A lot of people are being caught recently by a section of the law which allows Immigration to try to deport Residents who have committed very minor offences. It’s quite easy to get into trouble like this, and a lot harder to get out.
There are lots of ways to get deported – using a false identity, violating the conditions of your Work Visa, becoming an overstayer. But there is one particularly nasty one reserved for those who have only recently got Residence. If you are convicted of an offence where the Court has the power to imprison you for 3 months or more, and the offence took place within 2 years of your first Resident Visa, then you can be served with a Deportation Liability Notice.
The important thing to understand is that it doesn’t matter what the Court actually gives you. You may only have to pay a fine. It is what the Court could have done that is the key. Take the example of drink driving. Under Section 56 Land Transport Act 1998, if you are stopped and tested for a blood alcohol level of 400 micrograms per litre or more, then the Court is allowed to imprison you “for a term not exceeding 3 months”. That is, the Judge could put you away for 3 months (although that doesn’t happen very often for a first or second charge). This intersects perfectly with the power to deport which we mentioned above, for an offence which has a maximum penalty of “3 months or more”.
Once you have a conviction like this on your record, the risk of being deported stays with you. Forever. Or, at least, until you get Citizenship – but you have to be a Resident for 5 years before you can apply for that. The message is simple: Don’t get into any trouble of any kind whatsoever in your first 2 years of Residence.
Now, if you face a problem like this, it does not automatically mean that you will be deported. There is a process which you can follow in order to keep your Residence:
- You may get a letter from Immigration warning you that you face the risk of deportation. Immigration does get information from the Police or the Courts which allows them to match Residents up with convictions and identify people who they could throw out of the country. We have recently been asked to help someone with exactly this situation. Immigration asks you if you can give them reasons why they should not deport you;
- If they do go on with it, you then receive a Deportation Liability Notice. This doesn’t let them deport you straight away. It tells you that you can file an Appeal Against Deportation with the Immigration and Protection Tribunal within 4 weeks of the Notice being served on you;
- It may take a year or more before your Tribunal hearing comes up. This is like an informal court, and you can bring witnesses to explain why you should keep your Residence. Immigration usually sends a lawyer to attend, and can present witnesses as well. The Tribunal issues a written decision after the hearing;
It is, however, not an easy task to win such an Appeal. You have to show that your have “exceptional humanitarian circumstances” which justify you keeping your Residence. Something exceptional is “unusual” or “out of the ordinary”, and it is quite a high hurdle to cross. The seriousness of the offence which led to your deportation liability will be an important factor to be weighed up against everything that you can say in your favour.
If you fail the Appeal, and you don’t then leave, Immigration can arrive at your home or work with a Deportation Order, hand it to you and arrest you. They can put you in a prison cell until they have booked a flight to send you back home. By this stage of proceedings there is basically nothing realistic you can do to save yourself.
We somehow doubt that someone who has a clean record except for one driving offence, and who has not annoyed Immigration in any other way, would lose their Residence just for that. Even so, it should be clear that you really don’t want to get caught up in the deportation process and all the stress, disruption and stress attached to it.
If you are facing trouble like then this, then you should get professional advice. It could be us or it could be another experienced immigration lawyer or licensed immigration adviser. You need to find someone who has done this kind of case before, It will probably cost you a bit of money, but the cost of getting things wrong is much greater – losing your Residence and being forced to leave New Zealand, maybe never to return. And all because you didn’t get someone else to drive you home.