Illegal: Is it time for another overstayer amnesty?

Monday, 17 May 2021

Thousands of people live in Aotearoa illegally, surviving in a shadow world of cash jobs, without benefits or healthcare. In part three of a series going inside the world of overstayers, National Correspondent Steve Kilgallon examines the argument for an amnesty.

“If you are by the sea,” says Wang*, a Chinese builder who has overstayed his visa and is living illegally in New Zealand, “you can step back if the tides are rising. But now it’s like someone is standing behind with a gun pointed to you, do you dare to step back?”

Overstaying has become an economic necessity for Wang. He cannot afford to return home, at least not until he has earned back the $40,000 premium he paid to come here, duped into believing New Zealand would provide him stable and well-paid work in the construction sector. “I don’t want to leave any debt for my children,” he explains.

Since arriving here, a series of unscrupulous employers have stolen about $20,000 in wages from Wang – half of the debt he needs to repay. While he was promised a simple path to residency by his agent, Wang’s visa expired in February 2019, and, having failed in two renewal applications, he’s given up on trying to become legitimate.

While his visa status has never hindered him finding jobs, he knows it has left him helpless when it comes to demanding his employment rights, and even his wages. “I’m in a very passive position,” he says.

While Immigration NZ (INZ) has been mounting raids on building sites this month, he doesn’t worry about being deported, arguing that he moves house often and is paid cash so would be hard to track down. If an amnesty was offered, he would gladly accept it, but in truth he’s not staying here long term. At 55, his hope is to find secure work for the next three years, then leave a country which left his dreams shattered. “I used to think Western countries respect people’s rights, but not at the moment we do not feel respected here.”

Wang is far from alone. Zhou*, another Chinese overstayer of two years’ standing, has a similar story: he also decided to remain until he’s paid off his premium, which ate his life savings. He has about $14,000 left to go. He’s waiting for airline prices to drop and quarantine requirements in China to be lifted. Until then, he’s staying in the shadows. On his days off, he says he stays at home, to avoid trouble, only leaving to buy groceries. With no bank account in New Zealand, he’s paid in cash. And his pay is kept artificially low by bosses who know his immigration status, he says.

Punjab-born Sunny* hopes his New Zealand story has a much happier ending. He’s overstayed since 2015, when he lost his student visa after being kicked off a business course.

He’s barely worked since, fearful of deportation, instead relying on his New Zealand-born partner, the mother of his children, aged three and one.

Sunny says he worked for a Bay of Plenty kiwifruit contractor while on his student visa, who promised to sponsor him to residency. Instead, he says, the boss compelled him to keep working illegally with threats to tell INZ, and paid him just $9 an hour.

When Sunny finally told him he was quitting, he claims his boss led a group of men who assaulted him with hockey sticks and cricket bats, leaving him with a broken leg he was too afraid to have properly treated. Instead, he let it heal naturally and as a result, he says, he cannot run or carry heavy loads any more. He never reported it to police either: “I was so scared they were going to deport me.”

He describes life as “very stressful”, with a constant fear he will be sent back to India. He thought of going home, but his family took out a substantial loan to pay for his studies, and he has yet to repay any of it. “My dad would be very angry with me,” he says. All his hopes are now pinned on an application for a partnership visa, filed some eight months ago. “I want to get out of this situation,” he says.

‘Why not let them stay?’

Unite Union national director Mike Treen says New Zealand has a “moral responsibility” to help people pushed into overstaying by exploitation.

He believes the economy has become dependent on a revolving cycle of people on temporary visas with limited chances of turning those visas into citizenship or residency or of recouping the costs of coming here.

“We have created the legal and economic and political framework to allow that to happen on a mass scale,” he says. “It is not just incidental.”

He says those temporary visas are a recipe for exploitation and overstaying. “In nearly all cases, they are essential workers. We think we can’t replace them. Why not keep them? Why not let them stay, why not forget whatever legal status they came on, and are on now, and hit a re-set button and let them stay.”

Treen says it makes no sense to bring, say, construction workers such as Zhou and Wang, here for two years, send them home, then import more. He says the way the Government has cut permanent residency figures while expanding the number of temporary visas is deeply unfair. “How can you bring people here on visas and have no hope of transitioning to residency? In my view that is a crime, and it has created criminal behaviour on a vast scale.”

Treen argues that the halt on migration caused by Covid-19 has given us a chance to re-set a broken system and, with the Migrant Workers’ Association’s Anu Kaloti, has driven a petition asking for an overstayer amnesty.

It amassed 15,000 signatures and was presented last week to Green immigration spokesman Ricardo Menendez March and Labour MP Marja Lubeck, chair of the Education and Workforce Select Committee. It asks for an amnesty for overstayers and a proper pathway to residency for those on temporary visas.

It’s not the first to be tabled. In July last year, the Pacific Leaders’ Forum’s Makahokovalu Pailate submitted a petition to Parliament with 11,119 signatories asking for an amnesty on compassionate grounds for overstayers.

In December 2020, the Auckland Catholic Church called for an amnesty during the border closure, then a qualified amnesty thereafter. And in February, a former Queenstown chef, Ryann Lourenco, presented another petition to Parliament signed by 64,000 people asking for a residency amnesty for 200,000 migrants on temporary work visas or partner visas, arguing the March 2020 closure of the skilled migrant residence pool and the regular policy changes for residence criteria, plus Covid-19 had made it very difficult for people to secure residency.

Immigration lawyer Alistair McClymont says there has been a noticeable slowdown in the number of people being granted residency in the skilled migrant category. It has become particularly hard for Chinese and Indian nationals applying in retail and hospitality roles. The pathway, he says, has become “illusory”.

“The skilled migrant policy is one of the worst, if not the worst. At least the Government knows it is bad, but in the meantime it is causing chaos and mayhem,” McClymont says.

“If ever there was a time where an amnesty was needed, it is now.”

McClymont cites a huge residency backlog, significant numbers of extremely long-term overstayers and the risk of a coronavirus outbreak among overstayer communities afraid to get vaccinated because they fear the government knowing their identities.

INZ has unofficially decided not to deport people, particularly to Covid-stricken countries like India, McClymont says. This has created an “absurd situation”.

“They are saying: unofficially, you can stay here, we won’t force you to go, but you can’t work and can’t earn any money or go to school. Just disappear into the ether.”

The argument for amnesty

The Green Party has now adopted the call for an amnesty as official policy. Menendez March says the “time is right” and there is momentum building for change. He, too, cites the need for mass vaccination, and that an amnesty would reduce exploitation. He adds that if the Government is planning an apology for the Dawn Raids of the 1970s and ‘80s, then that should be accompanied by a “meaningful action”.

Menendez March says an amnesty should be broad, even including those with criminal records because he argues being considered illegal pushes people into poor choices.

But an amnesty “is not the end goal”.

“The end goal is to reform the immigration system with clear pathways to residency. But we can’t ignore the fact we have a problem right now … we need to regularise people’s status and also fix the system. We can create mechanisms so people are not put in this position in the first place and have a chance of staying.

“Migrant workers deserve to have clear pathways to residency that are far broader, because we are creating conditions akin to what we see in places like Dubai where they keep their migrant workforce on temporary visas for far too long.”

An amnesty would not be a revolutionary idea.

Amnesties were granted in 1987, 1991 and again in 2000, when Labour granted an amnesty for “well-settled overstayers”, estimating it would cover about 7000 people who had been in New Zealand over five years, or were in a relationship with a New Zealander or had New Zealand-born children.

Treasury argued it would cost $12.4m over two years and increase social and economic gaps between Pasifika and other New Zealanders. The Department of Labour said a better approach would be an “effective removal regime”, while Australia also asked questions, worried it would see a flood across their borders.

Alliance minister Matt Robson was among those behind it, saying at the time that the immigration laws were “too restrictive and can be quite harsh,” driving people to overstay. Union leader Matt McCarten, who was Alliance Party president at the time, recalls it was official Alliance policy, but deliberately kept low-key because they knew it was not a vote-winner.

An amnesty now would likely embrace more overstayers than in 2000, but it’s difficult to say how many.

Immigration NZ told Stuff that since 2017, it had been unable to analyse overstayer numbers to test their reliability and so could only offer a four-year-old figure – 13,895. It also couldn’t offer any analysis of how many of them had been here long-term.

The presumption is the figure has stayed stable. INZ general manager Steve Vaughan says the working estimate is there is usually between 13,000 and 14,000 overstayers here at any time. It’s certainly a far smaller figure than in bigger economies: over three per cent of the US population is living there illegally and India once claimed it had some 20 million Bangladeshis there illegally.

The prevailing argument against an amnesty is that it would encourage even more people to overstay, and dissuade those who have negotiated the costs and paperwork of staying here legitimately.

A former minister of immigration, Tuariki Delamere, says an amnesty would send the wrong signal. “What message does that send to all the bastards out there who’ve spent thousands of dollars doing it properly, waiting to be approved if all of a sudden guys who’ve come and just stayed, we give them residency?” he says.

“I am totally opposed to it. I understand why people want to stay - if I grew up in certain circumstances in countries I’ve seen overseas, yes, I would do what I could to stay too. And as minister, I never held it against them for trying, or blamed them. But my job as minister was to do what was right for New Zealand - and that was not granting residence willy-nilly to those who decided to overstay.”

Immigration minister Kris Faafoi refused a request from Stuff for a formal interview. But in comments to a Stuff reporter he hinted that immigration settings were likely to become tighter, rather than more relaxed, saying the government was “reviewing the settings [for skilled migrants] … we are getting the lower-end of the skilled migrant range and [asking] whether that meets the demands of the economy”.

He followed that with a speech given on his behalf by fellow minister Stuart Nash on Monday night where it was indicated that immigration numbers would be slashed and the government would target higher-skilled, higher-earning migrants, and reduce those arriving on student visas.

Asked if he believes an amnesty could be political reality, the Greens’ Menendez March says the “only certainty is that if we don’t keep campaigning on it, it definitely isn’t going to happen.”

Faafoi’s silence may be because he is weighing several major decisions in the immigration space. “The amount of time you hear immigration officers saying they are waiting for the minister to make a decision - he has all these decisions to make, and he doesn’t know what the hell to do,” says lawyer McClymont. “Migrants just want the minister to come out and say what’s happening.”

* Names changed to protect the identity of vulnerable people

* EDITOR'S NOTE: This story was updated to reflect planned changes to immigration rules announced by the Government last night. (Amended 18/5/21, 9.35am)