SKILLED MIGRANT CATEGORY : ENGLISH LANGUAGE
Lexis Nexis Conference
June 2007
1. Introduction
1.1 For some time policy has allowed a range of alternatives to the IELTS test for non-native English speaking applicants. The question is whether the minimum that is required contained in the alternative tests is sufficient or whether the IELTS level is in fact the level that is required – in which case why have the alternative tests? SM5.5(c) provides that an immigration officer may require an applicant to provide an IELTS certificate in terms of paragraph SM5.5(b)(i). In such cases the IELTS certificate will be used to determine whether the principal applicant meets the minimum standard of English.
1.2 The reference to paragraph SM5.5(b)(i) is that an IELTS test report of 6.5 overall band establishes the minimum standard of English.
1.3 The English language issue is also relevant in terms of a claim for points for a partner’s skilled employment or recognised qualification.
1.4 The first main alternative is SM5.5(b)(ii) where a tertiary qualification has been obtained in the English medium.
1.5 The second major alternative is 12 months work experience in a skilled position: SM5.5(b)(iii).
1.6 SM5.5 (b)(iv) allows an applicant to establish through other means that they are a competent user of English by reference to the following factors, which is a non-exhaustive list:
-
the country in which the applicant currently resides
-
the country(ies) in which the applicant has previously resided
-
the duration of residence in each country
-
whether members of the applicant’s family speak English
-
the nature of the applicant’s current or previous employment (if any) and whether that is or was likely to require skill in English language
-
the nature of the applicant’s qualifications (if any) and whether the obtaining of those qualifications was likely to require skill in the English language.
1.7 The question is whether the term “may require” is an unfettered discretion that entitles an immigration officer to ask or demand an IELTS test even where the applicant has met the criteria in one of the alternative qualifying categories.
1.8 If the discretion is unfettered then the policy alternatives are meaningless. It is a broad principle of administrative law that a discretion is never unfettered, but must normally be exercised fairly and reasonably.
1.9 It is either an automatic process that all immigration officers everywhere always require an IELTS test or, if they have been instructed by their senior managers to always so require, then the term “may” is misleading and the exercise of a discretion contained within policy is fettered (by the outside-of-policy direction to always require the test).
1.10 It may be that there is no written direction but if as a matter of practice or where it has become routine that immigration officers always require a test, then again policy is not transparent and the exercise of a discretion indicated by the word “may” has been rendered nugatory.
1.11 The point is that policy invites applicants to file an application on a particular basis. One would have thought that the 12 month work exception exists in policy since given that such persons have been functioning in the work place (and especially where they have a job offer for the same work environment for their residence application), therefore it seems reasonable to assume that the person will continue to function well in their skilled position and that for all sorts of reasons they remain attractive immigrants (in spite of the fact they may not be equivalent to 6.5). Similarly, the fact that a person who does not speak fluent English at the 6.5 level but has nevertheless managed an English medium qualification suggests they are able to function quite well in an English environment.
1.12 To put it in other words, what point is there in requiring a person to meet 6.5 who has been working in a skilled position already, and has been doing so for more than 12 months and will continue in that employment. Or, where someone has shown they can acquire knowledge through study in the English language successfully as a result of their previous educational achievement, what point is there to demanding they should be at 6.5.
1.13 The point is that as soon as an immigration officer exercises his or her “discretion” to require an IELTS test then what policy requires is that the person reach 6.5 It is the writer’s view that the reference back to SM5.5(b)(i) did not in fact necessarily require that 6.5 be reached. RRB case law has probably now however become sufficiently entrenched to suggest that without a High Court appeal, it will be difficult to argue otherwise. If the discretion is exercised automatically and without a reason (ie, either as a matter of course or because of a directive from above, or arbitrarily) then we are left with a rule that in all cases IELTS 6.5 is required. In which case the policy that lists alternative bases for meeting the English level is a policy that lacks transparency. It is hollow and has no meaning.
1.14 Based on the general legislative and statutory interpretive principle that words are not empty or hollow, and that Courts will normally interpret words to give them all a meaning then the term “may require” cannot be an unfettered discretion.
1.15 Nor can it be an arbitrary power depending on which immigration officer you get or whether the officer takes a dislike to the client or the agent. It must be principled and there must be a reason.
1.16 The point is however that, as is so often the case, the need to state a reason seems to be ignored.
2. Case-law study
2.1 Residence Appeal 15404, (31 May 2007), E M Riddiford. In this case the appellant asked why he had to meet the IELTS test in view of the evidence they had provided. The officer simply responded by quoting SM5.5. That is to say INZ simply stated its powers that it “may require” without stating why. The RRB found (at paragraph 26) that it was satisfied that the officer had exercised its discretion reasonably. See at para 26:
“Once the couple had taken the tests INZ was entitled under SM5.5c to rely on the test results to determine if they meet the minimum standard of English…”.
The special circumstances jurisdiction was refused. Comment: If a case truly includes an unreasonable request then it may be better to refuse to do the IELTS test at the outset, otherwise the provision of a lower IELTS establishes a ground to refuse. The problem will be to determine whether a request is reasonable at the outset.
2.2 Residence Appeal 15351, (10 May 2001), E M Riddiford. The appellant had relied on a recognised qualification in the English medium (SM5.5(b)(ii)). As has been argued above, in what seems to be an automatic response, the officer requested an IELTS. During a telephone conversation the applicant admitted that he had earlier sat an IELTS and had only reached 5.5. At this point the officer proceeded to decline the case on good character grounds (without having determined that a good character breach had occurred). The appeal was upheld with a clear direction to establish any reason for requiring an IELTS. At paragraph [49] the Board stated:
“On the other hand, the INZ discretion in SM5.5c is still subject to the public law principle that an administrative discretion must not be unreasonably exercised…”.
INZ had not recorded its reasons for rejecting that evidence, and there was no evidence on the file that indicated INZ had considered the appellant’s evidence before requiring an IELTS.
Comment: When faced with an IELTS request in some (strong cases) it may be preferable to require INZ to provide the reason or reasons for the request. It is the author’s view that a proper reason cannot be: that the officer suspects the person does not meet 6.5, and that in fact 6.5 is not the required level (as discussed above). The reasons the officer may have thought the failure to disclose the 5.5 test was dishonest is because of a view that 6.5 had to be reached, and that by concealing the truth the applicant had been guilty of misleading conduct. It is important to note that the Board has referred it back notwithstanding the fact that the appellant only scores 5.5, and therefore the fact that 5.5 was reached earlier is not fatal (otherwise the referral back would have been unnecessary).
2.3 Residence Appeal 15320, (10 May 2007), M A Malaghan. Another appeal involving a Filipino with a qualification in the English medium. There is no discussion relating to the lawfulness of the discretion to require the IELTS. Unlike the case above (delivered on the same day) the appellant had sat the test but had only reached 6.0. The complaint by the appellant that she had not been permitted an oral test with the officer was met with the Board’s discussion that such a test was not required. The question of whether the request was itself reasonable in the face of the English medium degree was not discussed.
Residence Appeal 15372, (16 April 2007), A M Clayton. Again a degree applicant from the Philippines. Again no discussion of the discretion to require the IELTS. Appeal declined.
2.4 Residence Appeal 15304, (16 April 2007), P Millar. Concerns arose in relation to the appellant’s English as a result of the settlement interview. Some of the questions had to be “translated” to the applicant. It seems that this created a reasonable enough concern to require an IELTS.
2.5 Residence Appeal 15299, (16 April 2007), P Millar. No discussion of the discretion to require IELTS when the person had an English medium qualification. Once requested and obtained, the failure to meet 6.5 became fatal.
2.6 Residence Appeal 14954, (19 March 2007), G Melvin. Appellant had refused to provide IELTS but claimed 12 months employment in New Zealand. No consideration of the reasonableness of the IELTS demand but case was successful in obtaining a special circumstances recommendation (to which the Minister concurred). The reasons given were the labour shortage (Chinese chefs), post-positive employment (which would also have been a ground for holding the IELTS demand was not reasonable) and issues involving the three children and the one child policy which remained uncertain.
2.7 Residence Appeal 15218, (22 February 2007), P Millar. The appellant had provided an IELTS (without being asked) that did not meet 6.5, but claimed to rely on the medium of instructing exception. The IELTS certificate was held to disestablish the claim that the appellant met the minimum standard.
2.8 Residence Appeal 15117, (16 November 2006), G Melvin. The appellant had relied on the 12 month working in New Zealand exception. The Board held it was not unreasonable to require an IELTS since the Korean appellant’s employment was with a Korean company (this reason had been given by INZ as the principal ground for requesting the IELTS).
2.9 Residence Appeal 14979, (30 August 2006), M A Poole. The Board suggests that it is not unreasonable to require an IELTS where a Japanese chef has only ever worked in Japanese restaurants whilst in New Zealand (it seems the Board approached the working exception not as a relaxation of the 6.5 rule because the person has employment in New Zealand, but as nevertheless requiring a 6.5 equivalent). Special circumstances however was granted. He was a qualified chef, an integral part of the management of a particular restaurant involved in the day to day running of the entire operation (not just the kitchen), 15 years a Japanese cuisine chef, and with three New Zealand citizen born children. English language was the only negative factor.
2.10 The Board was impressed that although the appellant had not reached an acceptable level of competence in the English language, he nevertheless was someone who:
“… will persist in day-to-day interactions in English, at whatever level he is exposed to them, with a view to maintaining control and responsibility of his own affairs and enhancing his English language capacity. He does not then, present as someone who, having obtained residence, would decline into a comfort zone where the pursuit of greater English language competence was unnecessary.”
2.11 Finally, in Residence Appeal 14908, (6 June 2006), G Melvin, although there was no discussion as to whether the request for IELTS was reasonable, special circumstances were found: appellant was a highly valued nurse who had worked in New Zealand as a health services manager (had not been registered as a nurse in New Zealand), in a practice that relied heaving on her language skills in Korean (the medical practice specifically targeting the Korean population in Auckland).
3. Conclusion
3.1 Careful advice needs to be given before proceeding with an applicant who comes within one of the IELTS alternatives. In some cases it will be reasonable for INZ to request an IELTS test. It will be difficult however to predict exactly where such a request will be reasonable, though the case law will provide a helpful yardstick. The fact that a person has worked for 12 months in New Zealand may not be conclusive. In some circumstances where English language is the only issue special circumstances may apply, but these need to be strong connectors with New Zealand and there needs to be a proven ability to function in the work place.
3.2 For many however the policy remains complicated and lacks transparency. Many have fallen into the trap of thinking that where an English medium degree has been achieved, for example, that an IELTS mark lower than 6.5 can be filed. It is arguably not a good character breach to have achieved a lower than 6.5 IELTS score and to nevertheless rely on an IELTS alternative. See the author’s general paper in terms of the intention requirement in good character determination.
|