Occasionally, migrants find themselves unlawfully in New Zealand. This is usually because their visa has lapsed and they have overstayed, or they have breached the conditions of their visa. The general position is that a person in this situation has an obligation to leave the country.  However, in “special cases”, they may make a request under section 61 of the Immigration Act 2009 for a visa to be granted without them having to leave the country like they typically would – known as a “section 61 request”.  This article discusses some general matters that should be considered before making a section 61 request.

Section 61 of the Immigration Act 2009   

Section 61 provides that the Minister of Immigration can grant a visa of any type to a person who –

  1. Is unlawfully in New Zealand;
  2. Does not have a deportation order against them; and
  3. Does not have a removal order against them.

The decision to grant a visa is discretionary. This means that the immigration officer handling the request has no obligation to even consider it, does not have to disclose their reasons if they refuse the request, and is not bound to grant the specific type of visa or length requested (i.e. they can grant a different type of visa than the one asked for).

Information considered in assessing a section 61 request

It is crucial that a person making a request does so as clearly and comprehensively as possible.  Although there are no requirements as to the documents which need to be produced with a request, it is generally recommended that a person provide Immigration New Zealand with as much supporting evidence as possible.

This supporting evidence can include:

  1. An explanation of why they remained in the country after their visa expired, including any potential mitigating circumstances (e.g. they might have suffered an accident which contributed to the breach);
  2. Information about their employment in New Zealand and why it would beneficial for them to remain here (e.g. if they are employed in an occupation considered to have a skill shortage in New Zealand, it could be beneficial to retain their skill and expertise)
  3. An explanation of any family ties in New Zealand and how leaving the country (even temporarily to apply for another visa) would affect them;
  4. Information about how they have contributed to or benefitted New Zealand;
  5. Whether they intend to obtain residence or citizenship here.

What happens if a request is denied

If a request is denied, then the person will be required to voluntarily leave the country.  Once out of the country, a visa application may be submitted.

How we can help

Because Immigration New Zealand’s power to grant (or even consider) a request is discretionary, it is important that you put forward the strongest possible case.  We can advise you on how to best approach this based on your personal circumstances, and help to explain to Immigration New Zealand why yours is a “special case”.

If you have found yourself in this difficult situation, it is best to act quickly and seek advice as soon as possible. 

More information:

If you would like further information or advice on these matters, feel free to contact our Wellington based immigration lawyers, Jamie Nunns, email jamie.nunns@morrisonkent.com, phone (04) 495 8912.