What Makes New Zealand Employers (and why is this important)?

Recently, the Idesi Legal office were confronted with a case which hinged on the definition of “New Zealand Employers”. Our client is employed at a foreign embassy based in New Zealand. He applied for residency under skilled migrant instructions.

Unfortunately, although he ticked all the boxes, his application was denied. INZ decided that the embassy did not meet their definition of “New Zealand Employers” Even though it is in New Zealand, it technically belongs to another nation. If our client was doing his job at the business down the road, this would not have been a problem. His application would have been approved.

This double standard simply did not make sense. Ambassadors and other diplomatic staff are, and should be, considered employed by their home nation. But they are not the only employees! Embassies employ all manner of support staff as well. They are necessary, skilled, and contribute to New Zealand.

We appealed to the Immigration and Protection Tribunal. We argued that INZ were using an unfairly limited definition of “New Zealand Employers”. After much back and forth, the IPT agreed. Last week, we received notice that due to our efforts, INZ have clarified the definition of “New Zealand Employers”. As long the employees are bound by New Zealand employment law and the employer is in New Zealand, they can be considered “New Zealand Employers”.

This is a tremendous victory for common sense. Our client’s case has now been referred back to INZ and we expect a more positive decision.

For your interest, the text of the INZ notice is reposted below:

Aim and intent provisions of Skilled Migrant Category instructions – SM7.1 and New Zealand employers

A recent Immigration and Protection Tribunal (IPT) decision (NZIPT 202934) has clarified the purpose of the ‘aim and intent’ provisions under Skilled Migrant Category (SMC) instructions, particularly in regard to SM7.1. As a result the IPT has made a determination on what is meant by the wording “New Zealand employer”.

The ‘aim and intent’ provisions under SMC instructions are short statements which provide a background to the substantive provisions that follow. Given their broad nature and general application, the IPT has stated that these are not a prerequisite which an applicant must fulfil. Therefore, SM7.1 cannot be used as an overarching provision which an applicant needs to satisfy.

“New Zealand employer” is not used or defined anywhere in the SMC instructions other than SM7.1.a.i. The IPT has determined that if the words “New Zealand employer” meant something more specific than an employer in New Zealand, the term would have been defined and incorporated into the relevant instructions.

For SMC applications, if the employment terms are bound by all relevant New Zealand employment law (including payment in New Zealand dollars) and the applicant is working for an employer that is in New Zealand, then this is sufficient to meet the overall requirements under instructions SM7.

Please discuss with your team(s) the purpose of the aim and intent provisions and ensure the correct interpretation of the term “New Zealand employer” is being used in assessing SMC applications.