Work visa employees convicted of criminal offences

Immigration

Employment law versus Immigration law.
In the current labour market many industries find it difficult (or impossible) to recruit suitably qualified and experienced local staff. Therefore, quite understandably, they recruit from outside of New Zealand. Unfortunately there can often be employment relationship issues with work visa employees.

In the current labour market many industries find it difficult (or impossible) to recruit suitably qualified and experienced local staff. Therefore, quite understandably, they recruit from outside of New Zealand. In most cases with the assistance of a good licensed immigration advisor or a specialist lawyer, it is fairly simple to support a new or existing employee in obtaining the required work visa.

Unfortunately there can often be employment relationship issues with work visa employees due to the temporary nature of their permission to work. Also, what is expected under employment law often seems to directly contradict employers’ immigration obligations.

Employee convicted of criminal offence and needs visa help – how can you assist?

At Cavell Leitch we have assisted a number of employers who have had a work visa employee convicted of drink-driving. Any foreign national on a work visa may be deemed ineligible for the grant of a further visa if he or she is convicted of drink-driving or any number of other offences. In one particular case, the employee approached the employer asking for assistance and also requested a character reference to present to Immigration New Zealand to argue for the grant of the visa. What was the employer to do?

As the employer wanted to support the employee, we recommended that we provide both the employer and the employee with professional immigration advice. A good advisor can assist both the employer and the employee in explaining the full situation to Immigration New Zealand and presenting a case as to why the employee’s circumstances justify an exception. This approach gave the employee the best chance of having his or her visa approved and the employer the best chance of retaining that valued worker. In this case, the visa was approved.

Ideally, as an employer you should have a policy in place (or a term in your employment agreement) that requires your employees to advise you, in good time, if they are charged with or convicted of an offence. There is an argument that an employee should advise you of a conviction anyway, if he or she is acting in good faith. However, a policy (or a contractual term) will make that requirement absolutely clear and hopefully ensure that a work visa employee advises you of any conviction well before his or her visa is set to expire. This will enable you to make arrangements to support the employee through the visa process and arrange back-up cover if the work visa is not approved.

If you become aware that one of your employees has been convicted of an offence that he or she has not disclosed (whether or not you have a policy requiring an employee to advise you of a criminal charge or conviction), you should formally raise your concerns and provide an opportunity to respond before deciding to terminate the employment. The Employment Relations Authority’s criticism of employers almost always focuses on failures by employers to follow this fundamental step.

If you would like advice relating to work visas, please don’t hesitate to contact our friendly Immigration team.

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Copyright © Cavell Leitch. All rights reserved. Redistribution is only permitted with express written permission. For enquiries please contact us. This article by its nature cannot be comprehensive and cannot be relied on by clients as advice. It is provided to assist clients to identify legal issues on which they should seek legal advice. Please consult the professional staff of Cavell Leitch for advice specific to your situation.