An Amnesty for Overstayers

Before anyone gets too excited, the title of this article is not an announcement of an actual amnesty, but instead a discussion on whether such an amnesty, for those unlawfully in New Zealand would be a good idea. The prospect of something like this was widely discussed last year and in fact, the former Government (Labour) announced a proposal to regularise unlawful applicants in September, but only if it was able to remain in power for another term. That never happened and of course they were unable to fulfil that pledge, and the majority party in the current coalition Government (National) have already ruled it out.

However politics is a fickle thing and whilst National might have decided its a no-go for now, the prospect of an amnesty for people here unlawfully, tends to pop up periodically, so there is every chance that we will see the discussion surface again in the next three years.

It is hard to pin down exactly how many people are in this unfortunate situation, however estimates from 2023 place the figure at somewhere near 14,000 - that is roughly the size of Oamaru, Tokoroa or Te Awamutu, all reasonably populated and busy towns in New Zealand. Many of these people are either working illegally and not paying tax, some might be paying tax but still working illegally and others wont be working at all (largely supported by friends and family). They are a varied group, consisting of people from all over the world, although it might surprise you to learn that people from places like the UK and US feature within these statistics as well. There are also “degrees” of overstaying - some might have only recently become unlawful and have every intention of fixing their situation, while others have been here for decades, having established themselves firmly in New Zealand, just without the right Visa to do so.

To consider making all of these people or even some of them lawful is a very contentious issue, crossing over political boundaries, impacting heavily on societal needs and with strong economic considerations as well. There are, as with any visa process, pros and cons to this.

We see the impacts that being unlawful can have on a person and we also can see both sides of the story in terms of those that do truly deserve a second chance and then others who need to simply accept that they don’t belong here. It is a subjective, emotional and challenging issue.

Living In Fear

Living in a country without the right to legally be there is like living in a permanent state of limbo.

Hiding in Plain Sight

For anyone living in New Zealand without a valid visa, there is no such thing as “normal”. Just imagine for a second, living in a situation where any of the daily tasks we take for granted could lead to you being physically removed from your home, your job and your life. Going to the doctor could raise a red flag, paying your taxes could set off alarm bells, even just being in the wrong place at the wrong time, could tip someone off and have the authorities knocking on your door. In fact none of these things have to happen as the Government already knows you are here unlawfully, they might just take a while to find you.

I doubt anyone would want to be in this situation and nor would they want to inflict that on anyone else, yet for a variety of reasons, this is exactly the boat that many people (roughly 14,000 of them) find themselves in, here in New Zealand.

Some of these people have been here for a very long time and the circumstances that lead to them becoming unlawful are as varied as the people themselves. They may have fled their home country in search of a better life, unwilling or unable to leave New Zealand. They may have close family here and wish to stay, they may have only recently lost their right to be here or have been here for decades.

A lot of these people are actually very productive members of our society, working in jobs that no one else will do, spending money, putting their children through school or caring for relatives. In short, trying to identify the causes as to why people become unlawful is impossible and equally trying to identify the solution is just as challenging.

When the Labour Government announced their plan for an “amnesty” (they didn’t call it that) in 2023 and whenever any other Government before it, has done the same thing, the reception has been very mixed. Generally their is broad support from the migrant community, although it must be said, never unanimous as there are always sections of that group who contest it. There is broad opposition from the majority of the citizens and residents group and there are mixed reactions from employers.

It is possibly the most divisive and complicated of all Visa situations to try and address and the cynic in me wonders whether or not Labour made this announcement, knowing that in reality they would never be able to actually deliver on it.

The issue however is that for the people in that situation (or at least most of them) the struggle is very real. And for those that genuinely cannot leave and need to find a way to remain here, living in New Zealand without the legal right to do so can be a torturous existence.

The Positives…

An amnesty for overstayers could have a very positive impact, socially and economically.

Why An Amnesty Could Work

There are plenty of reasons as to why an amnesty could work and improve the lives of the people in that situation, but also have a wider positive impact on the economic and social fabric of New Zealand. Many of these individuals are already contributing to New Zealand in terms of their skills, however the financial benefit may be lacking (they don’t pay tax for fear of being caught ). That then often leads to them taking jobs below their skillsets or worse being exploited because employers (who might be former migrants themselves) take advantage of the situation they are in.

Bringing these people on to the books officially would potentially mean we have some really talented and useful people that can legitimately be engaged in the workforce. Adding to this, their children will benefit from the security that being lawful provides and we raise the overall mental health of a large population of people.

There is also a temporary reduction in compliance costs because we effectively wipe the slate clean (or mostly clean) and have less people to monitor, follow up and track down. Compliance can then focus more energy in to preventing people from becoming unlawful in the first place.

Socially we raise the bar, by allowing these people to become included in society, formally. We also reduce health costs potentially because instead of dealing with these individuals when any medical situation they have, has become so bad, they have to seek help, they will be able to seek that help far earlier on.

Overall it is better to have people here legally, than to have them hiding in the shadows - on that, I don’t think anyone would disagree.

The Negatives

The reality is that an amnesty would be too hard to construct, and politically challenging to sell.

Why It Probably Won’t Happen

The word “prickly” springs to mind when thinking of how any amnesty would be received by the NZ public, not to mention the complexity in creating the criteria for it. When Labour proposed it last year, it was based on those who had been here for 10 years…great, but why ten? Five years is arguably long enough to have set-down roots. What about those who ended up unlawful because they were a victim of exploitation, who surely would have more cause to be granted clemency than someone who had just decided NZ was a nice place to live. Then there are those who have partners here, and thus a stronger need to remain, those who have good jobs, etc. The problem is that granting amnesty to a class of people (in this case unlawful) still needs to be metered out based on some sort of criteria. Whether it be time spent, links, contributions etc., all of these measures create inconsistency and while you might make one group happy, invariably another group will not be so pleased.

There is also the impact it has on future compliance and the migrant population who have done things by the book. A widespread and far-reaching amnesty is essentially signaling to the world, that if you come here and stay long enough, chances are you might be able to stay forever. Realistically it wouldn’t see a major spike in illegal arrivals but it does have a negative impact on our brand as a destination for the highly skilled.

It also sends a negative signal to those migrants who have done the right thing, stayed legal, spent the money and jumped through the hoops who are either stuck without a pathway to Residence or sitting in queues patiently waiting. For them, to see a large pool of unlawful applicants be given a free pass, would be a fairly bitter pill to swallow.

Politically its a nightmare, because of all of the above issues. It might work well in a pre-election spin (particularly if your party is on a downward slide) because it has the possibility of capturing votes from the family of those here unlawfully. However as National have been quick to comment - it is not on their list. However political winds change very quickly and while there might not be an appetite for this from our current Government, those winds might change direction over the next three years.

Lastly, it is only ever a temporary solution. It’s like weeding your garden…you can dig the whole lot out and start fresh, but eventually those little green shoots will be popping up here and there. We can clear out the current group (or most of them) but over time, we will see people sneaking past the gates, and disappearing in to the visa-less wilderness.

For all of these reasons, and in my professional opinion, I doubt that we will see an amnesty (or whatever you might call it) for unlawful applicants any time soon. Despite the potentially very positive outcomes, it is a very difficult, divisive and temporary thing. Given our number of unlawful migrants is relatively low (there are benefits to being an island nation at the bottom of the earth), it isn’t a problem that is currently out of control or can’t be managed.

Personally and as much as I think many of these individuals are deserving, I think it has more negative impacts than positive. That might sound a bit strange for someone in my position to say, but the immigration process is not something to be taken lightly. I would however suggest that a better process could be designed, for those looking to rectify their status (and who deserve a second chance) as the current system can be very inconsistent and difficult to navigate. We need to create disincentives to people wanting to stay here unlawfully, rather than carve out pathways that suggest we have a soft approach to this.

Need Help?

If you are here unlawfully, then there are options to consider, although those options are often limited and always require specialist assistance. Our advice, to anyone that is here without the appropriate visa, is to start with identifying what your options might be and working towards either trying to become lawful again or preparing to leave.

Our team has considerable experience in advising people on their status in New Zealand, including the processes and pathways available for those here unlawfully. If you or someone you know, needs that sort of help, contact us today for a confidential, initial discussion.

Until next week.