Unlawful

If any of these circumstances apply to you or you have received a Deportation Liability Notice you need to ACT IMMEDIATELY. The sooner you contact us and initiate corrective action the better the potential outcome.

In many circumstances their are remedies available to you.

The consequences of not taking action may have a dramatic effect on your life and that of your family.

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D2.10 The requirement to be lawfully in New Zealand

D2.10.5 Requirement to hold visa to be in New Zealand

  1. No one other than a New Zealand citizen may be in New Zealand unless that person holds (or is deemed to hold) a current visa granted or deemed to have been granted under the Immigration Act 2009.
  2. Any person who is in New Zealand contrary to (a) above is considered to be in New Zealand unlawfully.

D2.10.10 Status of people lodging an application for a visa

See also Immigration Act 2009 s 14(2)

  1. Lodging an application for a visa does not:
    1. make the person’s presence in New Zealand lawful; or
    2. give the person the right to remain in New Zealand while the application is being considered; or
    3. give the person the right to apply for or be granted any other visa while the application is considered; or
    4. inhibit any deportation procedures under the Immigration Act 2009 that may apply to the person.
  2. Despite (a) above, an interim visa may be granted to maintain the lawful status of a visa holder who has applied for a further visa.

D2.10.15 Deportation liability if person unlawfully in New Zealand

See also Immigration Act 2009 s 154

A person unlawfully in New Zealand is liable for deportation.

D2.10.20 Categories of people who may be in New Zealand unlawfully

Persons who may be in New Zealand unlawfully include any of the following:

  1. the former holder of a temporary visa (whether granted or deemed to have been granted) who remains in New Zealand after that temporary visa expires;
  2. the former holder of a limited visa who remains in New Zealand after the expiry of that visa;
  3. the former holder of a limited visa which is given a shortened duration who remains in New Zealand after the expiry of that visa;
  4. a person whose residence permit was revoked under the Immigration Act 1987 before commencement of Part 12 of the Immigration Act 2009 and who did not:
    1. appeal against the revocation; or
    2. apply for and be granted a temporary permit under section 25(1)(d) of the Immigration Act 1987 before the revocation of the residence permit became effective.
  5. a child born in New Zealand on or after 1 January 2006 and deemed to be unlawfully in New Zealand under sections 373 and 374 of the Immigration Act 2009 (see A17.5).
  6. any of the following people who are liable for turnaround to whom section 115 of the Immigration Act 2009 applies:
    1. a person to whom a visa waiver applies and who fails to apply for a visa and entry permission or is refused a visa; or
    2. a person to whom a visa waiver does not apply and who is not the holder of a visa granted under the Immigration Act 2009; or
    3. a person who holds a visa but:
      • the visa is subsequently cancelled under section 64(1)(b), (c), (d), or (e) of the Immigration Act 2009; or
      • the visa is cancelled under section 67 of the Immigration Act 2009 while the person is in an immigration control area (unless some other visa is granted to the person or the person is a New Zealand citizen); or
    4. a person who is a stowaway; or
    5. a person who after arriving in New Zealand, has their transit visa cancelled by an immigration officer under section 90 of the Immigration Act 2009; or
    6. a person who is the holder of a transit visa and the transit period concerned has expired.

D2.10.25 People unlawfully in New Zealand must leave

See also Immigration Act 2009 ss 18, 19

  1. From the moment a person is in New Zealand unlawfully, they are obligated to leave New Zealand unless they are subsequently granted a visa.
  2. The obligation to leave arises if the person is unlawfully in New Zealand because:
    1. their visa has expired; or
    2. they entered New Zealand without a visa; or
    3. they entered New Zealand without entry permission; or
    4. they are unlawfully in New Zealand for any other reason.
  3. All people seeking visas to enter New Zealand will be advised of their obligation to leave New Zealand if they are in New Zealand unlawfully.
  4. The obligation for a person unlawfully in New Zealand to leave New Zealand arises whether or not they are aware of their obligation to leave or of their liability to be deported from New Zealand.

D2.10.30 People unlawfully in New Zealand arrested for other offences

Sometimes, people unlawfully in New Zealand are arrested by the New Zealand Police (Police) and placed in custody because they have committed other offences. Because action in relation to other offences takes precedence over deportation, it may not be possible to proceed with deportation immediately. If it is still appropriate to deport them, then a deportation order should be served and the officer should liaise with the Police to determine how the deportation can best be effected.

D2.15 Deportation liability: other grounds

D2.15.1 Deportation liability if person’s visa granted in error

See also Immigration Act 2009 s 155

A person is liable for deportation if the Minister of Immigration (the Minister) or an immigration officer determines that:

  1. their visa was granted as a result of an administrative error; and
  2. the visa was not cancelled under section 67 of the Immigration Act 2009; and
  3. no visa was granted under section 68 of the Immigration Act 2009.

D2.15.5 Meaning of granting visa or entry permission as result of administrative error

See also Immigration Act 2009 s 8

A visa is granted as a result of an administrative error if:

  1. it is granted to a New Zealand citizen (unless the person is a New Zealand citizen entering New Zealand in the circumstances described in section 13(4)(b) of the Immigration Act 2009); or
  2. it is granted to an excluded person (unless section 17 of the Immigration Act 2009 applies); or
  3. the person granting it intended to grant a visa of a type other than the one that was actually granted; or
  4. it is granted for a period exceeding the period specified in immigration instructions for visas of that type (unless the Minister or an immigration officer deliberately and properly granted it as an exception to the immigration instructions); or
  5. it is granted on the basis of the person holding a visa that was granted as a result of an administrative error; or
  6. it is granted in contravention of:
    1. a special direction; or
    2. immigration instructions (unless the Minister or an immigration officer deliberately and properly granted it as an exception to immigration instructions); or
    3. an instruction of a kind referred to in section 378(7) of the Immigration Act 2009.

D2.15.10 Deportation liability if visa held under false identity

See also Immigration Act 2009 s 156

  1. A person is liable for deportation if:
    1. the person is convicted of an offence where their identity is established and that identity is different to the identity under which the person holds a visa; or
    2. the Minister determines that the person holds a visa under a false identity.
  2. A person to whom a visa has been granted in a false identity is deemed to have been unlawfully in New Zealand since:
    1. the date the person arrived in New Zealand, if they have held a visa in a false identity since that date; or
    2. the day after the date on which a visa granted in the person’s actual identity expired, or was cancelled without another visa being granted, if they have held a visa in their actual identity after arriving in New Zealand.

D2.15.15 Deportation liability of temporary entry class visa holder for cause

See also Immigration Act 2009 s 157

  1. A temporary entry class visa holder is liable for deportation if the Minister or an immigration officer determines that there is sufficient reason to deport them.
  2. Sufficient reason includes but is not limited to:
    1. breach of conditions of the person’s visa;
    2. criminal offending;
    3. other matters relating to character;
    4. concealment of relevant information in relation to the person’s application for a visa;
    5. a situation where the person’s circumstances no longer meet the rules or criteria under which the visa was granted.

D2.15.20 Making the holder of a temporary entry class visa liable for deportation

See also Immigration Act 2009 s 155, 156, 157, 170, 171

  1. If an immigration officer determines that a person, who holds a temporary entry class visa, is liable for deportation under sections 155, 156, or 157, a deportation liability notice may be served on the person. D2.31 and D2.32 set out the matters that must be included in a deportation liability notice and how it must be served.
  2. Only officers holding the appropriate delegation (see A15.5) have authority to determine that the holder of a temporary visa is liable for deportation.

D2.15.25 Deportation liability of residence class visa holder if visa or citizenship obtained or held by fraud, forgery, etc

See also Immigration Act 2009 s 158

A residence class visa holder is liable for deportation if:

  1. the person is convicted of an offence where it is established that:
    1. the person’s residence class visa or entry permission was procured through fraud, forgery, false or misleading representation, or concealment of relevant information; or
    2. the person holds a residence class visa granted on the basis of a visa procured through fraud, forgery, false or misleading representation, or concealment of relevant information; or
  2. the Minister determines that:
    1. the person’s residence class visa or entry permission was procured through fraud, forgery, false or misleading representation, or concealment of relevant information.
    2. the person holds a residence class visa granted on the basis of a visa procured through fraud, forgery, false or misleading representation or concealment of relevant information.
  3. A former citizen who is deemed by section 75 of the Immigration Act 2009 to hold a resident visa is liable for deportation if:
    1. the person was deprived of his or her citizenship under section 17 of the Citizenship Act 1977 on the grounds that the grant, or grant requirement, was procured by fraud, false representation, or wilful concealment of relevant information; and
    2. that fraud, false representation, or wilful concealment of relevant information occurred in the context of procuring the immigration status that enabled the person to meet a requirement, or requirements, for the grant of New Zealand citizenship.

D2.15.30 Deportation liability of resident if visa conditions breached

See also Immigration Act 2009 s159

  1. A resident is liable for deportation if the Minister determines that;
    1. the conditions of his or her visa have not been met; or
    2. the resident has materially breached the conditions of his or her visa.

D2.15.35 Deportation liability of residence class visa holder if new information as to character becomes available

See also Immigration Act 2009 s 160

  1. A residence class visa holder is liable for deportation if, not later than 5 years after the date the person first held a residence class visa:
    1. new information becomes available that:
      • relates to the character of the person; and
      • was relevant at the time the visa was granted; and
    2. the Minister determines that the person would not have been eligible for the grant of the visa under the Immigration Act 2009 or immigration instructions if that information had been available at the time the visa was granted.
  2. The new information may relate to whether the person was, or should have been, an excluded person, or to rules and criteria relating to character contained within immigration instructions.
  3. For the purposes of this section, the date that a person first held a residence class visa must be calculated in accordance with section 161(5) of the Immigration Act 2009.

D2.15.40 Deportation liability of residence class visa holder convicted of criminal offence

See also Immigration Act 2009 s 161

A residence class visa holder is liable for deportation if they are convicted, in New Zealand or elsewhere:

  1. of an offence for which the court has the power to impose imprisonment for a term of 3 months or more if the offence was committed at any time:
    1. when the person was unlawfully in New Zealand; or
    2. when the person held a temporary entry class visa; or
    3. not later than 2 years after the person first held a residence class visa; or
  2. of an offence for which the court has the power to impose imprisonment for a term of 2 years or more, if the offence was committed not later than 5 years after the person first held a residence class visa; or
  3. of an offence and sentenced to imprisonment for a term of 5 years or more (or for an indeterminate period capable of running for 5 years or more), if the offence was committed not later than 10 years after the person first held a residence class visa.
  4. D2.15.40(c) applies:
    1. whether the sentence is of immediate effect or is deferred or is suspended in whole or in part;
    2. if a person has been convicted of 2 or more offences on the same occasion or in the same proceedings, and any sentences of imprisonment imposed in respect of those offences are cumulative, as if the person had been convicted of a single offence and sentenced for that offence to the total of the cumulative sentences; or
    3. if a person has been convicted of 2 or more offences, and a single sentence has been imposed in respect of those offences, as if that sentence had been imposed in respect of a conviction for a single offence.

D2.15.45 Determining periods from which person first held residence class visa

  1. For the purposes of D2.15.40(a)-(c), the periods of 2 years, 5 years, and 10 years after a person first held a residence class visa are to be determined exclusive of any time spent by the person in imprisonment following conviction for any offence.
  2. For the purposes of D3.35(c) and D2.15.35, a person first holds a residence class visa:
    1. on the date on which the person is first granted a residence class visa of any type in New Zealand; or
    2. if the visa was granted outside of New Zealand, on the first occasion on which the person arrives in New Zealand and is granted entry permission as the holder of the residence class visa; or
    3. if the person arrives in New Zealand and is granted entry permission as the holder of a residence class visa following a continuous period of absence from New Zealand of at least 5 years, on the date the person first re-enters New Zealand after the continuous period of absence; or
    4. if the person is a person to whom a visa waiver applies and arrives in New Zealand following a continuous period of absence from New Zealand of at least 5 years, on the date the person first re-enters New Zealand (and is granted a residence class visa) after the continuous period of absence.
  3. If a person was exempt from the requirement to hold a permit under the Immigration Act 1987 but is deemed to hold a residence class visa under section 417(3) of the Immigration Act 2009, for the purposes of this section, the person first holds a residence class visa:
    1. on the date they first entered New Zealand and were exempt from the requirement to hold a residence permit under the Immigration Act 1987; or
    2. on the date they first re-entered New Zealand and were exempt from the requirement to hold a residence permit under the Immigration Act 1987 following a continuous period of absence from New Zealand of at least 5 years.

D2.15.50 Deportation liability if refugee or protection status cancelled under section 146

See also Immigration Act 2009 s 162

A person who is not a New Zealand citizen and who was previously recognised as a refugee or a protected person is liable for deportation if his or her recognition is cancelled under section 146 of the Immigration Act 2009.

D2.15.55 Deportation liability of persons threatening security

See also Immigration Act 2009 s 163

  1. Where the Minister certifies that a person constitutes a threat or risk to security, the Governor-General may, by Order in Council, order the deportation from New Zealand of that person.
  2. The person named in the order is accordingly liable for deportation.
  3. The Governor-General may, by Order in Council, revoke that order.