Leading immigration lawyer Aaron Martin
highlights the need to act to protect the migrant workforce and give them certainty about their work status in New
People who are currently in New Zealand on a temporary work visa and applying for residence face increasing uncertainty.
In these extraordinary times when the country is coming to grips with how we manage the coronavirus, we can’t forget we
have around 190,000 people living in New Zealand who are on a temporary work visa, and around 85,00 international
students on a student visa.
If New Zealand businesses begin to lay off staff, the pool of unemployed skilled labour will increase. Work visa holders
may discover that employers can find New Zealanders to perform the work being done by the migrant worker. That will be a
major impediment to seeking to that worker seeking to renew their work visa. Work Visa applications require a labour
market test, namely the employer must try to recruit a New Zealander to the position.
The work visa rules are very clear: if there is a New Zealander who is available to perform, they must be offered the
job over a migrant. Employers won’t be able to secure work visas for a worker on the basis the visa applicant has been a
‘good employee’ of long standing or is familiar with the business if there is a New Zealander available to do the work.
This will result in migrant work visa applications being declined, which will leave these migrants in the difficult
position of needing to secure a new job that can pass a labour market test. Otherwise they will be faced with trying to
leave the country on the restricted outbound flights or trying to obtain different types of visas. Changing to different
types of visas or applying for a new work visa based on new jobs will be impossible if a person is on an interim visa.
Apart from those who need to renew visas, those who currently hold work visas face a significant problem if they lose
their job. Losing a job while holding a work visa can result in a deportation liability arising because the basis on
which the visa was granted no longer exists.
For those seeking residence, the impact of job loss will be significant. If job loss occurs, applicants are obligated to
inform Immigration New Zealand (INZ), and they may no longer be eligible for residence. It will also mean INZ will be
alert to the fact they are no longer able to hold the work visa to perform that job. People in this position will have
not only their residence application affected but their existing status affected, too. That in turn could affect the
visa status of their spouse and children.
Layoffs and business collapses will particularly affect the hospitality and retail sectors and work visa holders in
those sectors. Those on lower skilled visas will find it increasingly difficult to secure work visas if the labour pool
of local candidates swells.
Losing migrant labour and skills may not at first glance appear to be an issue if there is an oversupply of labour
within New Zealand. Many might say it will be a good thing, as it will assist those New Zealanders who are laid off as a
consequence of an economic downturn.
But we all know this pandemic is a temporary situation. Once it is over and businesses attempt to gear back up, demand
for services and products will increase again. If work visa holders and residence applicants have been forced back to
their home countries, it may prove very difficult to re-attract them to New Zealand when this pandemic is over.
People need to remember that international, 21st century skills and labour are highly mobile. If people are laid off,
they will go find other work. Employers will find it very hard to find those skilled workers again later. Where will Air
New Zealand find 3500 staff to crew international routes when things have returned to normal? We can’t expect the
laid-off employees to sit around waiting for Air New Zealand to call when it’s all over.
China is now grappling with this very issue. The factory workers laid off as industry closed have found other work, and
are not necessarily keen to return to their former roles. It’s proving more difficult than expected to restart industry.
Under-estimating the mobility of labour could cost businesses dearly if they don’t attempt to retain skills they have
already found – often after a significant search. When all this is over, we will be competing with other larger
countries with greater resources to try and attract skills and talent back to New Zealand.
Protection of the labour force isn’t just about parochial domestic protection of employment opportunities. It is also
about ensuring we have the skills on board to gear back up quickly when this ends. During and after this crisis we will
still need engineers to help build our roads, teachers to educate our children, nurses to staff our hospitals, and so
on. If the people who have those skills leave the country and we end up trying to fill a vacuum further down the path,
our recovery will be slower and more painful.
We need to consider the impact of this crisis on migrant workers and think about what provision we can make to protect
our skilled labour pool into the future.