If you are unlawfully in New Zealand you should urgently seek advice on submitting a Section 61 request to regain your lawful status. You are able to do this even during the COVID-19 lockdown. Immigration New Zealand (INZ) have stated that during this time, priority is being given to these requests. INZ’s current timeframe estimate is that Section 61 requests will be allocated for processing within 2-3 working days of receipt.

Making a Section 61 request can be a complicated process, requiring an understanding of immigration law and procedure, as well as advocacy skills. If you would like assistance with making a Section 61 request, please contact Pathways to speak with a Licensed Immigration Adviser, so we can work with you to try and resolve your unlawful situation.

If your visa expired on or before 1 April 2020

In March, the Government issued an Epidemic Management Notice, meaning those whose visa expiry date falls between 2 April and 9 July 2020 (inclusive), have received an automatic visa extension until 25 September 2020. This extension has been applied to approximately 85,000 New Zealand temporary visa holders. However, if your visa expired on 1 April or earlier, you have not received the automatic extension and your status in New Zealand is unlawful. If this describes your current situation, it is imperative that you contact INZ immediately.

While there is no guarantee that your Section 61 request will be granted, it is the best course of action available to you if seeking to normalise your legal status.

If you are liable for deportation

If you are a temporary visa holder or a New Zealand resident and have received a deportation liability notice, and you plan to appeal, you should not delay. It is our strongest recommendation that anyone facing deportation have a specialist adviser or lawyer represent them as immigration matters are legally complex, and there are very serious consequences if deportation proceeds.

All deadlines for appealing to the Immigration and Protection Tribunal (IPT) continue to apply during the COVID-19 lockdown. If you would like advice and assistance lodging your appeal with the IPT, the Pathways team includes advisers who specialise in these matters and who are available to assist you.

If you are stranded in New Zealand 

INZ has also acknowledged the difficulties caused by current global travel restrictions. They have stated that applicants’ individual circumstances will be taken in to account during the assessment of an application. However, applicants may find themselves without a valid visa but unable to leave the country.

The Government is aware that there are international travellers who are unable to leave New Zealand due to coronavirus travel bans. To assist travellers who are unable to find temporary accommodation in which to self-isolate during the lockdown, the Ministry of Business, Innovation & Employment (MBIE) is operating The Temporary Accommodation Service (TAS). For more information on TAS, including the cost involved, visit the MBIE website.

If you are visiting from overseas and are experiencing financial hardship, it is recommended that you contact your embassy or consulate.

If you are unlawful and you have symptoms of COVID-19

Anyone who has symptoms of COVID-19 should immediately contact Healthline for free on 0800 358 5453, or a doctor. INZ have stressed that immigration status will not impact on people’s ability to receive health care. People unlawfully in New Zealand should seek medical advice if unwell. Their treatment will be in complete confidence and their information will not be passed on to other agencies.

If you require assistance with your immigration matters

If you are here unlawfully and need to make a Section 61 request, or if you have a deportation liability notice or deportation order, it is advised that you speak with a professional to receive individualised advice about your situation.

Although our physical offices are currently closed because of the Alert Level 4 COVID-19 Lockdown, Pathways remains open for business. All of our Licensed Immigration Advisers are working from home. If you telephone or email us we will receive and respond promptly to any of your communications.

Despite the current COVID-19 Level 4 Alert, the timeframes for lodgement of appeals to the Immigration and Protect Tribunal (IPT) have not changed. The nationwide lockdown means that though appeal deadlines remain the same, the IPT’s physical office is closed.

Appeals can be sent via email to [email protected]. The IPT will consider the date received as the date the completed appeal form is received by email, provided the form is signed and payment details for the lodgement fee ($700) are included. The IPT has advised that hard copies of all documents can be sent when services are operating again. Submissions and evidence on new appeals can be provided later when the offices re-open.

Submissions and evidence on active appeals are to be sent to the same email address as above. If you have an IPT hearing in the coming weeks, it will be adjourned unless you are specifically contacted and told otherwise.

Appeal against a declined residence decision

If your residence visa application to Immigration New Zealand (INZ) has been declined, and you wish to appeal, IPT must receive your appeal no more than 42 days from the date on which INZ notified you of its decision.

If you are considering lodging an appeal on the basis of a declined resident visa application, it is critical to be aware that an INZ residence decision can only be appealed if you believe:

a. the Immigration New Zealand decision is wrong because you do satisfy the residence instructions in place when you applied for your visa, and/or

b. you have special circumstances that mean the Minister of Immigration should make an exception to those instructions. See section 187(4) of the Immigration Act 2009 to find out more about “special circumstances”.

Understanding whether or not you can reasonably make one of these arguments, and knowing how to do so, can require specialised knowledge. As an appellant, you are permitted to represent yourself in IPT proceedings. However, given the technical expertise and advocacy skills necessary, we recommend representation by either an experienced immigration lawyer, or a licensed immigration adviser.

Appeal against deportation on humanitarian grounds (non-resident) – unlawful appellants

 If you have unlawful status (e.g. because your visa expired or interim visa lapsed) in New Zealand and wish to appeal to the IPT, you should make sure to meet the applicable appeal deadline for your situation. Depending on your circumstances, different timeframes apply. If you are unlawful because you no longer have a valid visa, you have 42 days in which to lodge your appeal. If you have been served a Deportation Liability Notice, your window in which to appeal is only 28 days.

In any case, for your appeal to succeed, you must show the Tribunal that:

a. there are exceptional humanitarian circumstances that would make it unjust or unduly harsh to deport you from New Zealand, and

b. letting you stay in New Zealand would not be against the public interest.

As with residence visa appeals, if you are a non-resident appealing against deportation, you are permitted to represent yourself, but given the complexities of immigration law, and the severe personal consequences of a failed appeal, we highly recommend that you seek representation. This is our recommendation for any IPT proceedings you may choose to bring, including Deportation Appeal by a Resident/Permanent Resident, Refugee and Protection Status Appeal, or a Deportation Appeal (Cancelled Refugee and/or Protection Status).

If you would like to enquire about making an appeal, or have any questions related to this blog post, please contact Pathways NZ to discuss your options with one of our Licensed Immigration Advisers. All of our staff are working from home during the lockdown, and remain contactable by email and phone.

Details on the process for lodging a residence visa appeal, including the necessary form, are available on the IPT webpage.

New Zealand Courts and Tribunals are currently operating with limited capacity. Details of closures and restricted access can be found here.

Immigration New Zealand’s recent change to increase the Skilled Migrant Category (SMC) passmark to 160 points has left many prospective applicants questioning how they will ever meet this new higher passmark. Hairdressers are particularly affected by this change.

There are some 350 hairdressers in New Zealand holding work visas and many of these people will have been planning to obtain New Zealand residence. Although these hairdressers will be able to claim points for skilled employment most will not now be able to reach the 160 points unless they can also claim points for a recognised qualification.

Experienced hairdressers who lack formal qualifications have the option to gain a New Zealand qualification, based on their skills and experience, through the New Zealand Hair and Beauty Industry Training Organisation (HITO). Hairdressers who are favourably assessed by the HITO can be awarded a New Zealand qualification. If this qualification is a level 4 New Zealand Certificate or National Certificate, or a higher qualification, then this qualification can contribute qualification points towards their SMC residence application. This process is called QbyE – qualification by experience.

For migrant hairdressers, gaining a recognised level 4 or higher New Zealand qualification, can contribute 40 points to their SMC points total and this can mean the difference between being eligible to apply for residence or remaining on work visas and having to find another pathway towards residence. For example: a 35-year-old hairdresser with 5 years of experience, who has been working in New Zealand for a year and has employment as a hairdresser outside of Auckland may claim around 125 SMC points (it is possible other points could be claimed). The additional 40 points awarded for a recognised NZ hairdressing qualification would mean this hairdresser would achieve the new SMC points threshold of 160.

Another significant recent change to the SMC policy was the introduction of more stringent English language requirements. Applicants who are not citizens of the UK, Ireland, Canada or USA must now evidence their English by undertaking one of several English language tests available.

More SMC policy changes will be introduced in 2017 which are expected to be increasingly targeted at the skill sets the Government wishes to attract and retain in New Zealand. It is possible these changes may further contribute to the challenges hairdressers face in obtaining residence.

The recent changes to the SMC residence category are indeed “challenging” and this is especially the case for particular employment roles such as hairdressers. While the process to obtain New Zealand residence has become more difficult this goal is still possible if hairdressers are able to claim SMC qualification points and can meet the English standard. However they and their employers will need to be proactive in this endeavour as the current opportunity may not be available from around mid-2017 when the further significant SMC policy changes are due to be introduced.

For expert immigration advice contact a Pathways Licenced Immigration Adviser.

In Nelson this week the first ever trial in New Zealand on human trafficking is underway. While the landmark trial remains on-going, a mere 24 hours into the trial a number of significant points which are relevant to a number of migrant workers coming to New Zealand are playing out in the media. Issues include the involvement of relatives or friends obtaining job offers, and payments being made for those job offers.

This human trafficking trial presents a timely reminder of the risks and complexities of immigration matters and of the perils of not obtaining objective and independent advice. Further, while the issue of paying for a job has not been specifically stated here, the indications from the media reports to date are that payment may have been made to secure the job. It is illegal in New Zealand for any employer to demand payment for a job offer. Unfortunately, in spite of the illegal status of such practices are not uncommon. It appears this is one of the many elements of this complex human trafficking case in which there are three New Zealand resident defendants.

The case for the defence is one of denial and accusing the migrant workers of having “cooked-up stories” for the purpose of avoiding getting into trouble with Immigration New Zealand. The reports would seem to indicate the workers in this case were complicit in providing false stories to Immigration New Zealand in order to try and obtain a residence outcome on the basis of a false refugee claim.

The reality is a number of migrant workers pay significant fees to recruitment agents or other “intermediaries” who assist them in finding employment in New Zealand and while many are very happy in their roles once they arrive, unfortunately some do find, as was the case with the 23 workers in this case, that they have been deceived and there is no work for them. The alleged level of deception in this human trafficking case has been the catalyst for these landmark charges. However, even if a migrant’s situation is not as dramatic as is being shown in this court case it remains incumbent on the migrant to be proactive and seek independent professional advice. Not only will this allow the migrant the best opportunity to rectify their situation however it will also give them the best opportunity possible to clear their name with Immigration New Zealand and protect their own interests.

Once an individual becomes unlawful they lose the automatic right to lodge a new visa application. This means if they want to try and recover a lawful status while remaining in New Zealand they must make a Section 61 request to Immigration New Zealand (INZ). If a visa has been expired for just one day any new visa application will be treated as a Section 61 request.

A specialist INZ team based in Auckland assesses all Section 61 requests. INZ will decide whether to consider the request, and whether to grant it, based entirely on the information and documentation provided. INZ are not required to request any further information and they are not required to provide a reason for their decision. The Immigration Act 2009 is very clear that there is no right of consideration for an unlawful person and only special circumstances warrant the grant of a visa under Section 61.

If the request is unsuccessful then any further request will only have an increased chance of success if there is relevant new information and evidence. It is therefore critical that any Section 61 request is supported by the very strongest submission. Although there are no mandatory documents for a Section 61 request the most comprehensive and relevant supporting documentation should be submitted from the outset.

In making a Section 61 request the person is bringing their unlawful status and their circumstances to the attention of INZ. Consequently if their Section 61 request is refused the person can expect their information to be passed on to the INZ Compliance Team who will then consider instigating removal action. Recently we became aware of a situation where, when a Section 61 request was refused, INZ Compliance requested that the applicants passport be returned to them rather than the applicant so that they could begin removal action. This was in spite of the person still having a right to appeal their deportation liability. For this reason we are now reluctant to provide passports with any Section 61 requests.

Other options to rectify a person’s immigration status comprise an appeal to the Immigration and Protection Tribunal (IPT) and a request directly to the Minister of Immigration for their intervention. The IPT appeal must be made within 42 days of becoming unlawful and can only be made on humanitarian grounds. Removal action cannot be instigated by INZ against any unlawful person until this period allowable for appeal has passed. Requests to the Minister are a last resort and should be made only in highly mitigating circumstances and when all other options have been exhausted.

If a person is deported from New Zealand they are banned from returning for between 2 to 5 years.

Our advice is always that if you are unlawful you should always take action as soon as possible to recover your lawful visa status and if this action is not successful then you should voluntarily leave New Zealand and keep INZ informed about your travel plans to avoid any removal action. If you are deported from New Zealand this can impact on your ability to obtain a visa to other countries in the future.

If you are unlawful you should always take action as soon as possible to rectify your immigration status. Anyone who is unlawful is at high risk of being subject to deportation and their situation must be carefully reviewed. This is a complex and highly specialised area and any person facing these problems should seek professional advice from a suitably experienced adviser.