens or residents were also granted an amnesty, covering around 7000 people.

 

Will this “amnesty” really happen? Will those concerned automatically receive PR, or will they still need to apply? What will the eligibility requirements be? Is there a faster, more effective approach? …

With these questions in mind, YIJU New Zealand interviewed senior immigration lawyer Sonny Lam of Queen City Law. With 15 years of litigation experience and a background as an Immigration New Zealand officer, he shared his analysis and views on the “amnesty” with YIJU readers:

 

1. YIJU: Do you think the “amnesty” will really happen?

Sonny Lam: Yes. If the Immigration Minister did not already intend to do this, he would not have said they were actively considering the proposal. Rather, I think the news was probably released deliberately to test public reaction. From what I have observed so far, it has not attracted widespread attention. It seems only those who are “unlawful” are paying attention.

Unless the situation changes abruptly over the next few days and there is a strongly negative public reaction, I think an “amnesty” is very likely.

 

2. YIJU: Why propose an “amnesty” now rather than during the pandemic?

Sonny Lam: I think economic conditions have changed. During Covid-19, the economy performed very well and house prices were rising. Now, high inflation, a high cost of living and cyclone damage in New Zealand have made daily life very difficult for local people, and crime rates are also high. If an “amnesty” is approved, it would also ease the shortage of police resources to some extent.

Taking a more cynical view, I think the “amnesty” is closely tied to this being an election year, because Labour badly needs votes.

 

3. YIJU: Based on your experience, when do you think the “amnesty” would begin?

Sonny Lam: If the “amnesty” goes ahead, I think it could begin as early as May 2023. Of course, the Government usually moves slowly, unless it needs to act faster, so it could be between August 2023 and October 2023. After all, the Government has an incentive to complete this before election day.

 

4. YIJU: Would those covered by the “amnesty” still need to apply themselves?

Sonny Lam: I think there will be an application process. I reach that conclusion because there was a similar scheme as far back as 2000.

In 2000, the Government introduced an amnesty scheme for “well-settled” overstayers, defined as people who had lived in New Zealand for five years or longer, had New Zealand-born children and had been married to or living with a New Zealand citizen or resident for at least two years.

History tells us this “amnesty” would not be automatic either: an application would be required. That approach makes sense. Otherwise, anyone holding a visitor visa could now travel to New Zealand and overstay, using it as a fallback route to residence.

 

5. YIJU: What requirements do you think “amnesty” applicants would generally need to meet?

Sonny Lam: I think there would be some basic requirements:

• No criminal record in New Zealand, or the ability to meet Immigration New Zealand's good character requirements;

• Passing a medical examination;

• Single applicants would probably need to have lived in New Zealand for at least 5 years;

• Applicants relying on family grounds would probably need to prove they have New Zealand-born children;

or

• Applicants would probably need to prove they have a partner who is a New Zealand citizen or resident, that their relationship is genuine, and that they have lived together for at least 1 year, or possibly 2 years.

• There would probably be an English test component or a requirement to be able to attend English classes and complete the course within 6 months of residence being approved;

• I think there would be an application fee.

 

6. YIJU: What do you think of Immigration New Zealand's “amnesty” plan?

Sonny Lam: It has been 23 years since the last “amnesty”, so now is a reasonable time to introduce a new scheme.

The most important question is how long it would take to process the applications. The 2021 RV scheme is still unfinished and has already used more resources than expected. Kris Faafoi, the Immigration Minister who announced it, has even left office.

Granting an “amnesty” to overstayers is generally not a simple process. If overstayers have an opportunity to gain residence, some will have a strong incentive to commit fraud, potentially presenting a huge operational challenge for Immigration New Zealand.

 

7. YIJU: Do you think an “amnesty” would have any negative effects or risks?

Sonny Lam: There would certainly be negative effects and risks.

First, it would create a sense of unfairness. Why must people be lawfully present, work hard and meet all Immigration New Zealand's requirements to obtain PR, while others can benefit from breaking the law?

Second, this “amnesty” could send the wrong message: if you come to New Zealand and stay unlawfully, you may have a chance to obtain PR unconditionally. For example, past “amnesties” in the United States instead encouraged more illegal immigration, a problem that remains unresolved.

So the key is how the “amnesty” is implemented. The “conditional” approach I mentioned may strike a balance. My concern is that Immigration New Zealand might simplify the application requirements to reduce its workload… That could create major problems.

 

8. YIJU: If an “amnesty” does happen, do you think there is a better way to implement it?

Sonny Lam: I think the problem with an application-based “amnesty”, such as the one in 2000, is that not everyone qualifies and processing takes time. If there is an application fee, it adds to the financial burden of people whose lives are already difficult. Also, as I mentioned, it could even encourage fraud.

I have a simpler suggestion: give all overstayers an open work visa valid for 6 months, allowing them to start work and earn some money immediately. Some might use that money to buy a ticket out of the country; others might use the “six-month work visa” to apply for another work visa; and others might use it to apply for residence under the amnesty.

This proposal would be easier to administer, ensure everyone received the same treatment and reduce Immigration New Zealand's workload, allowing it to focus on completing work it is still working through, such as the 2021 RV scheme.