NZ resident with travel conditions expiring in few months, currently choosing not to return until safe to travel

[Famed]

Hello all,

Asking on behalf of a friend:

He and his wife are NZ residents with travel conditions expiring in June 2020. Infant is an NZ citizen.

Owing to the current travel restrictions, my friend is deferring his trip to bring his wife and infant back to NZ for the next few months from India.

His questions are:

• What is the way forward for him and his to apply for a permanent residency, considering he is still in NZ but wife is in India and it's unsafe to travel especially with an infant? Infant is NZ citizen anyway so no problems there.
• Can she apply for permanent residency from abroad owing to the current travel concerns, especially since she has an infant? Are there any exceptions to the rule in these situations?
• If she can only apply for variation of travel conditions, does it have to be only after my friend applies when he is currently in NZ or she can apply now itself to be on the safer side owing to visa processing timeframes? When is the best time to apply if it's VOC for residence visa?
• Since my friend completes 2 years in June, can he only apply for PR in June or alternatively apply for variation of condition if he's travelling abroad before June?

Any info appreciated!

Thanks!

[Kelerei]

The three possibilities are a) Permanent Resident Visa, b) variation of travel conditions or c) second or subsequent Resident Visa. It makes no difference whether one applies for these onshore or offshore.

Firstly, one must keep in mind that eligibility for any of these three possibilities is dependent on the eligibility of the principal applicant on the original Resident Visa application. Usually, the only requirement for any non-principal applicant is that the principal applicant meets all relevant requirements, though there are scenarios where a non-principal applicant may be assessed in his/her own right. See RV1.20, which deals with the eligibility of non-principal applicants, and note the provisions requiring a secondary applicant to be assessed independently of the principal applicant (RV1.20.1 to RV1.20.20) in case these apply.

Principal applicants may be granted a Permanent Resident Visa if (per RV2.5):

• they either:
  
  • hold a Resident Visa, and have held that Resident Visa continuously for at least 24 months at the time of application; or
  • have held a Resident Visa in the three months before the application is made, and had held that Resident Visa continuously for at least 24 months before it expired (provided RV1.25 does not apply); and
• their first day in New Zealand as a resident (R5.66.5(b)) was at least 24 months before the application is made; and
• they can demonstrate a commitment to New Zealand by meeting the requirements set out in any one of:
  
  • RV2.5.1 (Significant period of time spent in New Zealand); or
  • RV2.5.5 (Tax residence status in New Zealand); or
  • RV2.5.10 (Investment in New Zealand); or
  • RV2.5.15 (Establishment of a business in New Zealand); or
  • RV2.5.20 (Base established in New Zealand); and
• they have met any conditions imposed under section 49(1) or section 50 of the Immigration Act; and
• they meet character requirements for residence (see A5).

Principal applicants may be granted a 12-month variation of travel conditions if (per RV3.5):

• they meet the requirements set out in either RV3.5.1 (Time spent in New Zealand) or RV3.5.5 (Tax residence status and limited time spent in New Zealand); and
• their first day in New Zealand as a resident (see R5.66.5(b)) was at least 12 months before the current application for a variation of travel conditions was made; and
• they continue to meet any conditions previously imposed under section 49(1) or section 50 of the Immigration Act 2009; and
• RV3.1(d) does not apply.

Principal applicants may be granted a special 24-month variation of travel conditions in the following cases:

• The principal applicant has investment conditions under Section 49(1), continues to meet them, and it has been at least 24 months since the principal applicant's first day in New Zealand as a resident (RV3.15)
• The principal applicant is an Australian citizen or permanent resident (RV3.20.1)
• The principal applicant is the partner of a New Zealand citizen and does not qualify for a Permanent Resident Visa (RV3.20.5)
• The principal applicant is seconded overseas as part of his/her New Zealand employment (RV3.20.10)

Principal applicants must, on application, be granted a 14-day variation of travel conditions if (per RV3.10) the person is in New Zealand as a resident, and either does not qualify for a Permanent Resident Visa or does not qualify for a variation of travel conditions for a longer duration.

A second or subsequent Resident Visa may be applied for if the holder left New Zealand after the expiry of their travel conditions, or was outside of New Zealand when the travel conditions expired (RV4.5). These are determined as follows (RV4.10):

• An applicant for a second or subsequent Resident visa may be granted a second or subsequent Resident Visa if:
  
  • the principal applicant would have met the criteria to be granted a variation of travel conditions under RV3.5, RV3.10 or RV3.15 (linked and quoted above) had they applied for it on the date the current applicant’s Resident Visa expired and those travel conditions would still be valid on the date the application for a second or subsequent Resident Visa was made; or
  • the principal applicant would have met the criteria to be granted a Permanent Resident Visa had they applied for it on the date the current applicant’s Resident Visa expired and that date was less than 24 months before the date the application for a second or subsequent Resident Visa is made; or
  • the principal applicant meets the criteria for one of the special provisions for a second or subsequent Resident Visa (RV4.20).
• A non-principal applicant may be assessed independently of the principal applicant if the instructions of RV1.20.1 to RV1.20.20 apply.
• Applicants for second or subsequent Residence Visas must meet character requirements for residence (see A5).
• An application will be declined if it falls under any of the criteria set out in RV1.25.
• Applicants who have failed to meet any conditions imposed under section 49(1) or section 50 of the Immigration Act 2009, must be declined whether or not they are otherwise eligible for a second or subsequent Resident Visa.

You may also wish to refer to the INZ 1176 guide, which explains all of the above in a far less technical form.

[JandM]

The first thing I would ask is, was your friend the principal applicant and his wife secondary applicant on the original application for Residence?

IF SO, then if HE meets the requirements for PR (as in Kelerei's first paragraph above, or on this factsheet, see all the tabs https://www.immigration.govt.nz/new-...-visa#overview), then his wife will get PR when or after he does. She will not have to meet any criteria herself - he will have done it on behalf of them both.

(IF NOT, and if the wife was principal applicant on an application of her own, then SHE would have to meet all the criteria, and all the information Kelerei supplies above would need to be considered.)

Assuming that she was secondary applicant on his application, then he can include her in his application for PR. Once PR is granted, they would be given instructions about where to send or show her passport if necessary. It does not matter that she is at present in another country.

Can I include my family in
my application?
If you are the principal applicant you can include
your partner and children aged 24 and under in
your application if they were also included on
your original resident visa application. If you do
include them in your application, they do not
need to complete separate applications forms or
pay separate fees.

INZ 1176 Guide.

Your question 3 does not apply.

Nobody can apply for PR early. That is, your friend has to wait until he has spent 24 months with an active residence visa, AND has met all the other criteria for PR, before he can apply. If he wanted to travel and return to NZ before then, he could do so on his existing travel conditions. If he thought he might come back after his travel conditions expire, then yes, he would have to have variation of conditions.

HOWEVER, given the recent announcement that anyone entering NZ will now be required to self-isolate for 14 days immediately upon arrival https://www.immigration.govt.nz/abou...e-inz-response, I expect that your friend is now less likely to consider travel.

[Famed]

Thanks Kelerei and JandM.

My friend was the principal applicant and their residence visa was approved jointly.

So does this mean, assuming my friend will travel in the month of June 2020, he can apply onshore (while his wife is in India on expired travel conditions), he can apply for a PR directly and there is no need for variation of conditions required?

He is confused since he he read some info stating that if the resident visa holders travel conditions have expired and they are offshore, they will not be able to re-enter NZ.

If this is true, let's say he travels to India in perhaps May, can he and his wife can apply for PR directly from India even though travel conditions have expired? Alternatively, can he travel out of NZ in May with his resident visa almost expiring, he then applies for PR with wife (he is onshore and she offshore), he then flies out of India awaiting the PR decision?

Thanks for any clarifications.

[JandM]

My friend was the principal applicant and their residence visa was approved jointly.

Noted.

So does this mean, assuming my friend will travel in the month of June 2020, he can apply onshore (while his wife is in India on expired travel conditions), he can apply for a PR directly and there is no need for variation of conditions required?

Whenever your friend meets the conditions for PR - ALL the conditions - he can apply for PR for himself and his wife, no matter where she is in the world. If she is not intending to travel to NZ before receiving PR, she does not need to apply for travel conditions.

Notice, nobody needs travel conditions in order to LEAVE New Zealand. "Travel conditions" is just a (rather strange) description of the permission granted to residence visa holders to enter the country.

It sounds from what you say here that your friend might be planning to travel to India while waiting for his PR application to be processed. If he does this, he will need to make it very clear to INZ where he can be contacted at all times, in case there is any extra information that they need from him during processing.

He is confused since he he read some info stating that if the resident visa holders travel conditions have expired and they are offshore, they will not be able to re-enter NZ.

They will not be able to re-enter NZ UNTIL THEY HAVE GOT ANOTHER VISA - either PR, or a Second or Subsequent Residence visa. As long as they are eligible for one of those and they apply in time, once they have got that, they will then be able to re-enter. See the bottom paragraph here https://www.immigration.govt.nz/new-...anent-resident, and the links to more explanations.

If this is true, let's say he travels to India in perhaps May, can he and his wife can apply for PR directly from India even though travel conditions have expired? Alternatively, can he travel out of NZ in May with his resident visa almost expiring, he then applies for PR with wife (he is onshore and she offshore), he then flies out of India awaiting the PR decision?

The answers to these queries should be clear from the above.

[Famed]

Thanks a lot JandM for all your help.

My friend is in NZ owing to government travel restrictions. His wife (NZ Resident with travel conditions) and child (NZ Citizen) are still in India owing to the lockdown there and suspension of all International flights.

In view of this, can he apply for PR in the month of June 2020 with him being here in NZ but wife in India within a single application form submitted in NZ? His wife and him have fulfilled the conditions of being in NZ 184 days each year (in the past 2 years ending June 2020) preceding his future application in June 2020.

Also, are passports needed at the time of his submission? I am not sure if he has certified copies of the application for his wife assuming that certified copies are acceptable.

Awaiting your response.

Thanks in advance!

[JandM]

In view of this, can he apply for PR in the month of June 2020 with him being here in NZ but wife in India within a single application form submitted in NZ?

See above.

Whenever your friend meets the conditions for PR - ALL the conditions - he can apply for PR for himself and his wife, no matter where she is in the world.

Also, are passports needed at the time of his submission?

On the Process tab of the INZ factsheet https://www.immigration.govt.nz/new-...t-visa#process, there are links to the relevant form and guide. The guide states (what always used to be the case) that passports should be submitted, but more recently, INZ has moved to a more flexible approach. This page https://www.immigration.govt.nz/know...-question-7058 shows that they can quite often use JUST a certified copy, while reserving the right to need to see the passport in some cases before the final issue of the visa. Since he's not going to be able to apply till June, by then please God conditions may have improved, and his wife may be able to get a certified copy of her passport, if the husband doesn't have one. But all this will have to be worked out at the time, in the light of what offices are or are not open, and what the NZ government instructions are.