Returning Client: Santa

Immigration

One of our favourite clients, Mr S. Claus (who we call Santa), has been in touch again.

It’s a busy time of year for Santa, as it is for many of our clients. Also, just like many of our clients, he needs urgent immigration and employment advice before Christmas. We are, of course, happy to oblige!

Cavell Leitch is very careful about client confidentiality.  But, on this occasion, Santa is happy for us to share the advice we gave him with the boys and girls (our clients) who work with Cavell Leitch.  In fact he has told us that all of Cavell Leitch’s clients are on his “good” list this year!

Santa wanted to know if there had been any visa changes since he last visited New Zealand, particularly for his employees (the elves) and the reindeer.
Last year, we helped Santa and his elves get short-term visas just for the purpose of coming to New Zealand to deliver the presents. 

This year Santa can apply for his and the elves’ visas online, instead of making paper applications.  Online applications get processed much faster, which has been great for Santa’s and the elves’ schedules and productivity.

Also, as Santa holds a passport for the nation of the “North Pole”, he may be eligible for an electronic visa.  This means Santa did not need to send his passport to Immigration New Zealand to be stamped.  Again, this saved him quite a bit of time this year and allowed him to get more toys produced in the workshop!

Can Santa include Mrs Claus in his online visa application?  She’s always wanted to visit New Zealand at Christmas.
At the moment, Immigration New Zealand doesn’t allow partners to be included in an online visa application.  Therefore, Mrs Claus will have to submit a paper application.  However, given the North Pole’s location, her visa is likely to be processed by Immigration New Zealand in Washington, who are very quick at processing applications.  It  will be approved before Christmas.

Santa wasn’t aware of the lower drink driving limit that started last Christmas in New Zealand.  On his way back to the North Pole, he was stopped by the New Zealand police and found to have drunk too much egg nog whilst in charge of a sleigh.  Will this affect his travel to New Zealand this year?
Oh dear!  Yes, this will affect Santa’s visa application.

First of all, Santa must declare the conviction when he applies for his visa.  If he does not, he might be refused a visa.  However, New Zealand’s children (and Cavell Leitch’s clients) should not despair.  Santa can ask Immigration New Zealand to waive the usual good character requirements.  This is complicated, so we will help him make the request.  However, given Santa’s excellent record (over hundreds of years) and his reasons for being in New Zealand, we are very optimistic that he will get his visa.

Santa is short of elves, so he may not be able to have all the presents ready in time.  Luckily, Santa has found some elves, here in Christchurch, that he would like to employ in his Canterbury toy-making factory.  But, the elves are not New Zealanders.  Can Santa get them work visas?
Yes, but Santa first must show that he has genuinely tried to hire New Zealand elves and that there are none available or none who could be trained to do the intricate toy-making work.  This means that he must advertise the jobs, perhaps using a website like TradeMe.  Santa must also list the jobs with the Canterbury Skills and Employment Hub (Hub).  When considering applicants, Santa has to be careful not to discriminate.  It might be that a New Zealand hobbit would be just as good at toy-making as an elf. 

If the Hub is satisfied there are no suitable New Zealand elves then they will give Santa a letter for each elf that Santa wants to hire.  Each elf can then use his or her Hub letter to get a visa.  Each elf will also have to show that he or she has the work experience or qualifications to undertake the toy-making work, and that he or she is of good character and in good health.  We can’t have the New Zealand hospitals full of sick elves!

If Santa was transferring elves from his North Pole operations into his Christchurch operations, he might not need to demonstrate that he couldn’t find New Zealand elves for the jobs.  This is as long as the elves will be doing specialist work, and have knowledge of Santa’s specialist (magic) systems.  Also, there can’t be any threat to opportunities for New Zealand elves. 

Santa recently checked on the elves in the factory and found many of them lounging on the factory floor, engrossed in the pictures on the wrapping paper, and surrounded in a cloud of smoke.  He suspects the elves have been smoking mistletoe.  Can Santa require the elves to take drug tests?
Santa can only require the elves to take drug tests if he has a drug testing policy in place, or there is a clause in the elves’ employment agreements that allows for drug testing.  The elves are likely to be in safety sensitive positions, so if Santa wanted to put a policy in place, we could also include random drug testing, as well as testing where he had reasonable cause to do so.

Santa employs his elves through a company called Naughty or Nice Limited. The board of Naughty or Nice Limited includes Santa, Mrs Claus, Rudolph the head reindeer, and the Tooth Fairy as the independent board member. The board are a worried about the Health and Safety at Work Act 2015 (coming into effect in April 2016).  What do they need to think about?
The board of Naughty or Nice Limited need to consider now whether they will comply with the new legislation when it comes into force on 4 April 2016 as there will be no ‘grace period’.  This includes taking steps to actively manage the health and safety of all elves and people in the workplace.  The workplace includes the sleigh and all of the homes Santa, his elves, and his reindeer visit when in New Zealand.  The board must also decide who will be considered to be the company’s “officers” as these people or elves will have personal liability if anything goes wrong.  It could do too, as the process of squeezing down a chimney to deliver presents is not easy!.

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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.