Section 61 – What can you do if you are unlawfully in New Zealand?   What if there is no visa for me? – Rupert Ward – Immigration Barrister

Section 61 – What can you do if you are unlawfully in New Zealand?   What if there is no visa for me?

Sometimes a person can find that they are unlawfully in New Zealand.  Immigration can deport people unlawfully in the country and this can have an important effect on future visas (not just in New Zealand but elsewhere for other countries as well).  Therefore, in many situations it will be best to leave and return, if possible, on a new appropriate visa. However, in some circumstances as section 61 visa may be obtained.

A section 61 visa provides a discretionary route which allows Immigration to permit a person unlawfully in New Zealand to remain here legitimately. A section 61 visa is really a visa of last resort because Immigration retains complete discretion.  A section 61 visa is not like a usual visa application – Immigration does not have to consider the request; it does not have to provide any reasons in relation to its decision; it does not have to grant the type of visa the applicant wants and does not even have to grant a visa at all – even if the applicant would usually meet the requirements of a different visa. There is not even a formal application form to guide you on content.

When making a section 61 application it is vital to give Immigration as much information as possible to support your application – It is advised that a lawyer assists you with making that application as there is no real formal guidance due to the discretionary nature of the section 61 visa.  For example, although you do not have to provide documentation never providing documentation is rarely likely to be appropriate.  If you fail to provide Immigration with the right documents it does not have to ask you to provide information even if you miss important documentation – The section 61 visa application can simply be rejected. There is no route of appeal to the Immigration Protection Tribunal.

Therefore the evidence that needs to be submitted should be considered carefully and will vary depending on the applicant’s circumstances. For example, it may be appropriate to submit health evidence, work experience documentation, evidence relating to family ties and so on. It will all depend on the circumstances.

If there appears to be no visa application which suits your position, but some other reason suggests that you should be able to remain in the country a section 61 application may provide a potential route to remain in New Zealand.

If a section 61 visa is refused an applicant must leave New Zealand quickly. If you do not you may be served with a deportation order.  However, in certain circumstances that too can be appealed.

It is important never to be casual about Immigration applications –  not treating applications with importance, acting too slowly, not providing full information and (even accidentally) misleading Immigration are all key areas where people make mistakes which can have lasting and significant consequences.