2013-Jun 21: Situation of residence applicants who become unlawful

Visa Pak 117 - Information to staff about how to progress with residence application where applicant has become unlawful

Visa Paks

21 June 2013

Situation of residence applicants who become unlawful

We have received recent enquiries from branches on clarification on how best to progress residence applications where the applicant has become unlawful.

A. Granting Temporary Visas while a Residence application is being processed.

This refers to lawfully made applications for temporary visas (i.e. the application was made whilst the applicant held a temporary visa) where the applicant or their agent has requested the grant of a further temporary visa whilst a residence application is being processed. As the application was lawfully made, normal immigration instructions apply to the application. However, immigration officers retain, in accordance with section 76(1) of the Act, the discretion to grant a temporary visa as an exception to instructions in any particular case.

It is important to ensure that any client, who wishes to stay in NZ while their residence application is being processed, is encouraged to make further visa applications before the expiry of their temporary visa. The consequence of their temporary visa expiring is that their immigration status becomes unlawful and according to 169(3) of the Immigration Act 2009, processing of their residence application must be suspended.

If a client with a residence application in progress becomes unlawful - they become liable for deportation and are not permitted to apply for a further temporary visa. So a client, who chooses to remain in New Zealand, should be advised to promptly request a visa under section 61. Immigration Officers may on a strictly case by case basis in their absolute discretion consider granting clients an appropriate temporary visa to enable the client to remain lawfully 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.

B. Section 169 (3)

There has been some discussion in regard to the purpose of section 169(3) as it can result in number of undecided applications sitting open in the system, which is of little benefit to Immigration NZ in managing its applications and business processes. The purpose of section 169(3) is to essentially encourage compliance with the Act. If a person becomes unlawful, and therefore liable for deportation, they lose their right to gain any benefits from the immigration system (including the right to have a lawfully made application processed or to make a further lawful application). They are in effect disenfranchised from the immigration system.

Section 169(3) also encourages such clients, if they want to have a decision made on their residence application, to either attempt to regularise their status in New Zealand under section 61 of the Act, or to depart New Zealand before compliance action is taken against them.

C. The unilateral grant of a Section 61 visa in order to decide a residence application.

There has been some discussion about whether or not section 61 visas can be unilaterally granted so that a residence application can be finalised (whether that is an approval or decline decision). In short, the Act does not require a request for a visa to be made for a visa to be granted under section 61. After all, section 61(1) states: “The Minister may at any time, of the Minister’s own volition, grant a visa of any type to a person who … is unlawfully in New Zealand”. In general, most cases where a visa is granted under section 61 are done so following a request for a visa.

A visa granted under section 61 has the effect of re-enfranchising the person within the immigration system. That is, provided that the visa is a temporary entry class visa of sufficient length (and not, for example, a limited visa), the person will gain the ability whilst the visa is current to make further applications for a temporary or residence class visa and will, if the visa expires, have the right to appeal against deportation liability to the Immigration and Protection Tribunal (IPT). Also, when a residence application is declined, the unsuccessful applicant has the right of appeal to the IPT which may, when an INZ decision was correct in terms of the Residence Instructions, recommend that the Minister grant residence as an exception to instructions.

Action:

To avoid clients in these situations from becoming unlawful “preventative measures” are often better prescribed than the efforts required to administering a “final cure”.

It is imperative that clients who have residence applications in progress be encouraged to apply for further temporary visas to prevent them from becoming unlawful by using the Template letters in the Staff Tool Kit saved under V395:

  1. to 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
  2. for branches to send to existing applicants who have become unlawful e.g. applicants in a managed queue