Section 161(1)(a) of the Immigration Act 2009 states that if a person who has held their Resident Visa for less than 2 years is convicted of an offence for which the court has the power to impose a custodial sentence of 3 months or more, the offender becomes liable for deportation.
The liability for deportation is not triggered by the actual sentence handed down but rather by the maximum sentence that the court has the power to impose. This catches many people out as offences such as careless or dangerous driving, or driving with excess breath alcohol, fall under this category. Whilst these offences are usually punished with a fine and suspension of the offender’s driving licence for 6 months, the fact that the court CAN impose a custodial sentence of 3 months makes section 161 apply.
For more serious offences where a custodial sentence is imposed, Immigration New Zealand (‘INZ’) is generally notified by the Department of Corrections. A custodial sentence includes imprisonment, home detention and periodic detention.
In cases where no custodial sentence has been imposed, INZ will normally only become aware of the conviction and consequential deportation liability when the individual applies for their Permanent Resident Visa (‘PRV’). This is because the applicable INZ 1175 application form requires the applicant to declare their convictions. Upon INZ confirming the conviction the applicant’s file will be transferred to the INZ Resolutions team and the applicant will be notified of their liability for deportation in due course.
An individual may consider not applying for their PRV so as not to flag their deportation liability to INZ. However, consideration must be given to the fact that the deportation liability stands for 10 years from the date of conviction unless it is cancelled by the INZ Resolutions team or the Minister of Immigration. Therefore by not applying for a PRV the individual would be unable to travel during the liability period, or would be unable to re-enter New Zealand as a resident if they left NZ. Having outstanding deportation liability also prevents a person from applying for NZ citizenship. The recommended course of action in most cases would therefore be to lodge the PRV application and to address the deportation liability robustly once contacted by INZ Resolutions. This way the applicant (although unable to qualify for a PRV) would be able to obtain further travel conditions on their Resident Visa enabling them to travel in and out of NZ while the deportation liability issue is resolved.
The INZ Resolutions team will officially notify a resident who is liable for deportation and will give them the opportunity to present their case against deportation by completing a detailed questionnaire and providing additional supporting information and documentation. Either senior immigration officers within the INZ Resolutions team or the Minister of Immigration personally, will make the determination to either cancel, suspend or enforce the deportation liability.
- Cancellation of the deportation liability will remove the liability for deportation and enable the resident to apply for a PRV.
- Suspension of the deportation liability can be imposed for a period not exceeding 5 years. If deportation liability is suspended, it will be cancelled after the suspension period has elapsed provided that none of the terms and conditions imposed on the Resident Visa holder during the suspension period are breached. Normally the suspension would be subject to the Resident Visa holder not committing an offence of any type during the suspension period. Deportation liability can be reactivated however if any of the suspension terms and conditions are breached during the suspension period.
- Enforcement of the deportation liability would result in the Resident Visa holder being deported unless they are able to lodge a successful appeal with the Immigration and Protection Tribunal (‘IPT’) on humanitarian grounds. Such an appeal must be made within 28 days of being issued the official Deportation Liability Notice (‘DLN’) by INZ. The IPT appeal process for residents facing deportation for criminal offending can take 1-2 years. The appeal format is an oral hearing conducted either at court or at the IPT’s offices.
In our experience, convictions at the lower level of offending are unlikely to result in deportation liability enforcement provided that the Resident Visa holder has the assistance of a suitably qualified and experienced immigration professional. Conversely, avoiding or ignoring the problem will not make it go away and could have a detrimental impact on the Resident Visa holder’s future in NZ. Therefore, the sooner we know that you have a problem the better.