LaurentLore Corporate Edition
May 2015
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In This Issue
Variation of Conditions
Interim Visa
Migrant exploitation/Employing overstayers
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This, our Corporate newsletter provides information about immigration which we consider to be relevant to Corporates and Employers. We also produce a separate 'business' newsletter focusing on entrepreneurs and investors, and a 'migrant' newsletter offering advice to prospective and recent migrants to NZ.



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Bill Milnes
Laurent Law Barristers & Solicitors
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Your comments would be appreciated - including questions which you would like answered directly or in a future instalment.
Variation of Conditions (VOC's)


A new client is now an overstayer because he submitted an application for a VOC, when he should have applied for a new work visa. He'd previously been granted a VOC when his company was sold. Although he got advice from Immigration NZ, when he followed that advice his application was declined. He did not realise that he needed to lodge a new work visa application with all the supporting documentation that entails.

Although we will be able to sort it out, his unlawful status makes it more difficult. He cannot be granted an interim visa - see below. Therefore he has to cease work until the process is sorted and a new visa issued. Paying for competent advice would have been far less expensive for him and his employer, than finding themselves in this situation.

VOCs are very limited and only apply for the term of the original visa. In many cases, merely changing the type of job to be done, or moving from one town to another on the same job, will require a whole new work visa application.


Interim Visas


Interim visas are granted when an applicant holding a current temporary visa [work, student, visitor] lodges an application for a new temporary visa; and INZ identifies that the application will not be decided before the current visa expires.

 If the application is for a visa of the same type and conditions, an interim visa is likely to be issued maintaining the applicant's current situation. E.g., if an applicant working for company X applies for a new visa for the same position in the company, s/he would be granted an interim work visa to allow employment to continue.

However, if the applicant is applying for a different type of visa or with different conditions, then an interim visitor visa will be issued. - e.g. a person holding an employer-specific visa applying for an open work visa under partnership category, will receive a visitor visa and not be able to work until a new work visa is granted.


Migrant exploitation/Employing overstayers



We are all aware of recent media attention on the exploitation of migrants in some industries; and the concern that any exploited migrant who complains, risks having his visa revoked and becomes victimised by the system as well as the employer.

New legislation introduced on 6 May 2015 is a symptom of a more general change of focus from the migrant to the employer. Employers can now be prosecuted if they are merely 'reckless' about whether their employees have the right visa - or have a visa at all. Previously the employer could only be prosecuted if they "knew" - i.e., had been told - that the employee was not entitled to work for them. This lowers the evidential bar and will make prosecution of employers more easily accomplished.

INZ has appointed a new Area Manager responsible for the investigation and prosecution of employers and educational institutes. Everything we have seen to date, including this Manager's presentation at recent industry seminars, indicates that they are keen to test new legislation in court. Conversely, INZ have acknowledged that if they are to be successful in addressing the issues of migrant exploitation, any 'whistle-blowers' will need some level of protection. We have already heard of INZ meeting with one overstayer, identifying a route to residence and assisting the person to start that process. Whether that attitude will continue, or be corrupted by political pressure we shall no doubt see over time.


The new legislation increases the pressure on employers to ensure that their recruitment processes are tight and that 'right to work' checks are continually carried out.

Penalties are now up to:

  • 7 years imprisonment and/or a fine of $100,000 for 'knowingly' exploiting an unlawful employee or a temporary worker
  • 5 years imprisonment and/or a fine of $100,000 for being "reckless" about exploiting migrant workers or 'recklessly' employing someone not entitled to work.
  • Fine of $50,000 for knowingly employing someone not entitled to work
  • Fine of $10,000 for employing someone not entitled to work, even if the employer doesn't know the employee's status.

An employer is deemed to 'know' when advised in writing by an immigration officer. Courts have said that the term "reckless" is notoriously hard to define - a problem in itself for employers facing charges. It implies that an employer should have been aware that the employee was not entitled to work, but disregarded their duty to determine this and act on it. On the other hand, it is a defence under s 350 (3) of the Act if the employer;

  • (a) did not know that the person was not entitled to do the work; and
  • (b) took reasonable precautions and exercised due diligence to ascertain whether the person was entitled to do the work.         

Key will be whether the employer's interpretation of 'reasonable precautions and exercised due diligence' is shared by INZ and the court.

Just because someone has been with you for years does not mean it can be assumed that s/he has the right to work for you.

Bill says overwork is like old age - it sure beats the alternative.




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