2018-Jun 22: Situation of secondary applicants included in residence applications if principal applicant dies

Visa Pak 362 - Advice for staff about the situation of secondary applicants included in a residence application when the principal applicant dies.

Visa Paks

22 June 2018

Situation of secondary applicants included in residence applications if principal applicant dies

The principal applicant (PA) is the person who will primarily be assessed for eligibility against the applicable residence instructions. Normally therefore the PA is the person with the attributes most likely to meet the criteria for the residence category they are applying under. Obviously this is more critical under the Skilled/Business stream categories than it is under Parent Category, for example, where both parents will usually be equally eligible. While as provided by regulations 20(5) and (6) of the Immigration (Visa, Entry Permission, and Related Matters) Regulations 2010 a PA may choose to include their partner and/or their dependent children in their residence application such secondary applicants (SAs) are essentially applying under Partnership Category or Dependent Child Category and are reliant on the PA meeting the applicable residence instructions to gain residence. 

Unfortunately PAs sometimes die and the primary purpose of this Visa Pak item is to provide guidance for staff on what to do in such tragic cases. This varies depending on what stage processing of the residence application has reached. It also means that any SAs included in the application will not have appeal rights. There are a number of relevant New Zealand Immigration and Protection Tribunal (IPT) appeal decisions on this, the precedent one being EG (Parent) [2013] 200834.

The death of any applicant included in a residence application, but more so the PA, is a material change in circumstances that applicants are required to inform Immigration New Zealand (INZ) of. Evidence of the death should be requested if not supplied. As the IPT observed in EG (Parent] at [15], immigration status is a personal status which does not survive death.

PA dies before date of final decision on application The application ceases with the death of the PA and will need to be lapsed. Currently the most appropriate decision code available in AMS to use is L – ‘Declined Lapsed’ which is for use when an application has been lapsed and is not going to be pursued further by the customer and INZ.

As only the PA has a right of appeal and that right ceases on the PA’s death, we must not advise SAs that they have a right of appeal to the IPT as it has no jurisdiction to hear them. Nor can SAs included in the application substitute for the PA in the existing application. However, in some situations such as the examples described below, we can consider enabling a SA to become a PA by raising a fresh application and waiving fees and other mandatory lodgement requirements appropriate to the circumstances.

  1. Partnership Category application made by PA spouse of residence class visa holder including SA 12 year old child of the PA and New Zealand supporting partner. PA is tragically killed in a traffic accident. It would be appropriate to facilitate a Dependent Child Category application for the child.
  2. Parent Category application with husband as PA and wife as SA partner. They are sponsored by their biological son meaning either parent could have been the PA as is reflected in their Invitation to Apply. Sadly the PA husband/father suffers a stroke and dies. It would be appropriate to facilitate a Parent Category application for the wife/mother.

PA dies after date of final decision on application
If the application was declined and the PA had lodged an appeal with the IPT before their death which is awaiting a decision, the IPT no longer has jurisdiction to consider the appeal and cannot allow a secondary applicant to replace the PA. Any secondary applicant wishing to pursue residence would need to lodge a fresh application and qualify in their own right.

If the application was approved and all applicants granted residence class visas as provided by instructions at R5.55 and R5.66 but the PA is offshore, and had not made their first entry before their death, as that is a material change in circumstances which could affect a decision to grant entry permission the applicants are required to inform INZ.

Depending on the circumstances it may be appropriate to consider cancelling the residence class visas as provided by section 65 of the Immigration Act 2009.