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Policy remains unfair to skilled migrants

The Skill Migrant Category (SMC) replaced the General Skill Migrant Category (GSM) in 2003. Seriously flawed, the GSM had resulted in thousands of skilled migrants unable to work in their field of qualification and experience due to a number of factors including non-recognition of their overseas qualifications, inability to get occupational registration and a lack of New Zealand experience.

The Government abruptly abandoned the GSM in November 2002 to save potential migrants from fraudulent agents, particularly from India and China.

Standard classification

Under the SMC, skill employment was based upon relevancy of job offer to the qualification of applicant. Changes introduced in December 2004 saw the addition of ‘considerable expertise’ in determining Skilled Employment.

Further changes were made in February 2008 to the definition of Skilled Employment, making the Australian and New Zealand Standard Classification of Occupations (ANZSCO) the standard measure to determine whether a job was skilled.

As per SM 7.10 instruction under the Policy, assessment of skilled occupation is primarily based on ANZSCO, which associates skill levels with each occupation. It ensures that the job assessed is included in Appendix 6 and substantially matches the description for that occupation (including any core/unit tasks) as set out in ANZSCO.

There are also other stipulations in terms of minimum recognised qualifications, and /or work experience and salary/wage level.

Tough regime

In August 2012, the definition of Skilled employment was further restricted to few parameters of authority and autonomy. But what constitutes Skilled Employment remained the undefined heart of the SMC policy. It is difficult to define substantial match with the ANZSCO tool.

It is now impossible to be elected through the Expression of Interest (EOI) pool or be accepted for residence without a skilled job or job offer in any field.

As on date, all the appeals decided by the Immigration and Protection Tribunal relating to applications by skilled migrants declined under SMC had skilled jobs.

The Government withdrew some concessions that were available for Departmental Managers in supermarkets in 2013, making it difficult for people to come to New Zealand as skilled migrants.

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If skilled migration is based on ANZSCO prescribed skills and tasks, the rate of refusal and proportion of the inconsistencies will surely damage the reputation of New Zealand as a favourable destination for migrants. The threshold is far too high and assessment of jobs as against ANZSCO is still unpredictable in many cases. There is also evidence of inconsistencies in approach to similar job descriptions and same employers.

The high threshold for certain occupations is not due to the use of the word ‘considerable’ or ‘substantial match,’ but due to the way in which ANZSCO classifies certain jobs.

There are similarities in the core tasks of supervisors and managers with minor difference of level of authority to perform respective tasks. Immigration New Zealand (INZ) treated skilled jobs as equivalent to supervisors and not managers.

A store manager at a fast food company earning $60,000 per annum is unlikely to meet the definition of skilled employment, as he/she will be performing only a part of the role of a manager. A store manager rarely has the degree of autonomy and control required of a full management position like an ethnic restaurant manager as defined in ANZSCO.

Rigidity shunned

As per INZ guidelines, case officers are not expected to take a rigid approach looking behind the job title and even the job description to determine what the actual tasks entailed in a role.

They should check whether a majority of ANZSCO tasks performed by the applicant are as per the nature of business operation of the employer.

By contrast, the definition of skilled employment considers the following as skilled –hairdressers, bakers, motor mechanics or any other tradesperson with three years’ experience considered skilled.

According to the Residence Review Board, a substantial match is not achieved by ticking off a certain number of tasks but determined on a holistic basis, taking into account the listed tasks and specific characteristics of an applicant’s offer of employment.

Simplified approach

SMC is undoubtedly one of New Zealand’s most important policy tools for attracting skilled migrants. But there is no benchmark disclosed in the promotional material of INZ.

The skilled employment issue is arguably more complex now and ANZSCO has been given too much importance. There is an urgent need to include professionals who have considerable responsibilities in the businesses supported by New Zealand recognised qualification and work experience of two to three years in the relevant employment field.

What is skilled employment?

This puzzle must be resolved. If a culture of rightful thinking exists within INZ of recognising that migration is a two-way traffic for the international students and New Zealand, the threshold should be lowered and the ‘strict liability law’ approach should be replaced by a pragmatic and flexible approach.

Gurjinder Singh is a Licensed Immigration Advisor, a Barrister and Solicitor of High Court of Auckland based in Papatoetoe, South Auckland

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