Beyond Residence

There are many privileges of being a New Zealand Resident Visa holder. Naturally, there are also obligations that attach to this status which, for the most part, are easy enough to abide by. It is however important to be aware of some of the key “dos” and “don’ts” of being a Resident so as to avoid issues arising after the grant of residence.

Demonstrating a Commitment to New Zealand

There are differences between a Resident Visa and Permanent Resident Visa.[1] The plain Resident Visa has Travel Conditions – for the first time, they usually span 24 months[2]. This allows the holder multiple entries to and from New Zealand for that period only. When the Travel Conditions expire, a Resident Visa holder should normally be able to apply for a Permanent Resident Visa: a truly indefinite visa with no Travel Conditions. To do so, the Resident must be able to demonstrate a commitment to New Zealand[3] having:[4]

  • spent a significant period of time in New Zealand; or
  • acquired tax residence status in New Zealand; or
  • invested in New Zealand[5]; or
  • established a business in New Zealand; or
  • established a “base” in New Zealand.

For most Resident Visa holders, the first option is often the easiest. Essentially, it requires them to live in New Zealand for at least 184 days in each 12 month period for the 2 years directly before they apply for Permanent Residence[6].

Where a Resident Visa holder needs more time to meet the “commitment to New Zealand” requirement, they can apply for a Variation of Travel Conditions provided that:[7]

a) they are in New Zealand, or
b) they are outside New Zealand and the Travel Conditions have not expired.

There are other important restrictions which apply to the grant of a Variation of Travel Conditions to those on Resident Visas living outside New Zealand. The Courts have made it clear that it is the visa holder’s responsibility to investigate, understand and meet the conditions of their visa.[8] If you are on a Resident Visa, you must proactively research[9] or seek legal advice on the conditions of your visa because “residence, if not maintained, may be lost.”[10]

Charges and convictions

Another critical point:  if you are convicted of an offence whilst on a Resident or even a Permanent Resident Visa, you could face deportation.[11]

Very often, we see a Resident Visa holder who is either charged with or convicted of an offence involving driving with excess blood / breath alcohol[12]. If they haven’t yet been convicted, we are asked to provide the Court with an expert Affidavit explaining how a conviction could seriously damage their immigration status. This could be particularly helpful if they try for a Discharge Without Conviction under Section 106 of the Sentencing Act 2002. If the Section 106 application fails and the Resident Visa holder is convicted, Immigration New Zealand will start deportation action against them. As part of this process, the Resident Visa holder will usually be given the chance to give written reasons why deportation should be suspended or cancelled[13]. This may be the only real opportunity for the Resident Visa holder to argue their case with Immigration New Zealand, so the response should be carefully prepared. If the request is denied, they will be issued with a Deportation Liability Notice and the only options left at this point would be either to appeal to the Immigration and Protection Tribunal on humanitarian grounds, or to depart the country voluntarily.

In Summary

The moral of the story is:

  1. Do your homework. Understand the conditions of your visa and if in doubt, seek legal advice; and
  2. Don’t break the law. Over the years, we have seen many clients go through the unnecessary stress and trauma of losing their right to live permanently in New Zealand for reasons that could have been easily avoided.

The goal is not only to get residence, but to keep it once you’ve got it.

 

[1]           See Instruction RA1.1 and Instruction RA1.5 of the Immigration New Zealand Operational Manual for the currency and nature of residence and permanent residence visas, respectively.

[2]           See Instruction R5.66.5(a) of the Immigration New Zealand Operational Manual for exceptions relating to duration of travel conditions.

[3]           Immigration New Zealand Operational Manual, at Instruction RV2.5(c).

[4]           Immigration New Zealand Operational Manual, at Instruction RV2.5.1 to RV2.5.20.

[5]           This option only applies to residence visas granted under the Business Investor Category. See Instruction RV2.5.10(a)(i) and (ii) of the Immigration New Zealand Operational Manual.

[6]           Immigration New Zealand Operational Manual, at Instruction RV2.5.1.

[7]           Immigration New Zealand Operational Manual, at Instruction RV3.1(b).

[8]           The Court of Appeal decision in Dahiya v Chief Executive of the Ministry of Business, Innovation and Employment [2016] NZCA 546, is one example.

[9]           This can include researching the Operational Manual or Immigration New Zealand’s website which has useful guides.

[10]          Doug Tennent Immigration and Refugee Law (Revised 3rd ed, LexisNexis, Wellington, 2017) at 119.

[11]          Please note there are other scenarios that can give rise to the liability for deportation of residence visa holders. See Immigration Act 2009 for details.

[12]          Land Transport Act 1998, at section 56.

[13]          Immigration Act 2009, at section 172(1).

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This entry was posted in Business, Citizenship, Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas, Politics, Practice of Law. Bookmark the permalink.

2 Responses to Beyond Residence

  1. Ato Euini says:

    Thanks for a clear and simple document we could be aware of when we need to apply for resident/permanent resident visa for NZ I’m glad to learn all these from here for the first time What an efficient amazing share for us

    Like

    • Dew James - Staff Solicitor says:

      Thank you for your feedback Ato, and we are pleased you found the information in this post useful.

      Like

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