We sometimes get asked for assistance by people who have got their Residence and want to apply for Permanent Residence Visa (PRV) but find they are prevented by a real fish hook in the Immigration Act – section 161. People with Residence who are charged and convicted of any offence within the last two years of having held a Resident Visa (RV) cannot get a PRV because they become liable for deportation; this applies to any conviction where the court could impose jail time of no less than three months, or more. We wrote about this before here.
What’s more, people may not be aware of it until they try to apply for a PRV, and that is the surest way to get Immigration interested. The harshness of s 161 is that it sets the bar so low, and wide. A recent online search of the law books reveals over 700 criminal or civil offences with a possible imprisonment period not exceeding 3 months. This means many, if not most, minor (and also not so minor) offences will give you an immigration headache.
Remember also, the person doesn’t have to be actually imprisoned – that’s usually reserved for serious, repeat offending. People convicted of a first drink ‘n drive offence for example, might typically get a fairly modest fine and will get 6 months’ disqualification, but surely not imprisonment. They are still caught though. Immigration, if it was feeling particularly nasty, could technically deport the person where their appeal right had expired and not been exercised.
The upshot of all this is that Residents with a blot against their name must make a detailed request to the Minister to suspend their deportation liability. Otherwise they will never be able to apply for a PRV. They have a right of appeal against deportation, but the correct avenue is an approach to the Minister, who has absolute discretion. See our article in December 2013 about the deportation Appeal process here.
So just about any conviction could stall your plans to travel overseas for more than 14-days, even across the Ditch. In one particular case our Resident client with a blot against his name got a measure of success by getting a ‘good behaviour bond’ from the Minister. If he stayed out of trouble, his liability would be suspended forever. However the bond lasts for 5 years and people may not apply for a PRV in the meantime. We contested this and found it ultimately rests on how the Act and Immigration Policy are read together.
Part of the Minister’s insistence that our client stay on his Resident Visa is that getting a PRV results in an enhancement of a person’s immigration status.
Under the Act holders’ entitlements under a RV and a PRV are exactly the same. The key difference in practice however is that a PRV holder can travel in and out of NZ any time they wish and are not subject to travel and sometimes other conditions, like Residents.
The bottom line for Residents then is this: if you get into trouble and your liability is suspended then enhancing your ‘status’ to enable extended overseas travel may be road-blocked for many years.