Immigration
Earlier this week his legal team contacted us for urgent legal advice. It occurred to us that our other clients may wish to have answers to some of these questions too. We never break client confidentiality, so on this occasion, we simply refer to our client as "Santa".
Immigration
What documentation should Santa hold to be able to enter New Zealand?
Santa needs an acceptable travel document, such as a passport or Certificate of Identity, to enter New Zealand.
As Santa is a stateless person then he will not have an acceptable passport, as this must confirm the bearer's nationality. Therefore, Santa will be expected to present a Certificate of Identity which must be issued by an official source recognised by the New Zealand government. At present (and very sadly) the New Zealand government does not recognise the state of the North Pole.
Luckily, an appropriately delegated immigration officer can 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 elves failed to furnish Santa with an appropriate travel document and that the delivery of this year's Christmas presents is a genuine reason for him to visit New Zealand, he is likely to be granted entry. Phew!
What would Santa's immigration status be while in the country?
Santa must present himself to an immigration control area, which will usually be a port or an airport, within 72 hours of arrival. Of course, Santa will be in and out within 72 hours and it is unlikely he'll be able to pause for long enough to stand in a queue at the airport. Luckily for Santa, he will be deemed to hold a work visa. This is because the crew of any ship, which we assume will include a heavily laden sleigh, carrying cargo (Christmas gifts) between any foreign port (the North Pole) and New Zealand will be deemed to hold a work visa from the time the ship arrives at port of entry until it is given clearance to leave.
Can Santa engage in all of his usual activities (extreme sports such as climbing roofs and chimneys; piloting a reindeer propelled craft; delivering goods manufactured overseas; and general acts of magic) while holding the proposed status?
There is no issue with Santa undertaking extreme sports whilst in New Zealand. However, as his work visa is valid for less than two years, he will not be eligible for free health care whilst in New Zealand. Therefore, Santa will need to ensure that he has health insurance.
Talking of health, if Santa fails to meet the "acceptable standard of health" requirements then he may lose his work visa. If Santa has a Body Mass Index of over 35, then he won't meet the health requirements. Looking at recent photographs of Santa, this could be an issue. Therefore, Santa 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 Santa is unlikely to need hospitalisation or high cost pharmaceuticals whilst in New Zealand.
Santa cannot lawfully pilot a reindeer propelled sled in New Zealand unless he meets the registration requirements or exemptions of the Civil Aviation Act 1990. This can take some time to procure, so hopefully the elves have been liaising with the Civil Aviation Authority.
Santa may need to declare the presents to the New Zealand Customs Service. Even though the presents are arguably not goods of a commercial nature, they may still attract a payable duty. Also, the Ministry of Primary Industries (MPI) will be anxious to inspect the presents, the sleigh and the reindeer to ensure that they do not present any biosecurity risk to New Zealand. If Santa fails to present these to the MPI then he be fined $100,000 or end up in jail for five years.
Santa's work visa will only permit him to work as the crew of a shop 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. 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 Santa's good character if he is seen to be undertaking some form of witch-craft.
What else should Santa do in order to maintain compliance with New Zealand immigration law and regulations?
Santa needs to take great care to ensure he does not have any stowaways, such as elves, on his sleigh. Quite aside from the potential biosecurity risks of unscreened elves entering New Zealand, any undeclared elves will be deemed to be unlawfully present in New Zealand and will be liable for arrest and detention.
Santa is already planning a return trip in 2015 are there any potential immigration law/regulation changes he should be aware off?
It's good to know that Santa is coming back! As long as he can get on top of the health (weight) issue and he does not threaten New Zealand's biosecurity with unchecked reindeer, elves and presents; then New Zealand's immigration authorities are very likely to welcome him back next year!
Employment
Santa may have a number of helpers with him. Are there any issues that Santa needs to be aware of prior to bringing them into New Zealand?
Obviously, the elves will need appropriate work visas. They may be granted work visas, in the same way as Santa, as crew members of a ship delivering cargo to New Zealand.
Alternatively, we can arrange for them to be granted specific purpose work visas prior to arrival into New Zealand. The applications will need to be submitted at the nearest Immigration New Zealand Branch. Unfortunately, as NZ does not recognise the state of the North Pole, it is likely that the applications will need to be submitted through Immigration New Zealand in Washington DC or London. They are both very efficient branches, so we anticipate that the visas will be processed within two weeks, so therefore in time for Christmas.
As these helpers will be assisting Santa, they are likely to be employees, not contractors. As the work will be undertaken in New Zealand those employees and Santa will be subject to mandatory employment law in New Zealand. This includes:
- All of Santa's helpers must have a signed employment agreement. Our advice is that Santa implements this before the helpers commence work, particularly if he thinks he might need to invoke a trial period provision. It may be that Santa could have a fixed term contract tied to the work required to be completed. The delivery of presents in a 12 hour period is probably a valid reason for having a fixed term employment agreement under the Employment Rights Act 2000.
- Santa must keep wage and time records, deduct PAYE and ACC levies, pay the minimum wage, pay holiday pay (at 8% of earnings if the helpers work for less than 12 months) and make contributions to KiwiSaver if his helpers elect to join.
- Santa must ensure that his helpers get rest breaks. The requirements are not as strict as previous years so if the work load justifies it, breaks can be taken at a time convenient to Sana and his workers.
- Santa and his helpers owe each other a duty of good faith. This means Santa needs to very careful if he has issues with any of his helpers in terms of performance or behavior. He will need to ensure the helper has all of the relevant information pertaining to any concern and is provided with an opportunity to respond to it before a decision is made on how to resolve the issue. If Santa fails to do this then his helper will have a personal grievance which can be actioned and Santa may end up in the Employment Relations Authority. The Authority has the power make determinations awarding damages and penalties to an employee.
- A final point to consider bearing in mind the nature of the work being undertaken, is that Santa should have a health and safety policy and have implemented measures to prevent risks to the helpers (harnesses may be needed for work at heights, helmets and other safety equipment is recommended and high viz vests are probably appropriate). Santa should also implement a drug and alcohol policy – given the nature of the work there may be a danger of drinking on the job – random drug testing is highly advisable.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
