Yes Minister!

This week’s blog is part explanation (of a particularly curly part of our visa process) and part testimonial (having successfully navigated that curly part). For some applicants, who have reached the end of the road with their application, the bastion of last resort, the final draw of the bow, the frayed end of the rope is a request to the Minister of Immigration.

But how exactly does a request to the Minister work and what are the chances of it being successful? Well these are tricky questions to answer, but we will do our best. Just bear in mind that if you end up in this situation, it absolutely pays to seek professional assistance - largely because even though anyone can file such a request (technically), not every one should. Knowing whether this is an avenue worth pursuing is not a science but a good adviser will give you a realistic appraisal of your chances and whether it is worth spending the time and money to tackle this particular mountain.

A Ministerial Request

The Minister, being the “big cheese” in the immigration process, essentially has the power to grant anyone, any visa, for any reason. There is in fact a specific section of the Act (Section 61) that allows the Minister to grant people a Visa even if they are here unlawfully. There are a couple of caveats to this, in that the individual can’t have a deportation order in force or be subject to a removal order. For the most part, this power (Section 61) is delegated down to INZ and a specialist team that manages these requests. For most applicants filing a “Section 61” with INZ is their first port of call if they are unlawful. However, even if that process with INZ fails, nothing stops someone going to the Minister under that same section and requesting the same thing. In some cases the Minister can bring a more objective view to the situation, particularly where INZ might not have exercised balanced judgement.

How Does It Work?

Requests to the Minister are incredibly complex things to prepare and you have to have good grounds to make the request.

The Minister’s discretion doesn’t necessarily stop with those who are unlawful. I have assisted applicants to ask for all sorts of things, including waiving the age limited for the Skilled Migrant Category, including children who are too old to be dependent and asking for exceptions to a variety of other Resident and Temporary Visa criteria. The Minister has fairly broad powers in this respect and so if there are good grounds to make the request, it can be a viable avenue. However that doesn’t mean that every situation is worthy and certainly there is no guarantee of success. Remember the Minister has to balance the positives of granting a visa over the negatives and so you have to have a good reason to make such a request.

The actual request itself is made electronically (or you can use the post) and it is usually the Associate Minister who considers these, rather than the actual Minister. In addition, the Minister’s office is staffed with people who will pull together the details, and usually make a recommendation to the Minister, who will then make the final call. So in fact your request is not necessarily being looked at by the Minister personally.

With all of this in mind, making a request to the Minister is not something you want to do on your own. Pleading your case, by yourself can often lead to the request being unbalanced and having outside help, can ensure that your request (if it is worthwhile) is presented in the right way. It is also good to get a second opinion as to whether your request has merit- just because you can, doesn’t always mean you should. You also need to ensure that you have tried all other avenues, because the Minister will often turn away a request, if there is another avenue through INZ, that you haven’t yet tackled.

Making A Request

There is no set formula to making a request with the Minister, because everyone’s situation is different and of course, each person will have a different preference to how they present their arguments. However there are some guidelines, I have picked up over the years, having presented many of these, and achieving a very good strike rate. Not every request I have filed has been successful, but more than 80% have, largely because I chose those battles carefully.

Balancing The Pros & Cons

Preparing a Ministerial request requires balance between the positives and the negatives. It requires skill and experience to be done properly.

Is it worth it?

A lot of people believe they have a case to present to the Minister, but in fact less than half of the people I speak to about these situations, would have the right circumstances. Ultimately your situation has to be exceptional and there has to be a “hook” for the Minister to be able to hang their decision on. This is particularly common for parents, where the children want them to be able to stay here, but there are no immediate visa options. As compelling as that situation might be, these requests are rarely successful, unless there are other factors at play. So before you put pen to paper or fire up the keyboard, think carefully as to whether your request has merit.

What’s in it for New Zealand?

All too often, applicants focus on what is in it for them, yet realistically, the Minister has to consider what is in the interests of everyone and that includes New Zealand. This is balanced by any risks involved. So if you can demonstrate why the Minister’s intervention has a positive effect on New Zealand more generally (whether it be a social benefit, or economic one) that will aid your cause. It is also good to balance your representations and if you have messed something up, take ownership for it, but then demonstrate why having a Visa is going to lead to a positive outcome for you and the country.

Can you prove it.

Whatever you claim in your request has to be backed up by good, solid evidence, although bear in mind that you want to make sure the evidence tells the right story. Letters of support are useful, but not as useful as simple, relevant evidence to explain your case (and to show the benefit in considering the request favorably).

Cut the waffle.

Given the Minister has a lot of these requests to consider, you need to be able to explain your situation clearly and concisely. I have seen plenty of very lengthy, wordy requests full of “hitherto” and “wherefor” which might sound eloquent (and like you have a big brain) but are more about the words, and less about the actual situation. Explain your self clearly, with only the relevant facts and then a clear request as to the solution you are seeking.

There are of course a lot of other considerations when preparing a request to the Minister, but these are some of the key ones. Remember this is not necessarily a process you want to tackle on your own and so having an objective (and experienced) third party to steer the ship is strongly recommended.

Our Story

Now that you know how it all works, we can explain our recent example, where we were able to assist a client in approaching the Minister for intervention. The situation was somewhat complicated (as they usually are), but in this case we had a New Zealand citizen in a relationship with an applicant who had two children - one from a former relationship and one between the NZ citizen and the applicant.

Unfortunately for this couple, when the applicant originally arrived and applied for various visas to stay in New Zealand, she failed to declare her relationship with her NZ partner. Finally, when the couple applied for a visa based on that relationship, INZ penalised her for not having made that relationship declaration when she applied for those earlier visas.

There was actually a very simple explanation for that non-declaration and one that catches a fair few people out. There were also issues relating to the paternity of the couple’s child, which had to be sorted out, but overall it was a bit of a mess and it left mum and the two children in New Zealand unlawfully.

We initially approached INZ with a request under Section 61 of the Act (for those here without a Visa) but we weren’t overly surprised when INZ declined that, given they were essentially arbitrating their own decision on the previous application. Remember however that we needed to be able to show that we had exhausted all available options.

So it was off to the Minister we went, with a very clear explanation as to the circumstances and a relatively simple request to give this family a chance to set things straight. It took a fairly long time to come through, but this week the Minister agreed with our arguments, granting the applicant a six month Work Visa and Student and Visitor Visas for the children. More interestingly, the Minister instructed INZ to disregard their earlier concerns over the non-declaration, for any future applications this client might wish to make. That then makes those future applications a lot easier to deal with.

A massive win for them, even if it required us having to take the path of last resort.

If you are stuck in a visa situation that looks almost impossible to get out of, or you simply don’t know where to go next, get in touch. We can give you a clear explanation as to the options that might be available and the viability of them (even the ones that aren’t obvious).

Until next week!