D2.50 Transitional instructions

D2.50.1 Revocation of temporary permit on grounds of administrative error if granted prior to commencement of the Immigration Act 2009

See also Immigration Act 2009 s 433

1. This section applies to a temporary permit that was granted under the Immigration Act 1987 as a result of an administrative error.
2. An administrative error in granting a temporary permit occurs if:
   1. it was granted to a New Zealand citizen or a person who was exempt under the Immigration Act 1987 from the requirement to hold a permit; or
   2. it was granted to a person to whom section 7 of the Immigration Act 1987 applied; or
   3. the person granting it intended to grant a temporary permit of some type rather than the one that was actually granted; or
   4. it was granted in contravention of any special direction, or any instruction of a kind referred to in section 130(5) of the Immigration Act 1987; or
   5. it was granted contrary to Government policy applying at the time; or
   6. it was granted for a period longer than that prescribed for permits of that type by regulations made under the 1987 Act; or
   7. it was granted on the basis of an administrative error in determining an earlier application for a visa or permit.
3. If an immigration officer determines, whether before or after the Immigration Act 1987 is repealed that the permit was granted as a result of an administrative error and the permit was not revoked in the issuing office of the Department or in the arrival hall at the Customs place or immigration control area, the immigration officer may, in their absolute discretion, instead of determining that the person is liable for deportation under section 155 of the Immigration Act 2009.
   1. offer the person a visa of an appropriate class and type, and subject to the appropriate conditions; and
   2. if the person agrees, grant the visa.
4. If the person is still in the issuing office or arrival hall at the Customs place or immigration control area an immigration officer may cancel the permit (being the equivalent visa deemed held under section 415 of the Immigration Act 2009) under section 67 of the Immigration Act 2009 as if it were granted under the Immigration Act 2009, and the Immigration Act 2009 will apply accordingly with any necessary modifications.

D2.50.5 Revocation of permits, removal orders, and deportation orders

See also Immigration Act 2009 s 432

1. The Immigration Act 1987 continues to apply after the repeal of the Immigration Act 1987 in relation to a person:
   1. whose visa or permit had been revoked by the Minister of Immigration or an immigration officer under the Immigration Act 1987, whether or not notice of the revocation had been served on the person; or
   2. who is subject to a removal order under the Immigration Act 1987; or
   3. who is subject to a deportation order under the Immigration Act 1987.
2. If the person had lodged an appeal to an appeals body other than the (Refugee Status Appeals Authority (RSAA) under the Immigration Act 1987 but the appeal had not been determined then the appeal will be completed in accordance with provisions of section 446 of the Immigration Act 2009.
3. If the person was eligible to appeal to an appeals body other than the RSAA under the Immigration Act 1987 but had not done so then the provisions of section 447 of the Immigration Act 2009 apply.
4. If a person to whom (a)(ii) or (iii) above applies does not lodge an appeal or is unsuccessful on appeal, they may be removed or deported and
   1. the removal or deportation must be effected as if it were a deportation being executed under the immigration Act 2009, and that Act applies accordingly with any necessary modifications; and
   2. the person is liable for arrest and detention under Part 9 of the Immigration Act 2009 pending his or her deportation being executed.

D2.50.15 Removal action - transitional provisions

See also Immigration Act 2009 ss 407, 432

1. A person who is subject to a removal order under the Immigration Act 1987 remains subject to that removal order after the repeal of the Immigration Act 1987. The provisions of the Immigration Act 1987 continue to apply in respect of that person.
2. A person who is subject to a removal order may be removed from New Zealand, and continues to be able to be removed in accordance with the relevant provisions of the Immigration Act 1987 regarding removal after the repeal of the Immigration Act 1987.
3. Immigration officers have the discretion to effect removal by having a person liable for removal:
   1. taken into custody by a constable; or
   2. monitoring the person's departure without having them taken into custody.
4. Officers need to assess the most appropriate means of removal after having taken into account all the circumstances of the case.

D2.50.20 Who remains liable for removal from New Zealand after the repeal of the Immigration Act 1987?

See also Immigration Act 1987 ss 4A, 27A(2), 47, 53, 63, 114K(4)(b), 115A, 116 and Immigration Act 2009 s 154

A person who is in New Zealand unlawfully and is the subject of a removal order is liable to be removed from New Zealand.

D2.50.25 Liability for deportation in respect of visa deemed to be held under section 415 or 417 of the Immigration Act 2009

See also Immigration Act 2009 s 434

1. A person may become liable for deportation under Part 6 of the Immigration Act 2009 in respect of a visa deemed to be held by the person under section 415 or 417 of the Immigration Act 2009 whether the reason for the liability arose before or after the person was deemed to hold the visa.
2. For the purposes of (a) above any time periods specified in the Immigration Act 2009 that relate to liability for deportation must be calculated including any time that has elapsed before the repeal of the Immigration Act 1987 during which the person held the permit or visa, or was subject to the exemption, that corresponds with the visa deemed to be held under the Immigration Act 2009.

D2.50.30 Currency of removal orders issued under the Immigration Act 1987

See also Immigration Act 1987 s 57

1. A removal order remains in force from the time at which it is served until 5 years have expired after the date the subject of the order is removed from New Zealand, unless it is cancelled before then (see D2.50.35) or (b) below applies.
2. If the subject of a removal order is under 17 years of age on the date that the order is made, the order only remains in force until they are removed from New Zealand.
3. A removal order remains in force despite the repeal of the Immigration Act 1987.

D2.50.35 Cancellation of a removal order issued under the Immigration Act 1987

See also Immigration Act 1987 ss 35A, 58

See also Immigration Act 2009 s 61

1. A removal order may be cancelled if:
   1. it was issued in error; or
   2. an immigration officer considers that, in all the circumstances, it is appropriate to grant a visa under section 61 of the Immigration Act 2009.
2. Immigration officers who were designated to make removal orders under the Immigration Act 1987 immediately before the repeal of the Immigration Act 1987 may, while the subject of a removal order is still in New Zealand, cancel the removal order by endorsing a copy of the removal order accordingly and personally serving that copy of the order on the person named in it.
3. The cancellation endorsement has the effect of directing anyone who is detaining the person named in the order as a result of the removal order, to immediately release the person from custody. The immigration officer who cancels the order must ensure that the person is released immediately.
4. If a person has already left New Zealand or been removed from New Zealand an immigration officer who is designated to make removal orders as detailed in (b) above may cancel the removal order by advising (on Form 6 of the Schedule, Immigration (Certificate, Warrant, and Other Forms) Regulations 2010) the person named in a removal order, that the order is cancelled.

D2.50.40 Cancellation of removal order issued under the Immigration Act 1987 and the consideration of a person’s rights

See also Immigration Act 2009 s 476

1. No person has the right to apply to an immigration officer for the cancellation of a removal order issued under the Immigration Act 1987. However, an immigration officer must consider cancelling the removal order of a person who is in New Zealand if the person provides information to the immigration officer concerning his or her personal circumstances, and the information is relevant to New Zealand's international obligations.
2. If an immigration officer does consider cancelling a removal order, the officer must have regard to any relevant international obligations, but otherwise:
   1. may make a decision as he or she thinks fit; and
   2. in doing so, is not under any obligation, whether by implication or otherwise:
      • to apply any test or any particular test and, in particular, the officer is not obliged to apply the test set out in section 47(3) of the Immigration Act 1987; or
      • to inquire into the circumstances of, or to make any further inquiries in respect of the information provided by or in respect of, the person who is the subject of the removal order or any other person.
3. Whether or not an immigration officer considers cancelling a removal order:
   1. he or she is not obliged to give reasons for any decision, other than the reason that this subsection applies; and
   2. section 23 of the Official Information Act 1982 does not apply in respect of the decision.
4. However, to the extent that an immigration officer does have regard to any international obligations, the officer is obliged to record:
   1. a description of the international obligations; and
   2. the facts about the person's personal circumstances.

D2.50.45 Executing a removal order under the Immigration Act 1987

See also Immigration Act 1987 s 59

See also Immigration Act 2009 ss 439, 313,

1. A person subject to a removal order is liable for arrest and detention under Part 9 of the Immigration Act 2009.
2. A removal order is executed by placing a person named in the order on a craft leaving New Zealand.
3. For the purpose of executing the order, any member of the New Zealand Police (Police) may arrest (without warrant) and detain, a person on whom a removal order has been served under section 313 of the Immigration Act 2009.
4. The person may be detained for up to 96 hours to await being placed on the craft.
5. Once the person has been placed on the craft, the Police may continue to detain them there to ensure that they do not leave the craft before its departure.

D2.50.50 Executing a removal order on an unmarried person under the age of 18

See also Immigration Act 1987 ss 59, 141B, 141D

See also Immigration Act 2009 s 375

1. If an unmarried person under the age of 18 is to be deported from New Zealand and a parent or guardian is not accompanying them, immigration officers must:
   1. make all reasonable efforts to contact their parent or guardian to agree on suitable travelling arrangements for them; and
   2. have nominated a responsible adult; and
   3. give the minor opportunity to express their views (whether personally, or through a responsible adult) and give due weight to those views.
2. Immigration officers must make travel arrangements for the person in consultation with:
   1. the nominated responsible adult for the person (see D5.1); or
   2. if consultation with the nominated responsible adult is not possible or practicable, with the Director-General of Social Welfare.

Effective 18/04/2014