2014-Jul 04: Status of Children born while their parent(s) hold interim visas

Visa Pak 169: Clarification on the status of children born in New Zealand to parents who held interim visas at the time of the child's birth.

Visa Paks

4 July 2014

Status of Children born while their parent(s) hold interim visas

This advice clarifies the status of children born to a parent or parents who have interim visas at the time of the child’s birth.

Instructions

Instructions are clear that the status of the child is dependent on the immigration status of the parents at the time of the persons birth in New Zealand [A17.5.1(b)ii].

The Immigration Act 2009 provides that a person born in New Zealand on or after 01 January 2006 who is determined not to be a New Zealand citizen is deemed to have the most favourable immigration status of either or his or her parents at the time he or she was born [A17.1].

Where both parents held interim visas, the person is deemed to hold an interim visa of the duration of the unexpired period of the visa of the parent whose interim visa has the longest unexpired period [A17.5(v)].

Parents may attempt to include their newborn child in the substantive visa they had under consideration at the time the interim visa was granted. However this is not possible, because under section 80 of the Immigration Act 2009 a person who has an interim visa may not apply for a visa.

Other parents may not be aware that they need to approach an INZ office to regularise their child’s status.

This advice sets out the procedures to follow in these circumstances.

Action

Status of Interim Visa

The interim visa for the child remains valid through to the original expiry date. For example, if the parent(s) originally held interim visas valid until 20 December 2014 the child would also be granted an interim visa valid until 20 December 2014. This does not change even if the parents are granted substantive visas in the interim.

If the parent’s substantive visas are declined, the child would also continue to hold an interim visa until the original expiry date.

This is because the validity of the visa is linked to the visa held by the parent(s) at the time the child was born not their subsequent visa status.

Advising the parents of options for the child

If you are assessing an application for the parents of a child born after the application was lodged, and know of the birth of a child to those parents, it is best practice to contact the parents and ask whether they have all the documents necessary to make an application for the child. If they do not, please ensure that you advise them that they will need to contact the office once the child has the required documents to prevent that child from becoming unlawful at the expiry of the interim visa. Please also ensure you tell them the date that the child’s interim visa will expire and that this will also expire if the child leaves New Zealand.

Document that you have advised the parent(s) about the status of their child, including the date when any interim visa will expire, in AMS notes.

Regularising the immigration status of the child

As explained above, there is no provision under the Immigration Act for a person who has an interim visa to apply for any further visa (section 80). Therefore, the only option to regularise the status of the child, is for the power under section 79(5) of the Immigration Act to be used to grant a temporary visa to a person prohibited from applying for a temporary visa under section 79(4).

This power has been delegated to Immigration Officers holding Schedule 2 delegations.

In practical terms, create a separate application for the child in AMS and make clear notes that the child has been approved using the delegated powers under section 79(5).