2012-Oct 05: Suspending the processing of a residence visa application under S169

Visa Pak 85 - The Immigration Act 2009 contains a provision at section 169 (3) which requires Immigration Officers to suspend the processing of a residence visa application while a client is liable for deportation. There was no equivalent provision in the 1987 Act.

Visa Paks

5 October 2012

The Issue

The Immigration Act 2009 contains a provision at section 169 (3) (see below) which requires Immigration Officers to suspend the processing of a residence visa application while a client is liable for deportation. There was no equivalent provision in the 1987 Act.

169 Effect of being liable for deportation

  1.  A person liable for deportation may not—
    a. apply for a visa, if he or she is unlawfully in New Zealand; or
    b. apply for a further visa of a different class or type, if he or
    she currently holds a visa.
  2. However, the Minister or an immigration officer may, in his or her absolute discretion, grant a visa of a different class or type to a person to whom subsection (1)(b) applies.
  3. While a person is liable for deportation, the processing of any application by the person for a visa of a different class or type must be suspended.
  4. While a person is liable for deportation, the processing of any application by the person for the grant of New Zealand citizenship under section 8 of the Citizenship Act 1977 or section 7(1)(b)(ii) of the Citizenship (Western Samoa) Act 1982 must be suspended.

A residence applicant is most likely to become liable for deportation by becoming unlawful (see D2.10), or for cause e.g. breaching the conditions of their temporary visa, criminal offending etc – (see D2.15.15). Please also refer to RA5.1 and Compliance Instructions at D2.30.5.

This has led to a significant number of residence cases (approx 400) where immigration officers must suspend processing.

Action

Operations Support and Service Support

The acknowledgement letters sent to all applicants applying for residence onshore have been amended. The amended letters inform applicants that not only must they stay lawful in New Zealand but that if they fail to do so, INZ is unable to continue processing their residence application.

Branches

Branches will get requests for the grant of a visa under s61. Immigration Officers may on a strictly case by case basis consider granting clients an appropriate temporary visa under s61 to enable them to remain in New Zealand pending a final decision on their residence application. The grant of such a visa is conditional on payment of the s61 temporary entry class visa fee.

When considering granting a temporary visa under s61 Immigration Officers should take into consideration such things as the applicant’s circumstances and the residence category they are applying under e.g. Skilled Migrant Category or capped Family Category.