Special Cases
When something has gone wrong.
A letter arrives declining your application, or raising concerns about your character or your health. Your visa lapses and you realise you are here unlawfully. A conviction you thought was behind you turns into a deportation liability notice.
These are the matters where the ordinary process has stopped working and something else has to be done. They have short deadlines, and the options narrow quickly.
If you are in one of these situations, the single most useful thing you can do is get advice before you respond. What you say in the first reply tends to set the shape of everything after it.
What we act on
Four kinds of problem.
Visa problems
Applications declined, concerns raised about character or health, and requests for reconsideration. Character and medical waivers where a requirement is not met.
Section 61
For people in New Zealand unlawfully, who can no longer apply for a visa at all. A request that discretion be exercised in their favour.
Deportation liability notices
Responding to a questionnaire or a notice, and arguing that liability should not arise, or should be suspended or cancelled.
Deportation and appeals
Appeals to the Immigration and Protection Tribunal, on the facts and on humanitarian grounds, and requests for cancellation of deportation.
Section 61
A request, not an application.
If you are in New Zealand unlawfully you cannot apply for a visa. What you can do is ask Immigration New Zealand to grant one anyway, under section 61 of the Immigration Act 2009.
The difference between a request and an application is not a technicality. Section 61 is exercised at absolute discretion, which means something specific:
- Immigration New Zealand is not required to consider it, although in practice it does.
- It is not required to give reasons for saying no, as it would be for a declined application.
- A refusal cannot be appealed, in the Tribunal or the courts, other than by judicial review in rare circumstances.
So there is no second look to fall back on. The request has to carry its own weight the first time.
Being unlawful also means you are already liable for deportation. No notice has to be issued first, and once any appeal right has expired a deportation order can follow.
What it has to show
Weighed, not simply decided.
At minimum you have to show that but for being unlawful, you would meet the requirements of a visa category — a genuine and stable partnership, say, or a job offer from an accredited employer with a valid job check.
Then the balance
How long you have been unlawful, and how it happened — a lapsed visa reads differently from a decline. What you did to put it right. Whether you are likely to end up here again.
And the rest of your position
Whether there is a pathway to residence. Health and character, including anything found in an earlier application. Family here, particularly a New Zealand partner or children. What you contribute.
If it succeeds
Usually a short visitor or open work visa — three to six months — enough to lodge a proper application and have it assessed. Residence is rarely granted this way.
If it is refused
Special direction, and then the airport.
A further section 61 request is possible where your circumstances have changed significantly, or the first one was deficient in some real way. Beyond that there is one more step: a request to the Minister of Immigration under section 378, known as a special direction.
The Minister will not normally consider one unless a section 61 request has already been made and refused. Compliance will not usually move to deport someone with a special direction request on foot, though that is practice rather than protection, and it is sensible to tell them it has been filed.
If that fails too, leaving promptly matters. Being deported damages your prospects not only here but in other countries.
Deportation liability
How people become liable.
- Becoming unlawful — no longer holding a valid visa.
- Breaching visa conditions, or no longer meeting the criteria the visa was granted under.
- Criminal offending. For residents this is harsher than most people realise, and drink driving is the most common route in.
- False, misleading or concealed information in support of an application, including an earlier one.
- Other character matters.
Some of these are automatic. Others arise only once the Minister or a delegate makes a determination — which is a point at which it can still be argued.
The drink-driving trap
If you are a resident and you are convicted of an offence the court could imprison you for three months or more — whether or not it does — and the offending happened within two years of your residence being granted, you can be served with a deportation liability notice.
Before the notice
For residents, Immigration New Zealand's practice is to write first, explaining why you may be liable and inviting a response through a deportation liability questionnaire. Depending on what comes back, liability can be suspended for two to five years, or cancelled.
A discharge without conviction
Where you are facing a charge, a section 106 discharge is deemed an acquittal and, for residents, avoids liability arising at all. We prepare the affidavit for your criminal lawyer setting out what a conviction would mean for you and your family. For temporary visa holders, note that liability normally still arises even with a discharge.
Challenging it
What is open to you depends on what you hold.
Residents, before a notice
Answer the questionnaire, and argue for suspension or cancellation. This is the cheapest and least painful place to win.
Residents, after a notice
An appeal to the Immigration and Protection Tribunal. Where liability arises for something other than a conviction, you can appeal both on the facts and on humanitarian grounds. Where it arises from a conviction, humanitarian grounds only.
Temporary visa holders
Show Immigration New Zealand good reason why deportation should not proceed, and appeal to the Tribunal on humanitarian grounds.
Anyone
Argue there is no factual basis for the liability in the first place. It is worth testing before accepting the premise.
The humanitarian threshold is high, and it is right to say so plainly. You must show exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh to deport you, and that letting you stay would not be contrary to the public interest. The courts have described this as well outside the normal run of circumstances.
The appeals that succeed usually turn on the interests of family here, conditions in the home country, or serious health needs that cannot be met there.
Before you instruct us
We will tell you what we think your chances are.
Some people have both the will and the means to fight to the very end. Others do not, for reasons that are entirely sound — cost, exhaustion, or odds that do not justify either.
So before we act on a response, a request or an appeal, we assess the merits and give you a straight view of what we think is likely to happen and what it will involve, including cost. Then you decide. We would rather tell you a case is weak than take your money to find out slowly.
How we can help
We can assist with the following.
- Potentially prejudicial information letters: responding before a decision is made, which is the best moment to act.
- Character and medical waivers: submissions where a requirement is not met.
- Reconsideration: for an onshore temporary visa application declined while you still hold a valid visa.
- Section 61 requests, and further requests where circumstances have genuinely changed.
- Special direction requests to the Minister of Immigration.
- Deportation liability questionnaires and notices: the evidence to gather, and the submissions to go with it.
- Tribunal appeals: against declined residence applications, and against deportation on the facts or on humanitarian grounds.
- Requests for cancellation of deportation under section 177.
- Criminal charges: the affidavit for your criminal lawyer setting out the immigration consequences of a conviction, in support of a discharge without conviction.
Questions
Frequently asked questions.
My visa expired. What happens now?
You are unlawfully in New Zealand, which means you can no longer apply for a visa and you are already liable for deportation — no notice has to be issued first.
The route back is a section 61 request. Act quickly; how long you have been unlawful is one of the things weighed against you.
What is a section 61 request?
A request that Immigration New Zealand exercise its discretion to grant you a visa even though you cannot apply for one. It is made under section 61 of the Immigration Act 2009.
It is a request rather than an application, and the difference matters: no reasons need be given for refusing it, and a refusal cannot be appealed.
What are my chances on a section 61?
They turn on whether you would qualify for a visa but for being unlawful, and on the balance of everything else — how you became unlawful, how long ago, your family here, your character and health, and whether there is a pathway to residence.
We will tell you honestly what we think before you spend money on it.
If a section 61 succeeds, do I get residence?
Rarely. The usual outcome is a short visitor or open work visa, three to six months, which puts you back in a position to lodge a proper application and have it assessed on its merits.
Can I make a second section 61 request?
Yes, but it needs a reason to succeed where the first did not — circumstances that have changed significantly, or a first request that left out something important.
I am a resident and I have been charged with drink driving. Am I at risk?
Possibly, and sooner than you would expect. If the offence is one the court could imprison you for three months or more — whether or not it actually does — and it happened within two years of your residence being granted, a deportation liability notice can follow.
Talk to us before you are sentenced, not after. A discharge without conviction avoids liability arising at all, and we can prepare the affidavit your criminal lawyer needs.
I have had a deportation liability questionnaire. Is that the same as a notice?
No, and that is good news. For residents, Immigration New Zealand usually writes first and invites your reasons before serving a notice. Depending on your response, liability can be suspended for two to five years, or cancelled outright.
It is the cheapest point at which to win, and the one most often wasted.
What is a humanitarian appeal?
An appeal to the Immigration and Protection Tribunal arguing that exceptional circumstances of a humanitarian nature would make it unjust or unduly harsh to deport you, and that letting you stay would not be contrary to the public interest.
The threshold is high — the courts have put it as well outside the normal run of circumstances. What tends to succeed is the interests of family here, conditions in the home country, or health needs that cannot be met there.
My application was declined. Can I just apply again?
Sometimes, but not always, and not always wisely. Depending on what you hold and why it was declined, a reconsideration may be open to you, or an appeal, or a fresh application that deals with the reason for the decline.
Applying again without addressing the reason usually produces the same answer.
How quickly do I need to act?
Quickly. Reconsiderations and appeals have deadlines measured in working days, and time spent unlawfully counts against you on a section 61.
If you have a letter in your hand, the clock has probably already started.
Next step
Bring us the letter.
If we think the case is weak, we will tell you that.
Request a consultation