2016-Jun 03: U8.20.1 Dependent children of Essential Skill work visa holders

Visa Pak 262 - Clarification for staff on when dependant children could be eligible for student visa as a dependant of a worker.

Visa Paks

3 June 2016

U8.20.1 Dependent children of Essential Skill work visa holders

U8.20.1 indicates that dependent children of Essential Skills (ES) work visa holders can only be granted a ‘dependant of a worker’ student visa if a minimum income threshold (currently $36,850.44) is met.
In some cases the ES work visa holder will not earn enough to meet this minimum income threshold but they have a partner on (or applying for) a partnership-based work visa. Operations Support has recently been made aware of two differing interpretations of U8.20.1 being applied in this situation:

  • Declining the student visas – although the children can also be considered ‘dependent children of the open work visa parent’ (for which there is no minimum income requirement), they are also still ‘dependent children of the ES work visa holder’ and therefore the minimum income requirements still apply
  • Approving the student visas – on the basis that the family/lawyer/adviser has indicated that the children are applying solely as being dependent children of the open work visa parent.

We can confirm the first interpretation (declining) is the correct interpretation.

A dependent child is defined under the Immigration Act 2009 as follows: ‘in relation to any person, means a child under 18 years of age who is not married or in a civil union and who is dependent on that person, whether or not the child is a child of that person’.

It is not consistent with U8.20.1 if the second interpretation (approving) is applied as it essentially ignores the fact the children are also dependent children of the ES work visa holder.

Additionally, an open work visa is granted on the basis of partnership with a work visa holder (or a New Zealand citizen/resident). The open work visa relies on the validity of the ES work visa; therefore it is inconsistent to ignore this reliance when looking at dependent children requirements.

The first interpretation (declining) is also consistent with the overall intent of requiring a minimum income threshold so as to ensure the parent(s) (who under ES may potentially be employed in lower level/paid occupations) can financially afford to look after their children whilst in New Zealand. There is no guarantee that a person who holds an open work visa will be able to obtain sustainable employment enabling them to support their children.

Note: if the partner is also the holder of an ES work visa, then their income may be combined to meet the minimum income threshold.

Action

Please discuss with your team(s) and ensure that the correct interpretation of U8.20.1 is being applied.