Who is this for?

Visa holders, or people unlawfully in New Zealand, who are liable for deportation; and their solicitors and advisers.

What is changing?

The deportation process has been simplified to better balance efficiency with fairness. The terms ‘removal’ and ‘revocation’ are no longer used. Instead, the single term ‘deportation’ is used. People who are deported, and aged 18 or over, may be prohibited from re-entering New Zealand for two years, five years or permanently, depending on the reason for deportation.

What is deportation?

The term ‘deportation’ in the Immigration Act 2009 (new Act) describes all processes for requiring a foreign national who has no right to remain in New Zealand to leave. New Zealand citizens cannot be deported from New Zealand.

Who is liable for deportation?

In summary, deportation liability is triggered by:

• Staying in New Zealand unlawfully (i.e. beyond a visa expiry date)
• Staying in New Zealand on a visa granted in error 
• Staying in New Zealand on a visa obtained under a false identity 
• The Minister of Immigration determining there is sufficient reason to make a temporary entrant liable for deportation, including: 
  • Breach of visa conditions 
  • Criminal offending 
  • Matters relating to character 
  • Concealment of relevant information in relation to the person’s visa application 
  • Where the person’s circumstances no longer meet the rules or criteria under which the visa was granted. 
• Obtaining a residence class visa through fraud, forgery etc 
• Breaching conditions of a resident visa 
• New information prejudicial to character becoming available that, if known at the time a residence class visa was granted, would have meant the visa would have been refused 
• A residence class visa holder being convicted of certain criminal offences 
• Cancellation of refugee and/or protection status where the person is not a New Zealand citizen 
• Being a risk or threat to security.

Residence class visa holders remain liable for deportation for 10 years following liability for deportation arising.

A foreign national who holds a visa may become liable for deportation while not in New Zealand under any of the circumstances giving rise to deportation liability. Such a person is considered to be ‘deported’ when a deportation order is served when they are outside New Zealand.

The deportation process

The deportation process is initiated differently under the new Act, depending on whether a person holds a visa, is in New Zealand unlawfully, or is suspected to be a risk or threat to security. 

1. For a person who holds a visa to be in or travel to New Zealand, the deportation process begins with service of a ‘deportation liability notice’. This notice sets out the reasons a person is being made liable for deportation, what appeal rights apply (if any), and the consequences of deportation. The period for making any appeal is triggered by service of this notice. In some cases, a person is also given a limited period to give good reasons to the Department of Labour as to why deportation should not proceed.
   
   The appeal rights, and length of time a person has to appeal against deportation liability, depend on the type of visa the person holds, and the grounds for their liability for deportation. For example, a resident who is liable for deportation on the basis of being convicted of a criminal offence does not have a right of appeal on the facts, as they have had an opportunity to challenge those facts through the Court. However, they may still appeal against their liability for deportation on humanitarian grounds.
   
   The Act allows foreign nationals who are lawfully in New Zealand to remain lawfully in New Zealand while they appeal against their deportation liability.
   Following the exhaustion of any applicable appeal rights, a ‘deportation order’ may be served and executed.  
   
2. People who are liable for deportation because they are unlawfully in New Zealand following the expiry of a visa are not served with a deportation liability notice. Following the exhaustion of any applicable appeal rights, they may be served with a deportation order. 
   
3. If a person is certified by the Minister of Immigration as being a threat or risk to security, they may be subject to a deportation order made by the Governor-General by Order in Council.

Executing a deportation order

A deportation order may be executed once it has been served by taking the person into custody, escorting or arranging for the person to be escorted to an airport, and ensuring the person is placed on board a craft and detained there until the person leaves New Zealand.

When a person is liable for deportation, police may also photograph and take the person’s fingerprints, and require the surrender of identity and immigration documents as is necessary to meet the entry or transit requirements of any country that the person has to travel to or through.

Any visa the person holds is cancelled on deportation.

Consequences of deportation

The Immigration Act 2009 contains a new system of graduated bans preventing deportees from returning to New Zealand.

Persons under the age of 18 and overstayers who leave New Zealand voluntarily before being served with a deportation order are not subject to any ban. Otherwise, a person may be prohibited from entering New Zealand for two years, five years or permanently, depending on the reason the person was deported. In addition, a deportee cannot return to New Zealand at any time until he or she has repaid the costs of their deportation. The Minister of Immigration has the discretionary power to reduce or remove bans on returning to New Zealand, or reduce or waive any costs of the person’s deportation that are owed.

The new Act also gives the Minister of Immigration the power to cancel a person’s liability for deportation. In addition the Minister, or the Immigration and Protection Tribunal, may suspend a residence class visa holder’s liability for deportation for up to five years. Where the Minister or Tribunal decides to suspend a residence class visa holder’s liability for deportation, the Minister or the Tribunal (as the case may be) may impose conditions, which will be stated in a written notice.

Transitional provisions

The provisions of the 1987 Act generally continue to apply after 29 November 2010 to people who have been served a ‘revocation notice’, or are subject to a ‘removal order’ or ‘deportation order’ before commencement of the 2009 Act on 29 November 2010. This includes the completion of any appeals that may have been outstanding on the date of commencement. However, the actual removal or deportation is completed as if it were a deportation being executed under the 2009 Act.

Monitoring and detention

A person who is liable for deportation is liable for monitoring and detention. Initially they may be arrested and detained by police for a period of up to 96 hours. If the person cannot be deported within this time, an immigration officer may apply to a District Court Judge for a warrant of commitment for up to 28 days, to detain the person further, in a penal institution. As an alternative to secure detention, an immigration officer may agree that the person can remain in the community subject to residence and reporting requirements, or the Court can order the person be released subject to residence and reporting conditions.

Further information on making an appeal

Further information about appeals can be found in the Immigration and Protection Tribunal factsheet and in the Appeals factsheet.

Disclaimer: Every care has been taken to ensure the information in this factsheet is accurate. While the use of the information in this factsheet may assist you in your application, applications will be assessed by Immigration New Zealand according to the requirements of the Immigration Act 2009.