'Dysfunctional and unrealistic': lawyer slams entrepreneur work visa rules

An Immigration lawyer says the pathway for migrant business owners to get New Zealand residency does not recognise the realities of running a business.

Aaron Martin of advisory firm NZ Immigration Law says this country's immigration law is not fit for purpose and does not allow for "common sense" to be used when determining who can and can't reside in New Zealand permanently.

READ MORE: • Family running business in NZ for 6 years faces deportation

Martin says the entrepreneur work visa scheme, which was introduced in 2013, needs to be scrapped and redesigned following Immigration NZ's decision to deny a hardworking family who run a profitable Auckland restaurant residency.

Nataliya Shchetkova and her husband Alex Derecha, the owners of popular St Heliers restaurant La Vista, along with their three children, came to New Zealand to buy a fine dining restaurant.

The Ukrainian citizens came to New Zealand on a long term business visa and have been running their restaurant for six years.

The family has since applied for permanent residency which was declined, despite their business turning over of $1.6 million in the last financial year and employing 26 staff - 17 on full-time contracts.

Their current visa expires in July 1.

Shchetkova believes residency was declined because of wrong advice from an Immigration NZ case officer. But Immigration NZ says that is not the case.

"Simply buying and running a pre-existing business does not meet the requirements for residence under the Entrepreneur category," Immigration NZ (INZ) manager Michael Carley says.

"At the time of applying for residence, Nataliya Shchetkova was required to demonstrate that her business had created ongoing and full-time employment for three New Zealanders over and above the pre-existing staffing levels.

"INZ was not satisfied that Nataliya met this requirement due to a number of employment agreements rostering no minimum hours of work. In addition to this, Nataliya was not able to demonstrate the immigration status of a number of staff employed," Carley says.

"Nataliya also claimed that the business benefitted New Zealand in the form of revitalisation of an existing New Zealand business that led to significantly increased financial performance.

"Based on the evidence provided, INZ was not satisfied this was the case, as Nataliya's business failed to trade profitably due to a shortfall of over $230,000 in revenue. INZ was also not satisfied that there was clear potential for the business to become profitable within the following 12 months."

Martin says INZ needs to allow for an element of discretion in the decision making of residence applications, based on merit.

He says the situation the Shchetkova family is common among those who have come to New Zealand on entrepreneur work visas.

"I don't think the entrepreneur work visa policy is working as it was intended, and I question whether it should carry on.

"I don't think it is delivering the results that it ought to be. It's become [influenced] by a desire to try and measure every single business by a standard measure and you can't just do that in the current business climate," he says.

"It doesn't take into account the real world which is that business doesn't always go according to a plan that is presented 12, 24 or 36 months prior."

When the Global Financial Crisis hit New Zealand in 2008 dozens of migrant business owners running businesses went through similar situations to the Shchetkova when their residency applications were denied.

"There's a lack of discretion for residence cases, particularly business-orientated cases, where there is so much that's beyond the control of the business owner... I don't understand why we are trying to run them in a manner where there's no provisions to exercise discretion."

The entrepreneur work visa was introduced when the long term business visa was abolished under the National government in 2013.

Martin says the original pathway to residency for migrant business owners was disestablished as it was being used as a last resort by many migrants and the quality of businesses had decreased.

"The quality of businesses might have now improved but it doesn't necessarily improve your chances.

"The whole policy and set of rules is somewhat dysfunctional and unrealistic in terms of how it measures business performance - it needs to be scrapped and started again."

Immigration Minister Iain Lees-Galloway was unable to answer the Herald's questions.

A spokeswoman for his office says the Shchetkova's immigration case has not been passed on to Lees-Galloway. If it is referred to a Minister, Kris Faafoi, Associate Minister of Immigration, will oversee the decision for special consideration.