Deportation Liability for New Zealand Residents12 Feb 2024

Obtaining New Zealand residence is a significant day in the life of any migrant who harbours a dream to be able to call New Zealand their permanent home. However, many new residents are unaware that if they are later convicted of an offence, they could become liable for deportation under S.161 of the Immigration Act 2009 (s.161).

This section of the Act outlines the circumstances in which New Zealand residents convicted of certain offences can be liable for deportation. One clause states that they are liable for deportation if, within 2 years of being granted their New Zealand residence, they are convicted of an offence for which the Court could impose a prison sentence of 3 months or more. The people we see most often caught by s.161 are those convicted of driving with excess blood/breath alcohol (‘EBA’). Under the Land Transport Act 1998, a person over the age of 20 who exceeds the EBA limits (blood alcohol reading of 80 milligrams of alcohol per 100 millilitres of blood, or 400 micrograms of alcohol per litre of breath) can be sentenced to up to 3 months imprisonment even if they are only a first time EBA offender. It is of no relevance whether the resident is/was actually imprisoned. What matters is that they could potentially have been imprisoned for 3 months or more.

Immigration New Zealand (‘INZ’) will normally become aware of the Resident Visa holder’s conviction(s) when these are declared upon applying for a Permanent Resident Visa (‘PRV’) or variation of their resident visa travel conditions (‘VOTC’). INZ is also made aware of offences directly by the Department of Corrections if a migrant has a custodial or community sentence imposed. Once INZ is aware of the conviction, their “Resolutions Branch” will write to the resident and/or their last listed adviser/lawyer and will advise them of their liability for deportation. The Resident Visa holder will be given a questionnaire to complete within 28 days and to make submissions explaining why the deportation should not be enforced.

It is very important for any New Zealand resident visa holder to obtain specialist immigration advice if they have a conviction, or if they are contacted by INZ regarding any conviction, as their New Zealand residence and their future in the country could be at stake. A Delegated Decision Maker (‘DDM’) at INZ Resolutions acting on behalf of the Minister of Immigration has the ability to either enforce, or cancel, the deportation liability, or to suspend the deportation liability for a period of up to 5 years – the more serious the offending the longer the suspension period. Our specialist Licensed Immigration Advisers at Pathways to New Zealand™ have had considerable success over many years in obtaining suspensions of deportation liability for many clients. In such cases the deportation liability is suspended subject to the Resident Visa holder not being charged or convicted of any further offences of any type (in NZ or offshore) during the suspension period.

At the end of the suspension period, your Pathways adviser reconnects with the INZ Resolutions team, and a further police check is undertaken, and the Resident Visa holder is asked to sign a statutory declaration confirming that they have complied with the suspension period conditions. A letter is then subsequently issued by a DDM confirming the deportation liability is cancelled. At that stage, the Resident Visa holder can become eligible to apply for a Permanent Resident Visa (PRV). Note that a Resident Visa holder cannot apply for a PRV or act as a sponsor while they are liable for deportation, even if their liability is suspended.

During the suspension period the Resident Visa holder can apply for a VOTC to enable travel overseas pending the deportation liability being suspended and the PRV being granted.

If you or a friend or family member are not yet a New Zealand citizen and have been charged with, or convicted of, an offence, please urgently contact Pathways® and speak with Anthony Callaghan or Charlotte Summers who have the specialist knowledge and first-hand experience in this key area.