Drink driving, Residence and Deportation

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.

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About Simon Laurent, Lawyer

Principal of LaurentLaw Barristers & Solicitors. NZ immigration law specialist.
This entry was posted in Immigration Appeals, Immigration Problems, Immigration Visas and tagged , , , , , , , , , , . Bookmark the permalink.

19 Responses to Drink driving, Residence and Deportation

  1. Pingback: Stay completely out of trouble to get Permanent Residence ASAP | samuelames

  2. Pingback: Stay completely out of trouble to get Permanent Residence ASAP | Laurent Law Blog

  3. Advik says:

    Dear sir

    I am currently facing a situation like this. I am currently New Zealand Residence and I had drink driving conviction within two years I got my residency. After I applied permanent residence, recently they have issued me a letter warning me I am facing risk of deportation and a questioner. This is my only conviction ever. I am currently devastated and not sure what will happen to my future.I have very stable job which falls under long term skill shortage list. what will be the chances of issuing me a deportation Liability notice under these circumstances

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    • One likely outcome is that you can get a Deportation Liability Notice and that Immigration will suspend this for 2 or 3 years. If you do not have any other convictions they will cancel it after that time. However, in order to get the suspension you need to put your case forward carefully and fully. We have done this successfully for a number of people in the last 2 – 3 years.

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      • Advik says:

        Dear sir

        I don’t have any conviction. However I have had a fight with my partner and neighbour call police said we were loud. Police came and take statement. I have not been charged. My partner and me still together. Even After this insidence my partner got residency apply with me and haven’t had any issue. How will this affect to my case. I got the police report and no other conviction except the drink driving offence.

        Thank you very much in advance

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      • If you did not receive a conviction then this incident should not create any problem for you with Immigration. However, even though you say “I don’t have any conviction” you also mention that you do actually have a drink driving conviction. If that is the case then it will depend on when you went to Court for the drink driving case.
        If you wish to get clear advice on this point, then please call our office for an appointment.

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  4. Advik says:

    Dear Sir,

    I finally have a result for this matter and I would say it is exact outcome that mentioned above. Your reply help me a lot to keep my hopes up. But what I learnt, it is so not worth going through this trouble. it was stressful

    Regards
    Advik ,

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  5. Manpreet singh says:

    Hello sir madam i have charged drunk driving in nz it is my 1st offence my blood alchol level is 212 its emergency situation i drive because my daughter not wel this time i have spouse work visa what can i do

    Like

    • It is likely that Immigration will give you a Deportation Liability Notice. We recommend that you get professional help to make a request to Immigration New Zealand to cancel such a Notice. Otherwise you will probably have to leave New Zealand.

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  6. Emosi Masivou says:

    Dear sir,

    I have a drink driving offence two to be exact , not sure wat to do but am in a very stable job have a daughter to look after, have had my residence visa in the last two years which expires this may 2017 , not sure wat to do so scared for myself and this circumstances.

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    • The offence will come to Immigration’s attention when you have to renew your Residence travel conditions in may. You should renew the travel conditions but you will not get a Permanent Resident Visa at that time. Instead, it is then likely that Immigration will commence the deportation process and invite your comment on why you should keep your Residence. At that stage you should engage professional help to do a good response. We have successfully got deportation suspended and then cancelled for a number of people in your situation. At this stage there is nothing for us to do, but you should get in touch if Immigration contacts you about possible deportation.

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  7. Satish Chand says:

    HI there my son had drink driving and driving while disqualified in 2011 ,2012 and was convicted within the first two years after the residence permit. we did asked immigration in 2012 when we lodge our pr we been told than that he cant apply pr because of that.Just this i went to renew my pr because my passport expired and asked immigration officer if my son can apply pr after checking all details in their system they told us that now he can apply for pr.So now when he did apply for pr the case officer send him notice that he is liable to be deport what can be done now

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  8. Anon says:

    Hi Sir,

    I was recently charged with a DUI and dangerous driving. I am a first time offender and have no history of drink driving from my home country either. My breathalyser reading was 706 and I am currently on a 28 day licence suspension. My hearing is on the 5th of October and I intend on pleading guilty. I am here on a Talent Visa (Accredited Employer) and was wondering if immigration would contact me at all based on this charge? I understand they will be informed. Do they then have to contact me or is it on a case to case basis? What are the odds that they would serve me a deportation notice based on this charge? Also, would they inform my employer seeing as it an Accredited Employer visa? I am willing to have my day in court and then tender my resignation with my current employer and leave for home. I am concerned that if immigration deport me or start deportation proceedings, that will be a mark on my personal record for life. What would be the best way to avoid this from occurring? I would also like to avoid a situation where my employer is brought into this.

    Thank you and hope to hear from you soon.

    Like

    • It is likely that Immigration will issue a Deportation Liability Notice (DLN) against you. It is hard to say whether Immigration will notify your employer directly.
      When the DLN is served on you, you do have the right to show good reason why the DLN should be cancelled, but this may not be successful.
      In order to avoid the DLN entirely, you should arrange to leave New Zealand as soon as you have completed the sentence issued to you on the Guilty plea. You probably won’t be allowed to leave before then, and there is a risk that Immigration could issue the DLN before then.

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      • Anon says:

        Thank you for getting back to me. I understand that if the sentence is a fine and disqualification of my license I will be served with a Notice of Fine. How long does this process take? Could I pay this fine on the day of the court hearing to facilitate an early exit from the country? The court hearing will be after my last day of employment. I have confirmed this so would like to a settle any obligations, inform immigration and leave before any further actions are taken. Thank you for taking the time to get back to me. It means the world.

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      • To receive specific advice on the process to be followed, please contact our office for an appointment. We will not discuss the details of your case in the public domain any further.

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