With all the immigration changes globally, both recently and over the last few years, we wanted to see how current and proposed future law will be affecting one of our more idiosyncratic clients. Our client, who to date has literally been able to fly both under and over the radar of many if not all immigration authorities, wishes to remain anonymous and therefore will be referred to throughout the article as "the Client."
With the above in mind, we have contacted various immigration experts in countries we know our client will be visiting soon to get their take on the Client's immigration situation. Though we continue to strive for anonymity of the Client, after explaining the situation one of the experts immediately exclaimed:
"[i]f you believe some of the stuff (the government) is coming up with then believing in Santa is not that far-fetched by comparison!!"
to illustrate the status of affairs in one of the Client's destination countries. Believing that we were onto something here, we pressed on and as you will be reading below, the law is not making it easy for the Client to exercise his vocation without proper documentation.
We asked our local immigration experts a few key questions so that the Client would get a better understanding as to his obligations under current immigration regulations and so he can plan any necessary applications well in advance of his travel. Needless to say, for the Client to end up on the persona non grata list of any of these countries would be tragic and could well lead down a general depression among the population. The questions we asked dealt with the Client's general travel ability – to the best of our knowledge he would be considered stateless in most countries; though we know that a few countries have claimed him as a citizen in the past; his status in the country, his ability to engage in the variety of activities that make up his vocation; whether there any actions the Client should undertake to remain in compliance with the local immigration laws; and finally whether the Client should consider any up-coming changes in immigration law for the coming years.
The description of the Client we provided to the immigration experts in the various destination countries was as follows. The Client is a self-employed individual with no formal education but with hundreds of years of on the job experience who is a seasonal traveler. He is traveling by air, using his own mode of transportation, and he has, as far as we could check, never applied for visas nor declared his entry into any country properly. We know that the Client will again attempt to enter the country this year, most likely on December 24th, to engage in the following activities:
- Engaging in extreme sports – specifically climbing up and down chimneys;
- Piloting an unlicensed reindeer propelled sleigh;
- Delivering goods which were manufactured outside of the country;
- Creating goods on the spot in-country where supplies run low, as needed; and
- Engaging in general acts of magic.
We asked Nicola Appleton, a Senior Associate with Cavell Leitch in Christchurch, New Zealand to provide her expert opinion on the Client's options under New Zealand immigration law. Ms. Appleton had actually quite a bit of good news for the Client as well as a few words of general caution.
On the question as to what documentation the Client would need to enter New Zealand, we were not surprised to learn that an acceptable travel document would be required. Under New Zealand law, either a passport or a Certificate of Identity are the most acceptable travel documents. Ms. Appleton reminded us that as the Client is a stateless person, he will not have an acceptable passport, as this must confirm the bearer's nationality. Therefore, the Client would normally be expected to present a Certificate of Identity. However, as the Certificate of Identity must be issued by an official source recognized by the New Zealand government, and given that at present, sadly enough the New Zealand government does not recognize the state of the North Pole where the Client normally resides, he would not be able to provide either of the acceptable entry documents.
Fortunately, an appropriately delegated immigration officer can, in his/her discretion, waive the requirement to produce a travel document. Therefore, as long as the immigration officer is satisfied that there is a compelling reason why the Client's staff failed to furnish the Client with an appropriate travel document and as long as the Client can offer a genuine reason to visit New Zealand, he is likely to be granted entry after all.
Now that we know that the Client can be admitted into the country, the question of what immigration status he will hold comes to mind. Ms. Appleton seems unconcerned with the Client's status in New Zealand, even though the law dictates that the Client must present himself to an immigration control area, which will usually be a port or an airport, within 72 hours of arrival. She explains to us that since the Client will be in and out of the country well within the prescribed 72 hours deadline, and given his very busy schedule while in the country, realistically, it is unlikely that the Client be able to pause for long enough to stand in a queue at the airport. Moreover, and very luckily for the Client, he will be deemed to hold a work visa in New Zealand! This is because the crew of any vessel, carrying cargo between any foreign port and New Zealand will be deemed to hold a work visa from the time the ship arrives at the port of entry until it is given clearance to leave.
With the good news relayed to the Client on his status in New Zealand, it is now actually time for a little reality check for our Client as we address the proposed activities he is looking to undertake while in the country … .
Ms. Appleton points out that though there is no issue with the Client undertaking extreme sports whilst in New Zealand, he must take note of the fact that as his work visa is valid for less than two years, he will not be eligible for free health care whilst he is in New Zealand. Therefore, the Client will need to ensure that he holds proper health insurance under a New Zealand rider while in the country.
Speaking of health, Ms. Appleton does remind us that if the Client fails to meet the "acceptable standard of health" requirements under New Zealand law, then he may lose his work visa. For example, should the Client have a Body Mass Index of over 35, then he will not meet the health requirements. Should health standard concerns arise, the Client may need to prepare a formal submission to request for the grant of a "medical waiver." Immigration New Zealand may be prepared to grant this if we can prove that the Client is unlikely to need hospitalization or high cost pharmaceuticals whilst in New Zealand. We will be sure to advise the Client properly and suggest him to add a gym membership to his Christmas wish list!
The Client's proposed mode of transportation also poses a problem in New Zealand as one cannot apparently lawfully pilot a reindeer-propelled sleigh in the country unless the vehicle meets the registration requirements or exemptions of the Civil Aviation Act of 1990. This can take some time to procure. Hence, unless the Client's staff has been liaising with the Civil Aviation Authority well in advance of the planned travel, the Client may well need to resort to other modes of transportation.
The news is not getting any better where it comes to the import of goods. The Client may actually need to declare his wares to the New Zealand Customs Service. Even though the merchandise arguably does not meet the definition of "goods of a commercial nature," given the fact that the Client intends to give them away, they may still attract a payable import duty. Also, the Ministry of Primary Industries (MPI) will be anxious to inspect the merchandise, the sleigh, and the reindeer to ensure that they do not present any biosecurity risk to New Zealand's beautiful flora and fauna. If the Client fails to present these to the MPI, then he may be fined $100,000 or even worse, be jailed for five years.
So what then can the Client realistically do in New Zealand – other than engaging in sports? After all, he holds this work visa. As it turns out, the Client's work visa will only permits him to work as the crew of a vessel delivering goods. Therefore, it is likely that the manufacture of goods, on the spot, will be outside of the activities permitted on his work visa. Should the Client be found to be engaging in these activities nonetheless, then he may find his work visa revoked and then be deported from New Zealand.
All visa holders, in New Zealand, are expected to be of good character. Whilst no one wishes to risk appearing on the "naughty list," least of all our very careful Immigration Officers, there may be some concerns as to the Client's good character if he is seen to be undertaking some form of witchcraft, whilst in New Zealand. Ms. Appleton recommends that he adhere to New Zealand's laws and conducts himself with the utmost dignity at all times. Perhaps feet first down the chimneys?
Finally, Ms. Appleton warns the Client to take great care to ensure he does not have any stowaways, such as staff members, on his sleigh. Quite aside from the potential biosecurity risks of unscreened stowaways entering New Zealand, any undeclared stowaways will be deemed to be unlawfully present in New Zealand and will be liable for arrest and detention.
Needless to say, the Client was not all too pleased to learn about the laws in New Zealand. His gut reaction was that the people in New Zealand are upset that it does not snow in December. He also does not understand what New Zealand has against magic as the entire country lives upside down after all!
With his initial excitement about his December travels a little dampened, the Client seeks to cross over to land nearby in the hopes of better news regarding his immigration status. He has confided in us that he is especially looking forward to a good BBQ and if he finds the time, a little lounging on Christmas Island!
Quickly it becomes clear to the Client that even though nearby, Australia has its own set of rules and regulations. Andrew Butler, a Solicitor and Migration Agent with ASG Immigration Limited in Sydney, Australia, reminds us that Australia has a universal visa system. This means, that as a non-Australian, the Client, regardless of his very short stay, must deal with Australia's Department of Immigration and Border Protection ("DIBP"). Being resident at the North Pole and therefore legally stateless, the Client's first hurdle with any Australian visa he applies for is meeting the country's Public Interest Criteria (PIC) 4021, which requires applicants to hold a validly issued passport. Luckily for the Client, however, PIC 4021 does include a caveat that a passport is not necessary where "it would be unreasonable to require the applicant to hold a passport." This discretionary test, according to Mr. Butler, is one an assessing case officer would almost certainly find in the Client's favor, given the benefit the country will derive from the Client's visit.
As the Client, unlike those nationals who are eligible to apply for either an Electronic Travel Authority ("ETA") or an eVisitor visa, must apply for an actual Australian Visitor visa (subclass 600) under the country's Business Visitor stream, he and his staff must keep in mind that this application comes with an adjudication time and hence will require timely filing. Moreover, unlike the ETA and eVisitor visas, for the subclass 600 visa, the application must specifically request adjudication under the Business Visitor stream for business visitor activity rights to be conferred.
According to Mr. Butler, holding business visitor status is sufficient for the Client's intended activities as he proposes that the supporting documentation the Client is submitting with his application establishes him as "[a] non-remunerated featured special guest at millions of yearly events scheduled … in each of the homes of Australia's children who fall on the right side of his naughty and nice list … ." Therefore, a generous interpretation by Australian immigration officials would likely see this considered as a permissible 'business visitor activity.'" Mr. Butler does caution us though, that the Client will have to be careful with his supply of goods.
Unfortunately, the business visitor status that the Client holds does come with a condition. Condition 8115 prohibits the visa holder from undertaking work or supplying services. This means that the Client better checks his inventory for Australia twice before entering the country. As for his love of sports in general and chimney climbing in particular, as well as engaging in general magic, this is all perfectly permissible on his business visitor visa.
Though Mr. Butler really wants to focus on the Client's ability to enter and his status in the country, he does forewarn the Client that whereas Australia's Immigration Department might not challenge him on his unlicensed aerial maneuvers while piloting his sleigh, Australia's Civil Aviation Safety Authority certainly will. Word to the wise – or in this case, the Client's staff – it is best to liaise with the authorities early on to secure appropriate permission. In this case, we would not suggest to simply move fast!
A very good reason for both adhering to the limitations of one's allowable activities as well as not staying in the country past one's permissible period of stay; which is generally three months per entry on the type of visa the Client holds; is that the country exercises both entry and exit immigration control. Being an island nation, Australia is in the unique and enviable position of knowing which non-citizens are within its borders and when exactly they arrive and depart. This makes it essential that all visa holders leave when required, as those who overstay are easily identified by Australia's immigration authorities. As Mr. Butler aptly points out, given the Client's busy schedule, overstaying to enjoy Australia's Christmas time summer weather really is not an option for him – and given the way he dresses, he will probably want to head off somewhere cooler sooner rather than later!
As the Client does agree that he is somewhat overdressed to stay within the reach of the island nations for too long and given that he has many other countries to visit, we will swiftly turn our attention to Canada.
Eleanor Somerleigh, in her capacity as a Canadian Barrister and Solicitor (Ontario) with Rekai LLP in Toronto, ON, initially defended the country's action from last year by which the Client was extended a Canadian passport. After explaining, however, that this Client cannot be seen to favor one over others, Ms. Somerleigh was willing to concede the point for the purposes of this article. Just as in New Zealand, Canada has provisions for applicants who are traveling without a passport; specifically, the Canadian authorities will require a stateless person to apply for and be issued a visa before being eligible to transit through or seek entry into Canada. In the Client's case, as he does not seem to hold a proper travel document, Ms. Somerleigh believes that the Canadian immigration officer will nonetheless be able to issue the Client a Temporary Resident Permit.
As the activities that the Client is proposing to engage in, in Canada require a Work Permit, Ms. Somerleigh is strongly suggesting that the Client requests a work permit based on the grounds of Significant Benefit to Canada; his considerable and well documented track record on an international and professional level would substantiate the application. This is great news as the proposed work permit category allows the Client to avoid the otherwise required Labour Market Impact Assessment, which would add significant time to the application process. Based on this work permit, the Client would be able to engage in all proposed activities, except for the manufacturing of goods while in Canada. In the good spirit of continuing the grounds for the issued work permit, namely a benefit to Canada, the most obvious solution to potential shortfalls of goods is for the client to go shopping and support Canada?s local artisans.
Though the solution of local shopping may be a great one, Ms. Somerleigh warns the Client about the amount of cash he brings into the country, as the Financial Transactions and Reports Analysis Centre of Canada will become very interested in any traveler coming into the country with cash in any currency equivalent to C$10,000 or more.
Moreover, the Client's chosen mode of transportation will be scrutinized in Canada as well. Not only must he be able to show the vaccination certificates for any reindeer traveling to Canada with him, evidencing they pass the Health Canada vaccination requirements, he will also need to let Transport Canada test his sleigh for airworthiness before it may be operated in Canada. Again it is our sincere hope that the Client's staff has made the time this year to secure the vaccination records and has timely scheduled the inspection by Transport Canada to avoid delays.
As in other countries, the Client will have to leave Canada by the expiration date of his work permit. Hence, keeping track of the expiration date is critical. Additionally, in order to be eligible for future work permits, the Client must make sure he does not commit any acts that would make him inadmissible to Canada. This includes the always proper warning to not drink eggnog and then operate a sleigh as driving under the influence may well result with the Client being found criminally inadmissible to Canada … .
To avoid any of these immigration related complications, Ms. Somerleigh, with a big smile, does remind us that the Client could always decide to apply for a Certificate of Canadian citizenship – an application which currently takes 10 months and hence would set the Client nicely up for next year. Ms. Somerleigh seems to be quite convinced that the Client would be granted Canadian citizenship as per current jurisdiction claims, the Client's birth place at the North Pole, is claimed by Canada as its own territory.
To avoid this political debate, we now focus our attention on the United Kingdom where once again the Client finds himself in somewhat of a pickle at the port of entry as in order to enter the United Kingdom, either a passport or identity document is required. Supinder Sian, a Partner with Squire Patton Boggs LLP in the firm's London office, is really concerned about the Client's ability to visit the United Kingdom. If the Client manages to enter the country without holding a passport, he may apply for a stateless persons' document, which if granted is valid for 10 years and will enable him to travel to other countries as well. Alternatively, Mr. Sian sees a viable solution in acknowledging one of the other countries' claims where the Client has become a national of that country and hence have furnished the Client with a passport … .
Given the fact that we are aware of two such countries at this time, namely the United States and Canada, the Client might actually be in some luck vis-à-vis his proposed travel to the United Kingdom as holding a passport from either of these countries would allow him to travel visa-free to the United Kingdom for limited activities. This now raises the question as to how limited these activities will have to be? Though the answer is "very limited," though oddly enough, the Client could actually engage in one activity that would have landed him in trouble in New Zealand – even while holding a work permit there! In the United Kingdom, in addition to the expected permissible activity of delivering goods that were manufactured outside of the country, the Client can also engage in general acts of magic. Mr. Sian cautions though, that with regard to the latter activity, it would behoove the Client to limit this to attending meetings and visiting client sites.
Given the limited scope of permissible activities while holding business visitor status in the United Kingdom, the Client will really require work authorization to make his travel worthwhile. This is easier said than done, as in order to sponsor a foreign national for work authorization in the United Kingdom, the sponsoring entity must first be approved by the Home Office as a licensed sponsor. As such, as the Client needs to find an entity that holds a Tier 2 sponsor license that is willing to sponsor migrants to enter the United Kingdom to climb down chimneys, engage in magic, and manufacture goods. Again, this is easier said than done.
One potential sponsor would be the Royal Mail, an entity that has been very supportive of the Client; but the Royal Mail is not a licensed sponsor (currently). May we suggest the Client try his luck with FedEx, DHL, or UPS instead? All three currently hold Tier 2 sponsor licenses; and with the little time left before the Client's travel needs arise, either of the three may prove to be a good fit! Even if the Client finds an entity willing and able to sponsor him for Tier 2 status, Mr. Sian warns us that the Client will still need to meet stringent job requirements as he must be deemed sufficiently skilled (skilled to NQF Level 6 or above to qualify under Tier 2) and be the only suitably qualified person to do the job, (highly likely), only then may he enter the United Kingdom on a Tier 2 (General) visa.
Unfortunately, the Tier 2 route is not a long-term solution for the Client, as Mr. Sian reminds us that the regulations in the country dictate a mandatory 12 months cooling off period at the expiration of the current visa. It looks like immigration restrictions in the United Kingdom are working a little too well … .
Mr. Sian also is concerned about the reindeer, as the United Kingdom has rather strict regulations warranting quarantine periods for animals that are seeking entry into the country; especially if there is potential for rabies concerns. Even though the rules were relaxed in 2012, there are still vaccination requirements and there may be mandated wait periods. As with some of the other countries, it is again our hope that the Client's staff has done the legwork on this as both the Animal and Plant Health Agency and the Department for Environment, Food & Rural Affairs take animal travel very seriously.
In sum, the long-term migration options for the Client look pretty bleak in the United Kingdom. On the one hand, as a Business Visitor, the Client must ensure that he only remains in the UK for the period of the validity of his visa; and in addition, he must not perform activities that are not permissible. On the other hand, as a Tier 2 migrant, he must work in accordance with and must not be in breach of the conditions of his visa and as such cannot moonlight as an actor in a nativity play in the West End instead of performing his duties as stated in his Certificate of Sponsorship. Additionally, he will be forced to cool his heels (literally) during the mandated cooling off period. Ultimately, and prefacing that this is clearly not legal advice, Mr. Sian states that "[i]f all else fails, (the Client) may be able to seek refuge with the Brown family and the United Kingdom's other most famous illegal immigrant, our beloved Paddington Bear."
Clearly it is time for us to move on and leave Mr. Sian to draft the undoubtedly needed revisions to the United Kingdom's immigration laws … .
So on we go to Singapore, a country eagerly awaits the Client's arrival later this month.
Noraini Latiff, Managing Director of DMS Corporate Services Pte. Ltd. in Singapore, advises us that there are two schools of thought on the Client's ability to enter Singapore. The more conservative view is to consider him to be stateless, in which case he would need to apply for a social visit visa before being able to travel Singapore. This possibly will prove to be an issue as the Client may not be holding a travel document recognized by the Singaporean government. A more lenient approach to the Client is one that Ms. Latiff favors. Namely ,accepting that he hails from the North Pole; and while the North Pole is not on the list of visa exempt countries for travel to Singapore, given the Client's stature, which pre-supposes he is traveling on a Diplomatic passport, he will be allowed entry into Singapore without a visa.
Regardless of whether the Client would enter on a visa or under the visa exempt route, his status would be the same: He would be considered to have been issued a Social Visit Pass when he entered the country. Singaporean law has a notification facility for certain short-term activities that travelers may need to engage in while in Singapore expeditiously, without having to apply for a Work Pass or Employment Pass. Unfortunately, Ms. Latiff advises that most of the Client's activities are not covered by this exemption.
Instead, the Client may be qualified to apply for and secure a Miscellaneous Work Pass in Singapore. This particular application does require a local sponsor. While we have found this to be a stumbling block in other countries, many organizations in Singapore ostensibly exist to support our Client – ranging from a hotel chain, such as "Santa Grand Hotel," to the Make-a-Wish Singapore organization, one that the Client particularly likes.
Unlike many other types of passes in Singapore these days, all of which are filed online, this particular type of work authorization requires manual filing which also prolongs the adjudication time. With this in mind, and hoping that the Client's staff has done the preparatory work upfront, Ms. Latiff is happy to file the application with the Ministry of Manpower and liaise with the adjudicating immigration officer to impress on him the urgency of the application.
Before we turn to some of the additional licenses the Client will require in Singapore, Ms. Latiff, also urges the Client to ensure that his staff makes all necessary arrangements with the Agri-Food & Veterinary Authority of Singapore ("AVA") so that the reindeer are not hampered by unnecessary delays. Generally speaking, the import of animals requires a health certification, quarantine and inspection by the AVA.
In Singapore, we are running into something novel as Ms. Latiff reminds us that the Client, who now holds his Miscellaneous Work Pass and who is accompanied by his reindeer, needs a wide variety of licenses to engage in the activities that his Work Pass allows him to take up. What licenses, you ask? The Client needs a rappelling license and to secure consent from home dwellers for his inevitable trespass during his visit in Singapore. Why a rappelling permit? The answer, though obvious is stunning in itself; given the densely built areas in Singapore, there is a serious shortage of chimneys for the Client to climb up and down and hence rappelling appears to be the most practical means to go up and down the high-rises.
Moreover, the Client needs to secure a Pilot License if he is looking to use his favorite mode of air transportation, which in turn requires him to file his flight plan; but even before that he will need to get a certificate of airworthiness for the sleigh among other certificates … . Oh, and before we forget this, the Client may well be tagged for having to pay a road tax for the sleigh and should he need to engage in the manufacture of goods on the spot, he would need all necessary manufacturing licenses as well.
Though we are sure that Ms. Latiff is ensured a spot on the "nice list," we are not so sure as to how the Client feels about Singapore at large with all the regulatory requirements. So while the Client is securing a license to leave the country, we are looking forward as to where he is taking us next.
Wait? This just in … .
We have it on good authority that the Client is on his way to the United States … .
Lisa Spiegel, an Immigration partner with Duane Morris LLP in the firm's San Francisco, California office, believes there are several options available to the client to come to the United States. Ms. Spiegel is not all opposed to Canada's claim that the Client in fact is a Canadian citizen. Alternatively, Ms. Spiegel would also happily await her Canadian colleagues' efforts to secure the Client's certificate of Canadian citizenship if the outright grant of the passport last year was deemed to have bypassed proper procedure.
The underlying reason for being so deferential to Canada on this topic has to do with the fact that the immigration law and regulations in the United States will otherwise make a legal entry into the country very hard, if not impossible for the Client. As the North Pole is not recognized as a visa waiver country, the Client would not be able to travel under the visa waiver program rules. He would instead need to apply for and be issued a B-1/B-2 visa to travel to the United States as a visitor. While his staff who are traveling throughout the year can be classified as true B-1 visitors under the argument that checking who should be on the naughty and who should be on the nice lists can be classified as the permissible activity of "undertaking independent research," the Client's proposed activities exceed those of a business traveler.
Armed with the knowledge that business traveler status will not suffice, Ms. Spiegel advises that if the Client held a Canadian passport, then there would be a pretty good business case to bring the Client in under the North American Free Trade Agreement's ("NAFTA") work authorized category of Management Consultant. Ms. Spiegel feels that this would be a perfect fit given that the Client realistically provides his services as an independent contractor. Finding a sponsor should also not be too difficult. Just thinking back to the situation in the United Kingdom where, was not for the fact that the Royal Mail does not hold a sponsor license, they would have been a perfect match. Hence in the United States, as the Postal Service does not need a license, they could definitely sponsor the Client …. That is, if they are not overrun by the other carriers of goods who undoubtedly also see the benefit of bringing the Client into their camp …. Relying on the NAFTA arrangement also has the great benefit that the Client could apply at the port-of-entry and hence if the Client's staff had inadvertently forgotten to prepare his application package in advance of his travel, this can be remedied quickly so that the Client can apply as he seeks entry.
For those naysayers who do not believe that the Client should hold a Canadian passport, Ms. Spiegel also has a solution, but the Client's staff had better prepare the petition in advance as the Client will require both an approved petition by USCIS and the accompanying subsequent visa, issued by the U.S. Consulate. Ms. Spiegel sees potential in either a P-1 visa, as an athlete, or a P-3 visa, as a performer of a culturally unique program. The tricky part of this route though is to identify the labor organization who will be able to provide a consultation in support of the application. As to the other major component to the petition, namely testimonials/letters from recognized experts, Ms. Spiegel has no concerns. We know how to get in touch with the Easter Bunny, Hanukkah Harry, and Sinterklaas to name a few of the Client's more famous peers.
Finally, if all else fails, Ms. Spiegel believes that we should not be surprised if on December 23rd, the President announces executive action as nobody would want the immigration system to be the Grinch who stole Christmas!
It is clear that though our Client is obviously loved by all, and many are awaiting his arrival in their respective countries eagerly, he will keep us all busy for the year to come to ensure all his visas for 2015 are filed timely!