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Rupert Ward Immigration and Criminal barrister explains how drinking and driving (DUIs) can harm your Immigration status

Can I be deported for a DUI offence?

I am an Immigration and Criminal barrister so I see the impact of DUIs and Immigration frequently.

Have you got a work visa or are you a fairly new resident?   New Zealand takes a strict approach to drinking alcohol and driving (a DUI).  Immigration also takes this very seriously – If you have been convicted of driving under the influence this can greatly impact on your Immigration status.

Those who commit such an offence on a work visa will no longer be considered to be of good character.   This means that when a future immigration application is made they will have to submit information to support a “character waiver”.   This is essentially a chance to persuade Immigration that although a crime has been committed that person should be “excused” and should still be allowed to remain – the seriousness of the offence, previous offences, the time since the offence and the connections and contribution being made to New Zealand are all possible factors.   A strong personal statement and good references can often help.   Such a conviction on a temporary visa can also give rise to a ground for deportation.

If a person who has a excess breath alcohol conviction manages to remain in the country limits are placed on the future applications they may make for quite some time:  If a person has been convicted at any time during the last five years, of an offence (including a traffic offence), involving dangerous driving, driving having consumed excessive alcohol (including drunk driving and driving with a blood or breath alcohol content in excess of a specified limit) or driving having consumed drugs a character waiver will also be needed when applying for residency.

Those who are already residents may be shocked to discover that in certain cases a DUI can give rise to a liability for deportation.   Often this is bought to Immigration’s attention when a resident applies for permanent residency.

How can a resident be deported for a DUI?

For a first or second drink driving offence (either the lower 250 or the higher 400 limits) the maximum penalty is imprisonment for 3 months.

Section 161 of the Immigration Act provides for the deportation liability of residence class visa holder convicted of criminal offence.   It says:  “(1) A residence class visa holder 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… So if a person has held their residency visa for less than 2 years at the date the drink/driving offence a deportation liability can arise.  It is worth noting that it does not matter what sentence the person was actually given for this section to take affect what is important is that a sentence of 3 months or more was possible.    Steps can be taken to minimise the likelihood of being deported – this includes completing a deportation liability questionnaire.  On receipt of that Immigration may decide to suspend or cancel a person’s deportation liability.

 To maximise your chances of remaining in any Immigration application where there is a conviction an affected person needs to ensure that all relevant information and evidence is provided to INZ so that it can undertake the decision making process with all the facts.  Strong evidence is often needed to show Immigration why that person should be allowed to remain.

I have had a number of successful cases where people with DUIs have not been deported despite a deportation liability arising.     I also frequently obtain limited licences for those prohibited from driving a result of a drinking offence.

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Areas of Practice

Immigration Services

Rupert Ward Barrister

phone: 03 310 8103
mobile: 021 877 441