Official attitude should change with Immigration rules

Official attitude should change with Immigration rules
Alastair McClymont
(INL File Photo)

If not, it would back to Square One for Indian applicants

Alastair McClymont
Auckland, November 20, 2019

When immigration New Zealand (INZ) reinterpreted immigration instructions, resulting in a mass decline of offshore partnership visas, many of who were from India, Immigration Minister stepped and  announced, “I have fixed this.”

Prime Minister Jacinda Ardern last week announced that her expectations would be that INZ return to the status quo.

Amendment issued

On Tuesday, November 19, 2019, INZ released an amendment to the immigration instructions around culturally arranged marriage visas.

Has the government fixed this? Is this now a return to the status quo? Reading the new immigration instructions around culturally arranged marriage visitors visas the answer is likely to be, No.

Here is why.

The problem previously was that for the last 10 years, INZ had been adapting immigration instructions to reach a pragmatic, common-sense solution, which took into account the cultural complexities of partnerships throughout the world.

Visa backlogs continue

A massive backlog in partnership applications began to build at the Mumbai and Hamilton branch offices. Immigration managers then undertook this reinterpretation of immigration instructions which had the practical effect of clearing the visa backlog.

The visa backlog still exists and we now have amended immigration instructions to be applied to that massive visa backlog.

Therefore, it is now back to those same immigration managers who tightened the immigration instructions leading to mass declines of partnership Visa applications to now apply the new immigration instructions.

Choice of interpretation

Those immigration managers can choose to interpret those immigration instructions broadly, fairly and in consideration of the multitude of cultural complexities that they encounter in applications or they can interpret the immigration instructions strictly and use them to again revert back mass declines of offshore partnership Visas.

The new immigration instructions around culturally arranged marriages requires applicants to provide “substantive evidence” of a marriage that follows an identified and recognised cultural tradition.

This substantive evidence includes “communication between the parents of the couple” and “documents indicating public recognition of the arrangements” and “confirmation from independent sources that such arrangements are accordance with the cultural custom of the parties concerned.”

The rejecting habit

Now, keep in mind that immigration officers have made it their habit to reject written statements from immediate family members as having limited evidential value on the grounds that these statements are not independently verifiable.

So, if instructions from immigration managers to the visa officers are that statements from family members are of limited evidential value, and the new immigration instructions require “substantive evidence” of communication between the parents of the couple, then what do they expect this evidence to look like?

If this substantive evidence of communication between the parents of the couple needs to be something independently verifiable, then is there an expectation that copies of letters, emails and telephone call records be provided to demonstrate discussions between the parents of the couple regarding the arrangements for marriage?

Remember, most of the parents of couples in arranged marriages and India will be at the very least in their 40s if not significantly older. They grew up without email, without cell phones and in what is predominantly an oral culture. Simply put, they just go and talk to people.

An impossible burden

How does an applicant provide substantive evidence which is independently verifiable that the parents of the couple went and talked to each other about arranging a marriage?

Its an almost impossible burden.

How does an applicant provide documents indicating public recognition of the arrangements? Do the policymakers believe that engagement notices are placed in the local newspaper?

Will applications now simply be declined on the grounds that there is no confirmation from an independent source that the arrangements are in accordance with the cultural custom? It would certainly appear so. What does this confirmation look like? Does every single application have to include a letter from a community leader or priest confirming that the arrangements are in accordance with the cultural custom?

Culturally different officers

Visa officers in particular based in Mumbai know what a cultural custom looks like, yet the immigration instructions are telling them that the application for a visa can be declined unless confirmation from an independent source is provided, despite the other evidence possibly being readily obvious.

Further, if an application is declined on the grounds of inadequate evidence, a very common outcome, the applicants do not have a second chance to strengthen the evidence and resubmit the application because under the new instructions an application for a culturally arranged marriage visa must be made within three months of the wedding.

So, how these new immigration instructions are to be interpreted are now left back in the hands of those very same immigration managers who made the decision to throw out the pragmatic common-sense approach to partnership visa processing in the first place.

Is this then the status quo that the Prime Minister was referring to? Giving power back to immigration managers to wreck havoc with people’s lives in order to achieve a reduction in the visa backlog.

The real risk

What has the Immigration Minister fixed exactly? The suspicion here is that what has been fixed is a removal of the heat being placed on his department and his government by the Indian community and the news media.

There is a very real risk that applicants will continue to suffer and the problems will continue to plague immigration New Zealand unless immigration managers make a sudden U-turn and decide to apply the policy equitably and fairly or unless Shane Jones again comes to the rescue and tells the Indian community that if they don’t like it they can get back on the first plane to where they came from, which may again spark the media’s interest in this story.

Alastair McClymont is an Immigration Specialist at McClymont & Associates, Barristers & Solicitors based in Auckland. He has been writing for Indian Newslink since the past 20 years and is a long-time friend of the Indian community.

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