Often, when people are charged with an offence, they will seek advice from a criminal lawyer, but not from an immigration lawyer. Below, is an overview of how a criminal conviction can affect a visa and what to do next.
When is a temporary visa holder potentially liable for deportation?
A temporary visa holder may be liable for deportation when INZ decides is “sufficient reason” to do so. Sufficient reason includes:
- A breach of visa conditions
- criminal offending, or
- other matters relating to character.
Therefore, when INZ learns that a temporary holder has received a conviction, INZ can then issue a Deportation Liability Notice (DLN).
However, INZ can also decide to issue a DLN when the Court grants a discharge without conviction. This is because the criminal offending has occurred, and the migrant will plead guilty to obtain the discharge without conviction.
What are the options when a temporary visa holder is served with a DLN?
A temporary visa holder has two options:
- The first is they can provide submissions to INZ showing good reasons why the DLN should be cancelled.
- The second option is to submit a humanitarian appeal to the Immigration and Protection Tribunal (Tribunal). For the appeal to be successful, the migrant must show that they have:
- exceptional humanitarian circumstances that would make it unjust or unduly harsh for them to be deported from New Zealand; and
- it would not in all the circumstances be contrary to the public interest them to remain in New Zealand.
The threshold of “exceptional circumstances” is high. The circumstances must “be well outside the normal run of circumstances” and “truly an exception rather than the rule”. Due to this, an appeal must include full submissions, supported by objective documents. If the Tribunal decides that there are no exceptional circumstances the appeal will be declined.
When is a resident visa holder liable for deportation?
A resident visa holder is liable for deportation when convicted of an offence which occurred:
- not later than 2 years after they first held a residence class visa, and the court could have imposed imprisonment for a term of three months or more;
- not later than five years after the person first held a residence class visa where the court sentenced them to a term of imprisonment of 12 months or more; or
- not later than 10 years after the person first held a residence class visa where the court sentenced them to a term of 5 years or more.
Where INZ learns that a resident visa holder has been convicted of an offence and is technically liable for deportation, the case is forwarded to its Resolution Branch. At this stage, the resident visa holder can demonstrate why they should not be issued a DLN.
After considering the response, INZ can:
- issue a DLN but cancel it;
- issue a DLN but suspend it for a specific time period (number of years); or
- serve a DLN.
Again, it is vital that the strongest case possible is prepared to support the DLN being cancelled or suspended.
What are the options when a New Zealand resident is served with a DLN?
A resident visa holder can appeal to the Tribunal.
Depending on the grounds upon which the DLN was served, the migrant can appeal on the facts and/or that they have exceptional circumstances of a humanitarian nature which means it would be unjust or unduly harsh if they had to depart New Zealand, and there is nothing against the public interest to allow them to remain in New Zealand.
What is the appeal time frame?
This depends on why the DLN was served. However, most appeals must be lodged within 28 days. It is important that anyone served a DLN is aware of the specified timeframe for lodging an appeal. If a visa holder does not appeal within the required timeframe, the appeal right is lost.
Seek immigration and criminal law advice
If charged with an offence or liability for deportation may otherwise be an issue, it is important that professional immigration advice is obtained, in addition to any criminal law advice, as soon as possible. This enables early identification of options and, if relevant, the submission of an appeal to the Tribunal within the necessary time frame.
Special thanks to Special Counsel Nicky Robertson for preparing this article. For more information, please contact a member of our Immigration Law team.
Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.
