Common situations involving deportation liability

Liability for deportation under the Immigration Act 2009 can arise in a number of situations. If a person becomes liable for deportation, they can be served a deportation liability notice and then a deportation order. After a deportation order has been served on a person, deportation can be executed by;

  • taking the person into custody; and
  • escorting the person or arranging the person to be escorted to an airport or port; and
  • ensuring that the person is placed on board a craft and detained there until the person leaves New Zealand (see s 178 Immigration Act 2009)

Executing deportation may involve a person being arrested by the Police. It is not a pleasant experience.

If deported, a person is likely to face a period of prohibition on returning to New Zealand (see s 179 Immigration Act 2009). Being deported may also negatively affect a person’s ability to apply for visas to countries such as Australia, United Kingdom, United States and Canada. For example in New Zealand, a person deported at any time from any country is subject to s 15 exclusion, preventing them from being granted any visa at all unless granted a Special Direction by a senior immigration official or the Minister of Immigration. Being deported is therefore not something to be taken lightly.

Common situations where deportation liability arises

The most common situation we see at Laurent Law where a person becomes liable for deportation is where a person is in New Zealand unlawfully ie. they do not have a visa, they are an “overstayer” (see s 154 Immigration Act 2009). This situation usually arises when a person is in New Zealand on a Temporary Visa but the Temporary Visa expires. Provided the person has not yet been served a deportation order, they can file a request for a visa under s 61 Immigration Act 2009 in order to “regularise” their status ie. become lawfully in New Zealand again.

Laurent Law is frequently instructed by clients to assist with s 61 requests. These are not applications, they are requests and Immigration New Zealand s 61 officers have “absolute discretion” as to whether they will grant a Visa. Immigration officers do not have to give any reasons for their decision regarding a request under s 61. Laurent Law has enjoyed our fair share of successes and failures when it comes to s 61 requests, but over time we have developed a high level of experience with how s 61 requests can best be presented in order to maximise the chance of success. Please contact us if you require assistance with a s 61 request.

Can I be deported if I hold a Residence Visa?

The answer is yes, but you may be able to do something to prevent it from happening. The most common situation where a Residence Visa holder becomes liable for deportation is where the person receives a criminal conviction. We discuss this below.

What criminal convictions can make me liable for deportation if I hold a Residence Visa?

S 161 Immigration Act 2009 states that a residence class is liable for deportation if he or she is convicted, in New Zealand or elsewhere, –

(a) 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—

(i) when the person was unlawfully in New Zealand; or

(ii) when the person held a temporary entry class visa; or

(iii) not later than 2 years after the person first held a residence class visa; or

(b) 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

(c) 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; or

The classic situation we see is where a person receives a conviction for driving while over the breath or blood-alcohol level (“drink-driving”) (an offence under s 56 Land Transport Act 1998), not later than 2 years after the person first held a Residence Visa. Because a person convicted of this offence can be sentenced to a term of imprisonment of 3 months, it falls under (a)(ii) above. The Residence Visa holder can become liable for deportation. The process is usually this:

1. INZ Resolutions Branch in Wellington will send a letter to the convicted person, stating that consideration is being given to serving them with a deportation liability notice and inviting comment on why service of the notice should not proceed. Clients often instruct Laurent Law to assist at this “inviting comment” stage. We assist people to explain their circumstances, to show that deportation from New Zealand would be a disproportionate outcome to the gravity of the criminal conviction.

2. Once comment is received, INZ Resolutions Branch will prepare the file and a briefing note for a senior immigration official – or in some cases the Minister or Associate Minister of Immigration – to review and decide whether to;

(a) issue a deportation liability notice; or

(b) issue a deportation liability notice but then cancel deportation liability; or

(c) issue a deportation liability notice but then suspend deportation for a specified period of time.

Where deportation liability is suspended, it is usually suspended for 3 or 5 years, subject to the person receiving no further criminal convictions during this period. If a person does receive a further criminal conviction, they can be served with a deportation liability notice again and the process at (1) above restarts.

Over time Laurent Law has successfully assisted with many situations involving Residence Visa holders becoming liable for deportation owing to receiving a drink driving conviction or something similar. Our experience indicates that if the “inviting comment” stage is properly handled and competent submissions are provided, there is a good chance it can result in deportation liability being cancelled or suspended. Please contact us if you receive a letter from INZ Resolution Branch inviting comment on whether you will be served a deportation liability notice.

Recent success story: more serious criminal conviction

One question arising, is what if a person is convicted of an offence which is more serious than drink-driving? Laurent Law recently assisted a Residence Visa holding client who had been convicted of aggravated robbery, an offence under s 235 Crimes Act 1961, the maximum term of imprisonment being 14 years. The outcome was for deportation liability to be suspended for 5 years. Given the seriousness of the conviction, this was probably the best possible outcome to reasonably expect.

Our client was a young man, a citizen of South Africa with family in New Zealand and Australia and no family to return to in South Africa. He had suffered some difficulties with alcohol consumption but was taking steps to remedy this through counselling. He was gainfully employed in New Zealand.

The significant concern for our client was being deported to South Africa, away from his family and support structures and where unemployment and crime rates are high. We pointed out in our detailed submissions that our client’s life prospects would be severely limited if he were forced to return to South Africa and argued that this “punishment” would be disproportionate to the gravity of the offence that he had committed.

It was very fortunate that the decision maker in our client’s case determined to suspend deportation liability. However, if our client receives another criminal conviction during the suspension period, all bets of a positive outcome would probably be off. The more repetitive a person’s actions demonstrated through their unwillingness to commit to good behaviour and the more serious the offence, the less likely the decision maker will cancel or suspend deportation liability.

If a deportation liability notice is served on a Residence Visa holder who is convicted of a criminal conviction, the person has 28 days to file an appeal to the Immigration and Protection Tribunal against liability for deportation. This involves demonstrating to the Tribunal that the person has exceptional humanitarian circumstances that make it unjust or unduly harsh for them to be deported and that it is not contrary to the public interest for the person to remain New Zealand – this is quite a difficult series of legal tests to meet.

Can I be deported if I am a New Zealand citizen?

With one exception mentioned below provided for in the Citizenship Act 1977, no. For our New Zealand citizen readers, you may be interested to know that no New Zealand citizen can become liable for deportation from New Zealand under the Immigration Act 2009 in any circumstances (s 13(3)(b) Immigration Act 2009). Therefore once you are granted citizenship, criminal offending cannot, under the law, result in you being deported from New Zealand. Any criminal convictions you obtain prior to an application made for New Zealand citizenship may however be taken into account in determining whether you will receive citizenship by grant.

There is one exception to this, see s 16 Citizenship Act 1977. This allows the Minister of Immigration to revoke a person’s New Zealand citizenship if aged 18 or over if the person has;

(a) acquired the nationality or citizenship of another country by any voluntary and formal act, and acted in a manner that is contrary to the interests of New Zealand; or

(b) voluntarily exercised any of the privileges or performed any of the duties of another nationality or citizenship possessed by him in a manner that is contrary to the interests of New Zealand.

For example, consider the example recently reported by the media of a female ISIS fighter with two young children detained in Turkey who was discovered to be a dual New Zealand and Australian citizen. The Australian Prime Minister revoked the woman’s Australian citizenship, which drew an angry response from New Zealand Prime Minister Jacinda Ardern, who accused Australia of “exporting its problems”. Jacinda Ardern cited the welfare of the two young children in determining how New Zealand would respond, which sounds like having regard to the United Nations Convention on the Rights of Child which New Zealand is signatory to, a piece of international law which often arises in the Immigration Law context.

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