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If you’re here illegally: Understanding your options

Applying for a visa as a special case (“section 61” visas)

Immigration Act 2009, s 61

If your visa has expired and you’re now in New Zealand unlawfully, one option is to apply for a visa as a special case under section 61 of the Immigration Act. This is generally a last resort – it’s mainly intended for when you’ve tried all other channels for getting a visa. You might be able to succeed where you’ve got some very strong reason for being allowed to stay in New Zealand.

Immigration New Zealand has “absolute discretion” in these cases, meaning that there are few restrictions on them in how they go about making the decision, and you have no appeal rights if you’re turned down. Legally, Immigration NZ doesn’t have to even consider your application – although in practice they consider all applications at least to some degree.

The full range of visas can be granted under section 61. Once you’ve been granted a visa under this section, you have the same immigration status as anyone else who’s been granted that particular type of visa.

Immigration Act 2009, ss 61(1)(b), 177(1)

Note: Section 61 visas can only be granted if a deportation order hasn’t been made against you. In practice, however, you can still apply under section 61, and if the Immigration Officer dealing with your application decides you should be granted a visa, they can talk to the officer who made the deportation order and ask them to cancel it. That way a new visa can be granted.

When you’ll have strong arguments for a visa as a special case under section 61

Immigration New Zealand will look at:

  • your immigration history – for example, whether you’ve been in New Zealand unlawfully before
  • your current situation – including why you need to stay in New Zealand, how long you’ve already been here unlawfully, why you don’t have a current visa, what efforts you’ve made to try to get one, and whether your unlawful status is because of something outside your control
  • your health and character.

They can also consider:

  • whether you’ve got a likely pathway to New Zealand residence
  • whether you’re well-established here with strong family ties
  • whether you’re a security risk.

Immigration New Zealand has said you’ll have a strong case if:

  • you can provide them with a full picture of your situation and why you’re a special case, and
  • there’s solid evidence of the contribution you’ve made to New Zealand, and
  • you haven’t deliberately attempted to stay here unlawfully for a long time.

To get a section 61 visa, you don’t have to show exceptional or humanitarian circumstances, but your case does usually need to be something out of the ordinary.

Can I challenge the decision if I’m refused a section 61 visa as a special case?

If you’re refused a visa under section 61, you have no right to appeal the decision to any appeal body or court.

You can apply to the High Court for “judicial review” of the decision, but this is a limited option where the judge will look mainly at the decision-making process Immigration New Zealand followed. For more about judicial review, see the chapter “Dealing with government agencies”.

You may be able to complain to the Ombudsman: see the chapter “Dealing with government agencies”, under “Challenging decisions and conduct of government agencies”.

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Immigration

Where to go for more support

Community Law

www.communitylaw.org.nz

Your local Community Law Centre can provide free initial legal advice and information.

Immigration New Zealand

www.immigration.govt.nz

Immigration New Zealand is the government organisation that deals with visa applications and other immigration issues. It’s part of the Ministry of Business, Innovation and Employment.

www.immigration.govt.nz/about-us/policy-and-law/how-the-immigration-system-operates

You can read Immigration NZ’s Operational Manual at www.immigration.govt.nz/opsmanual

Immigration and Protection Tribunal

www.justice.govt.nz/Tribunals/immigration/immigration-and-protection

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