Fit and Proper Person (Business)

At a glance

The fit and proper person requirement applies to principal applicants under New Zealand's business and investor immigration categories. It ensures applicants are accountable for the actions of businesses they influence [BM1].

Definition

Principal applicants must meet fit and proper person requirements when applying under any of the following categories [BM1]:

• Migrant Investor categories
• Active Investor Plus category
• Business Investor Work Visa instructions
• Business Investor Residence Category
• Entrepreneur Work Visa category
• Entrepreneur Resident Visa category
• Employees of Relocating Businesses category
• Global Impact Visa programme

Applicants are considered fit and proper people if [BM2]:

• all businesses they have influence over have complied with all relevant immigration, employment and taxation laws; and
• they have never been convicted of any offence arising in the course of, or resulting from, business dealings; and
• they have never been convicted of an offence involving dishonesty in New Zealand or a foreign country; and
• they have never been involved in business fraud or financial impropriety.

It is not relevant to the assessment where the business operates or is registered, or whether the applicant has subsequently ceased to hold a position of influence [BM2]. Relevant law includes, but is not limited to, the Accident Compensation Act 2001, Employment Relations Act 2000, Health and Safety at Work Act 2015, Holidays Act 2009, Immigration Act 2009, and Minimum Wage Act 1983 [BM2].

Applicants are considered to have influence over a business if they exercise significant influence over its management and administration, including when acting as a director or senior manager [BM2].

Application in decisions

Immigration New Zealand assesses fit and proper person requirements at the time of application and, for many visa categories, continues to monitor compliance throughout the visa period. For residence visas subject to conditions under section 49(1) of the Immigration Act 2009, the holder must continue to meet fit and proper person requirements during the condition period. Failure to do so may render the visa holder liable for deportation.

Deferral of applications pending charges or investigations

When a business visa application is assessed and the principal applicant has been charged with, or is under investigation for, an offence that could cause them to fail the fit and proper person test, immigration officers must usually defer the decision for up to six months [BM2.1]. The applicant must be informed in writing of the deferral and its period [BM2.1]. Once the charge or investigation is resolved, processing resumes and the officer applies the fit and proper person instructions under BM2 [BM2.1].

If the matter remains outstanding at the end of the initial deferral, the application is referred to a Head of Operations or Visa Operations Manager to consider a second or subsequent deferral [BM2.1]. Any further deferral must be justified after consultation with Operations Support and Legal Services, and the applicant must be notified in writing of the decision and the deferral period [BM2.1].

Interpretation & edge cases

The fit and proper person requirement is an ongoing obligation. It applies not only at the initial application stage but also when a visa holder requests a change of business or variation of conditions, and when applying for a renewal or further visa. Business immigration specialists may reassess whether an applicant continues to be a fit and proper person at any point during the visa lifecycle.

Exception for minor non-compliance

Despite the fit and proper person requirement, a business immigration specialist may approve an application that otherwise meets all requirements where there has been an incident of non-compliance with any relevant immigration, employment or taxation law, provided they are satisfied the breach was of a minor nature and evidence is provided that the cause and consequences of the breach have been remedied [BM3]. To determine the nature of the non-compliant activity, the specialist may consult with WorkSafe New Zealand, the Labour Inspectorate, the Accident Compensation Corporation, or any other relevant agency [BM3].

Citations

• BM1 — Requirement to be a fit and proper person
• BM2 — Definition of a ‘fit and proper’ person
• BM2.1 — Applications usually deferred
• BM3 — Applicants who are not ‘fit and proper’ people