Exploitation Submissions

Introduction

I am a Barrister and Solicitor, based in Auckland, a principal of my own Law Firm, McClymont & Associates. I began working in the field of Immigration Law in July 1997, developing a niche field of expertise in Refugee claimants, many of whom were from Punjab in India, and in the General Skills Category, which later morphed into the Skilled Migrant category.

My practice has developed a particular niche market in the Indian community, with approximately 65% of our clients being from India, and another 15% from other South Asian countries such as Pakistan, Sri Lanka, Bangladesh and Nepal.

Of those clients, the vast majority first entered New Zealand on Student Visas, with those visas having been processed by offshore Education Agents with no relationship to our firm.

We currently have a client database of approximately 15,000 clients.

I therefore believe that I am in a unique position to comment on the experience of Students from the Indian sub-continent who go on to apply for work and resident visas.

In addition, I graduated from Otago University in 1988 with a Bachelor of Arts degree with a third year specialization in Indian History, taught by Professor Gavin McLeod, a leading world authority on the Sikh history. I subsequently travelled to India in 1989, spending 6 months in that country. I subsequently lived in Sri Lanka for a period of 4 months, teaching English in a small coastal community.

In 2002 I married a New Zealand resident who originated from Punjab in India, with a family background in the Punjab Police. Since 2002 I subsequently have made approximately 25 further visits to India, staying predominantly in Chandigarh, the capital of the State of Punjab.

This experience, I believe, has also given me a unique perspective on Punjabi culture in particular, and the motivation drivers for migration to countries such as New Zealand.

Focus of Submissions

Considering my personal and professional background, the focus on these submissions will therefore be confined to the exploitation which exists amongst migrants from the Indian subcontinent who first enter New Zealand as students, then go on to work and pursue a pathway to residency.

It is this group which has, I believe, been the focus of the vast majority of new media reporting on migrant worker exploitation. In particular, those migrants working in the retail and hospitality industries, and even more specifically in the liquor retailing industry.

There are consistent themes which arise in my work and conversations with migrant workers who have suffered exploitation, and I have therefore amalgamated these together to form a narrative which I believe applies to the fast majority of migrant workers in this particular scenario.

Summary of submission

An examination of migrant worker exploitation must, in my submission, delve deep into the root drivers of that exploitation. Without doing so, any measures taken will be a band-aid measure only, and do nothing to address the drivers of this particular type of migrant worker exploitation. Any measures introduced will, therefore, soon be circumvented and new loopholes discovered and exploited.

My premise therefore is that:

• The majority of international students come to New Zealand primarily to pursue a Pathway to Residency.
• The majority on New Zealand qualifications attained by international students have little, if any, intrinsic value in the Indian labour market.
• The New Zealand government has traditionally played a central role in promoting this Pathway to Residency in the Indian market, a role supported by unlicensed Education Agents in India.
• In some regions of India, many middle class families have  not only a massive incentive to send one or more of their children offshore to pursue opportunities for residency in a western country, but through the increase in value of ancestoral farm land, obtain the financial means to invest in a child studying in a western country, with the aim of that child obtaining permanent residency or citizenship. Families tend to borrow against that land value, while continuing to live off the income from that land.
• Therefore, the money spent on international study is primarily an investment in that student attempting to obtain residency in New Zealand. The qualification itself is irrelevant, as it is simply a means to an end.
• Education agents in India then exaggerate the potential pathway to residency promoted by Immigration  New Zealand and Education New Zealand, and market international study as a virtual guarantee of residency.
• The ability of some students to obtain low value qualifications, and then residency through work in industries such as retail, are then able to be used as supporting evidence for the ability, and ease, of students to obtain residency after completion of their qualification.
• This contention is able to be supported by INZ and ENZ, who use the language of Pathways to Residency in communications relating to international students. Representatives from INZ and ENZ frequently worked in conjunction with unlicensed Education Agents at Education fairs in New Zealand, and were able to support the claims made by Education Agents, by explaining the various policies that entitle graduates to work and resident visas.
• Having arrived in New Zealand, and completed their New Zealand qualification international students find themselves, and their families in debt, and the loans needing to be paid off. That initial investment can only realistically be repaid through obtaining residency.
• The Pathway to Residency however, then proves to be significantly more complicated than the Education Agents claim, but also the language of Immigration Instructions for the Skilled Migrant category give an extremely misleading picture of the ease in which students are able to obtain residency under the Skilled Migrant category. Initially, many students obtained residency under this category who clearly did not meet the intent of Skilled mIgrant Instructions. As INZ however adopted a progressively stricter interpretation of Immigration Instructions, the difficulties in meeting the requirements of Skilled Migrant category became well-known within the industry and migrant community, thereby creating opportunities for exploitative employment relationships in order to meet this increasingly more complicated interpretation of Skilled Migrant Instructions.
• There was, therefore, a direct correlation between:
  1. The high number of international students entering New Zealand with the goal of obtaining residency; and
  2. An increasingly narrow interpretation by INZ of Skilled Migration Immigration Instructions; and
  3. The increase in news media reports of migrant worker exploitation in the liquor retail industry in particular
  4. The excessively high number of international students graduating with low level and value business diplomas
  5. Applications for work and resident visas by international student graduates with retail managerial occupations.
• Many migrant workers, desperately seeking the ability to obtain residency, worked in conjunction with their employers to manufacture a scenario that would enable them to qualify for a Skilled Migrant Resident Visa. Employers running a retail business therefore had the ability to support students on this pathway to residency, and that commodity, the retail business, then attained a high value in the market which an employer could then “sell” to international students through either a one off payment for the job, the promise to work significantly longer hours than what they were paid for, wage recycling (the employee paying their own salary) or the foregoing of fundamental employment rights such as annual leave or sick leave.
• The INZ response to the increasing frequency of both media reports on exploitative employers, and the identification of corrupt practices simply had the effect of an increased focus by INZ case officers on high-risk applications, which then increased the value of such job offers  and cooperative arrangements between employers and employees, and changes in Immigration Instructions by the previous National led government, and maintained and increased by the Labour led government, in increasing the minimum wage rate for an applicant to be skilled, thereby increasing the cost to migrant workers in terms of the cost to be to the employer through either cash or working hours. Government actions therefore exacerbated the problem.
• INZ staff more often than not took the approach that workers in an exploitative relationship were partly to blame, and were often declined visas when incidents were uncovered of payments to employers, working extra hours, or the inflation of job descriptions. Employers exploited this institutional bias by often reporting their workers to INZ for offences such as workplace theft etc…with INZ frequently taking the employers claim on face value, or by declining visas for employer breaches of employment or immigration law, thereby leaving the worker themselves as unlawful and subject to deportation. Employers exploited this eagerness by INZ to decline and deport ex-students as a way of getting rid of employees who complained about the cost to the employee of the job.
• INZ compliance officers had a focus on targeting ex-students. Information was provided by INZ to the Minister of Immigration in 2017 explianing that their targeting of such workers was on the basis that the workers were “most vulnerable to exploitation”. Algorithms were created by INZ compliance managers which enabled compliance staff to focus deportation efforts on student workers on this pathway to residency despite patently false claims by INZ in the news media that the focus was on unlawful migrants with criminal convictions or hospital debts.
• Whilst the present government has attempted to address the problem of migrant worker exploitation through the elimination of employer specific post graduate work visas, and the creation of migrant exploitation work visas, this has barely made a dent on the problem of exploitation as most migrant workers are still primarily motivated by a pathway to residency, for which they require the cooperation of their employer.
• However, the announcement of the 2021 One Off Residency policy has, incidentally, resolved a large number of the exploitative work relationship by creating a realistic pathway to residency which does not require the cooperation of an exploitative employer. Anecdotally, many clients tell me that they have either left those exploitative relationships, or plan to do so as soon as their Resident Visa is granted
• Therefore, in order to address the root drivers of this particular type of migrant worker exploitation, the government must:

1. Either create a realistic pathway to residency for international students; OR
2. Develop very clear and transparent policies on how a student is able to qualify for residency under the skilled migrant category; OR
3. Develop a Skilled Migrant policy which very clearly creates no pathway to residency for the majority of international students, and ensure that INZ and ENZ marketing supports reiterates this policy; OR
4. Develop a strategy for marketing the export education industry to very particular skills and qualifications, for which the current Skilled Migrant category is largely suitable.

In my submission, by developing one of these policy objectives, the government will be successful in eliminating the root drivers of a very large proportion of migrant worker exploitation, whilst resurrecting New Zealand’s international reputation as being a country that has an attractive export education industry, that treats migrants fairly, and has a zero tolerance for migrant worker exploitation.