2014-Oct 24: Issuing visas for childcare

Visa Pak 185: Best practice guidance for Immigration Officers on how to assess applications for the purpose of childcare

Visa Paks

24 October 2014

Issuing visas for childcare

This article provides some best practice guidance on how to assess applications where the purpose of the visit to New Zealand is for childcare.

Process

When officers are assessing applications where they believe the client is travelling to New Zealand for the purpose of childcare the officer will ultimately need to look at the person’s primary purpose and determine whether this is a nanny/au pair type situation or is it a family member applying to provide short term assistance while visiting family in New Zealand?

As part of this assessment officers will need to consider the following factors:

  • the length of stay
  • the relationship to the family in New Zealand
  • the situation of the family in New Zealand
  • declared purpose of the visit.

If you determine that it is a nanny/au pair type situation then the client will need to apply for a work visa. Essential Skills would be the most appropriate category of work visa for a nanny/au pair. Assessing the application under essential skills will allow the officer to ensure that the client is being offered appropriate wages and working conditions and the officer can also make sure there are no New Zealand citizens and residents available to do the work.

Generally, a close family member such as a mother or sister who is travelling to New Zealand for a short term visit (up to three months) to assist with child care following the birth of a child would be acceptable provided all other aspects of instructions have been met. In this case the purpose of the visit fits within the definition of family and social visits. At the other end of the scale, a more distant relative such as a niece or a second cousin travelling to New Zealand for a period of up to nine months to look after children while their parents work could not be approved under visitor visa instructions as this is clearly a nanny/au pair situation.

There will be a whole range of scenarios that fall between these two extremes and it is up to the officer to determine whether the person is travelling to New Zealand to provide short term assistance or if they will be engaged in a nanny/au pair type situation.

Definition of Work – W2.2.1

Caution should be exercised if you are looking at the definition of ‘work’ at W2.2.1 of the Ops Manual as part of your assessment. If it looks like a nanny/au pair type situation clients may claim that it is not work because they are not being offered any gain or reward and the accommodation and board they are receiving is part of the sponsor’s obligations under the sponsorship agreement. The counter argument to this is that if the cousin (for example) is in New Zealand for an extended period of time looking after children while the parents work and not receiving any reward other than board and accommodation then the cousin is effectively being exploited. They are clearly working but not receiving any of the benefits workers in New Zealand are entitled to and also the labour market is being undermined as it is likely there are New Zealand citizens or residents who are available to undertake this work.

Limited Visas

If you are going to approve a visa for short term assistance while visiting family in New Zealand a visitor visa will usually be fine. Local officers have the best knowledge of their market and will know when a limited visa should be issued to manage a bona fide risk. A limited visa will not manage the risk of someone working as a nanny/au pair once they arrive in New Zealand. If you have concerns that the client will be working as a nanny/au pair then you should consider declining the application as the purpose of their visit does not fit within the definition of ‘lawful purpose’ at V2.1.1 of the Ops Manual.

Limited visas should not be issued to facilitate entry for the purpose of working as a nanny/au pair. Immigration Instructions L2.30 state express purposes include, “any other purpose other than employment”. Also, the note at L1 of the Ops Manual states, “Applications for limited visas for work may only be considered if the applicant has an offer of employment from a Recognised Seasonal Employer”.

Ex-pat Families Returning to New Zealand

If an ex-pat family is returning to New Zealand and wants to bring their nanny, officers will need to look at factors such as the length of stay and the purpose of their visit to New Zealand.

In a case where the family is relocating back to New Zealand and want to bring their nanny to live with them then they will need to apply for a work visa in which case the most appropriate category would be Essential Skills.

Follow the advice above.