Fate of immigrants fought out in court

By THERESA GARNER

The fate of thousands of would-be New Zealanders hangs on a court case this week over changes to immigration laws.

A High Court battle is taking place over the retrospective application of new immigration rules making it harder for foreigners to enter the country.

A furore erupted after the law changes came in unexpectedly at the stroke of midnight on November 19 last year, and the New Zealand Association for Migration and Investment took the case to court.

Would-be migrants are in a holding pattern because the Immigration Service has deferred decisions until Justice Tony Randerson hands down his ruling.

The association's lawyer, Dr Rodney Harrison, QC, said he was not challenging the policy or asking for individual cases to be looked at. The essence of the case was the policy being applied retrospectively to those who applied under the old law.

Dr Harrison said the case boiled down to "legitimate expectations" and fairness to people who spent time and money preparing their applications. "They [the Government] simply decided to have the changes take effect immediately for reasons of administrative convenience."

In an affidavit filed in the court, Immigration Minister Lianne Dalziel said an ongoing review had highlighted problems of migrants with inadequate English and the wrong skills to fit into the workforce.

She said it would have been "counterproductive" to give advance notice of the changes.

Her reasons were the prospect of a rush of applicants trying to get in on the old policy and delays in implementing the new policy.

In November last year, in the "General Skills-Residence" category, 19,567 applications had been pending involving 40,000 people, with an average processing time of more than six months.

"If the previous policy had been applied to such applicants, the effect would have been a long delay in the implementation of the new policy."

Ms Dalziel said those no longer eligible for temporary work visas - about 6000 - could withdraw their applications and ask for a refund.

She commented on abuses of the system, including applicants buying "off-the-shelf business plans" to gain entry without any intention of setting up the business, and misrepresenting the date of application.

And it emerged that the affidavits of some immigration consultants revealed they offered guarantees, which surprised the minister, given the "inherent element of uncertainty" in the immigration arena.

The chairman of the association, Bill Milnes, said outside the court that the retrospective application of the new rules was unfair to people who had put their lives on hold to undergo the process of applying to come to New Zealand. "They now find the goal posts have been moved, leaving them in a legal limbo."

He said an important legal principle was at stake. "There is a presumption against retrospectivity in our legal system."

The association's 200 members include immigration and investment consultants, banks, business people and financial advisers.