R2.1 Who may be included in an application (19/08/2013)

See also Immigration (Visa, Entry Permission, and Related Matters) Regulations 2010, Reg 20

1. Each principal applicant (see R2.1.1 below) must make a separate application.
2. The following people may be included in a residence class visa application, regardless of whether they are living in the same country as the principal applicant:
   1. The partner of a principal applicant (see R2.1.10 below); and
   2. The biological or adopted (see R3) dependent children of the principal applicant and/or partner (if the partner is included in the application) (see R2.1.30 below).

R2.1.1 Definition of 'principal applicant'

1. The principal applicant is the person who is declared to be the principal applicant on the residence class visa application form.
2. When the application is assessed, the principal applicant will be the person first assessed against the criteria in residence instructions, unless the instructions indicate otherwise.

R2.1.5 Definition of 'applicant'

An applicant is a person included in an application for a residence class visa and includes the principal applicant and secondary applicants (if any). All persons included in an application will be individually assessed against the criteria for the grant of residence in the residence instructions that apply to them.

R2.1.10 Definition of 'partner'

1. For the purpose of inclusion in a residence class visa application, 'partner' means a person who:
   1. is legally married to the principal applicant; or
   2. is in a civil union partnership with the principal applicant; or
   3. is in a de facto relationship with the principal applicant.
2. References to 'partner' in residence instructions mean 'partner' as defined in (a) above.
3. A partner who does not meet the criteria in (a) above may not be included in a principal applicant’s application and must apply for residence as a principal applicant in their own right.

R2.1.15 When may partners included in an application be granted a residence class visa?

1. For a 'partner' included in an application to be granted a residence class visa an immigration officer must be satisfied that they meet 'partnership' instructions which are:
   1. that the principal applicant and partner are living together in a genuine and stable partnership (see F2.10.1); and
   2. that the couple have been living together in such a relationship for 12 months or more at the time the application is assessed; and
   3. that the partnership meets the minimum requirements for the recognition of partnerships set out at F2.15 in that:
      • the couple were both aged 18 years or older at the time the application for residence class visa was made, or if aged 16 or 17 years old have the support of their parent(s) or guardian(s); and
      • the couple have met prior to the application being made; and
      • they are not close relatives (see F2.15(d)).
2. When assessing if the duration of the partnership requirement in a. ii above is met immigration officers may include any period immediately prior to any marriage where they are satisfied the couple was living together in an interdependent partnership akin to a marriage.

R2.1.15.1 What happens if an immigration officer is not satisfied that a couple are living together in a partnership that is genuine and stable?

If an immigration officer is not satisfied the principal applicant and partner included in the application are living together in a partnership that is genuine and stable, then:

1. the partner will not be granted a residence class visa; and
2. if the principal applicant is reliant on:
   1. the attributes of their partner included in the application; or
   2. the family relationship of their partner included in the application

   those attributes or relationships will not be taken into account when determining eligibility of the principal applicant under residence instructions.

Examples:
~ Under the Skilled Migrant Category (see SM10.10(c)) a principal applicant's partner's skilled employment in New Zealand will not qualify for points.
~ Under the Sibling and Adult Child Category instructions (see F6.1(c)) where a principal applicant and partner included in the application have combined income as evidence of meeting the required minimum income requirement only the principal applicant's income may be taken into account when determining the total family income per year.

R2.1.15.5 What happens if the partnership is considered to be genuine and stable but is less than the 12 months required?

1. If an immigration officer is satisfied the principal applicant and partner included in the application are living together in a partnership that is genuine and stable, but the duration of that partnership is less than the 12 months required, then:
   1. in any case where the grant of a residence class visa to a principal applicant is reliant on the relationship with or attributes of their partner the application must be declined under residence instructions; or
   2. in any case where the grant of a residence class visa to a principal applicant is not reliant on the relationship with or attributes of their partner the immigration officer may proceed with processing the principal applicant for the residence class visa but defer the final decision on the partner to enable the qualifying period to be met.
2. If a partner's application for a residence class visa has been deferred as described in (a)(ii) above they may be granted a work visa (once an application has been made) for a period sufficient to enable the qualifying period to be met and any further assessment of their residence class visa application to be completed (see WF2.20).

R2.1.20 Evidence of relationship with partner

Principal applicants must provide:

1. evidence of their relationship with their partner included in the application; and
2. evidence that their partnership is genuine and stable. (F2.20.15 sets out the types of evidence that are required).

Note: In each case where a person relies on being the partner of a principal applicant for the purposes of inclusion in an application (and subsequent grant of a residence class visa), the onus of proving that the person included is the partner of the principal applicant, that their partnership is genuine and stable, and of the required duration lies with the principal applicant and their partner (see F2.5(c)).

R2.1.25 Polygamous marriages and relationships

As an exception to the exclusivity requirement which forms part of the definition of a genuine and stable partnership (see F2.10) principal applicants in polygamous marriages or relationships (i.e. marriages or relationships with more than one partner) may have only one partner included in their application for a residence class visa.

R2.1.27 When may dependent children be included in an application and be granted a residence class visa?

For a 'dependent child' to be included in an application to be granted a residence class visa, an immigration officer must be satisfied that they are a dependent child.

R2.1.30 Definition of 'dependent child'

See also Immigration (Visa, Entry Permission, and Related Matters) Regulations 2010, Regs, 4, 20

For the purpose of inclusion in an application, and despite the definition in section 4 of the Immigration Act 2009, a child is dependent if they:

1. are:
   1. aged 21 to 24, with no child(ren) of their own; and
   2. single; and
   3. totally or substantially reliant on the principal applicant and/or the principal applicant's partner for financial support, whether living with them or not; or
2. are:
   1. aged 18 to 20, with no child(ren) of their own; and
   2. single; or
3. are:
   1. aged 17 or younger; and
   2. single; and
   3. totally or substantially reliant on the principal applicant and/or the principal applicant's partner for financial support, whether living with them or not.
4. When determining whether a child of 21 to 24 years of age is totally or substantially reliant on the principal applicant and/or the principal applicant's partner for financial support immigration officers must consider the whole application, taking into account all relevant factors including:
   • whether the child is in paid employment, whether this is full time or part time, and its duration;
   • whether the child has any other independent means of financial support;
   • whether the child is living with its parents or another family member, and the extent to which other support is provided;
   • whether the child is studying, and whether this is full time or part time.

R2.1.35 Evidence of dependence

1. Up to 17 years of age, if a child is single, they are presumed to be dependent unless there is evidence to the contrary.
2. Children aged 18 to 20 years of age are presumed to be dependent if they are single and have no child(ren) of their own.
3. For children aged 21 to 24 years of age, evidence of actual dependence may be required.

R2.1.40 Evidence of relationship with dependent children

The principal applicant must provide one of the following documents as evidence of the relationship of the principal applicant and/or partner included in the application with any dependent child included in the application:

1. the original birth certificate showing the names of the parent(s); or
2. original adoption papers showing that the child has been legally adopted by the principal applicant or partner; or
3. in the case of a child adopted by custom, a declaration by the adoptive parent(s) separate from, and in addition to, any similar declaration made on an application form (see R3.5.1).

R2.1.45 Children under 16 whose parents are separated or divorced

1. If the parents of a child aged under 16 included in an application for a residence class visa are separated or divorced, the applicant parent must have the right to remove the child from the country in which rights of custody or visitation have been granted; or if no such rights have been granted, from the country of residence.
2. Such children cannot be included in an application unless the applicant parent produces satisfactory evidence of their right to remove the child from the country in which the rights of custody or visitation have been granted or if no such rights have been granted, from the country of residence.
3. Except where (d) applies, evidence of the right to remove the child from the country in which rights of custody or visitation have been granted must include original or certified copies of:
   1. legal documents showing that the applicant has custody of the child and the sole right to determine the place of residence of the child, without rights of visitation by the other parent, or
   2. a court order permitting the applicant to remove the child from its country of residence; or
   3. legal documents showing that the applicant has custody of the child and a signed statement from the other parent, witnessed in accordance with local practice or law, agreeing to allow the child to live in New Zealand if the application is approved.
4. Where an immigration officer is satisfied that:
   1. by virtue of local law, the applicant parent has the statutory right to custody of the child; and
   2. it is not possible or required under that local law to obtain individualised legal documents to verify that custodial right, the child may be included in the application.

R2.1.50 Children under 16 with only one parent included in the application for a residence class visa.

1. If one of the parents of a child aged under 16 is not included in the application for a residence class visa, the applicant parent must have the right to remove the child from its country of residence.
2. Such children cannot be included in an application unless the applicant parent produces satisfactory evidence of their right to remove the child from its country of residence.
3. Except where (e) applies, evidence of the right to remove the child from its country of residence in cases where one parent is not included in the application for a residence class visa, but the parents are not separated or divorced, must include original or certified copies of:
   1. a written statement confirmed by both parents at interview; or
   2. a court order permitting the applicant to remove the child from its country of residence.
4. If, because of the death of one of the parents of a child aged under 16, only one parent is included in the application, the death certificate of the other parent must be provided.
5. The child may be included in the application where an immigration officer is satisfied that:
   1. by virtue of local law, the applicant parent has the statutory right to custody of the child; and
   2. it is not possible or required under that local law to obtain individualised legal documents to verify that custodial right.

R2.1.55 Situation of dependent of partners included in an application

1. Any dependent child who is reliant on inclusion in an application solely by virtue of being the dependent child of the principal applicant's partner included in an application (i.e. they are not a child of the principal applicant) may not be granted a residence class visa unless their parent partner is granted a residence class visa.
2. If their parent partner is granted a work visa as provided for in R2.1.15.5 (b) above then they may also be granted a temporary visa of a type appropriate to their needs (once an application has been made) for the same period.

Example: a dependent child intending to attend school in New Zealand must apply for a student visa.

Effective 19/08/2013