D2.10 The requirement to be lawfully in New Zealand

D2.10.5 Requirement to hold visa to be in New Zealand

1. No one other than a New Zealand citizen may be in New Zealand unless that person holds (or is deemed to hold) a current visa granted or deemed to have been granted under the Immigration Act 2009.
2. Any person who is in New Zealand contrary to (a) above is considered to be in New Zealand unlawfully.

D2.10.10 Status of people lodging an application for a visa

See also Immigration Act 2009 s 14(2)

1. Lodging an application for a visa does not:
   1. make the person's presence in New Zealand lawful; or
   2. give the person the right to remain in New Zealand while the application is being considered; or
   3. give the person the right to apply for or be granted any other visa while the application is considered; or
   4. inhibit any deportation procedures under the Immigration Act 2009 that may apply to the person.
2. Despite (a) above, an interim visa may be granted to maintain the lawful status of a visa holder who has applied for a further visa.

D2.10.15 Deportation liability if person unlawfully in New Zealand

See also Immigration Act 2009 s 154

A person unlawfully in New Zealand is liable for deportation.

D2.10.20 Categories of people who may be in New Zealand unlawfully

Persons who may be in New Zealand unlawfully include any of the following:

1. the former holder of a temporary visa (whether granted or deemed to have been granted) who remains in New Zealand after that temporary visa expires;
2. the former holder of a limited visa who remains in New Zealand after the expiry of that visa;
3. the former holder of a limited visa which is given a shortened duration who remains in New Zealand after the expiry of that visa;
4. a person whose residence permit was revoked under the Immigration Act 1987 before commencement of Part 12 of the Immigration Act 2009 and who did not:
   1. appeal against the revocation; or
   2. apply for and be granted a temporary permit under section 25(1)(d) of the Immigration Act 1987 before the revocation of the residence permit became effective.
5. a child born in New Zealand on or after 1 January 2006 and deemed to be unlawfully in New Zealand under sections 373 and 374 of the Immigration Act 2009 (see A17.5).
6. any of the following people who are liable for turnaround to whom section 115 of the Immigration Act 2009 applies:
   1. a person to whom a visa waiver applies and who fails to apply for a visa and entry permission or is refused a visa; or
   2. a person to whom a visa waiver does not apply and who is not the holder of a visa granted under the Immigration Act 2009; or
   3. a person who holds a visa but:
      • the visa is subsequently cancelled under section 64(1)(ab),(b), (c), (d), or (e) of the Immigration Act 2009; or
      • the visa is cancelled under section 67 of the Immigration Act 2009 while the person is in an immigration control area (unless some other visa is granted to the person or the person is a New Zealand citizen); or
   4. a person who is a stowaway; or
   5. a person who after arriving in New Zealand, has their transit visa cancelled by an immigration officer under section 90 of the Immigration Act 2009; or
   6. a person who is the holder of a transit visa and the transit period concerned has expired.

D2.10.25 People unlawfully in New Zealand must leave

See also Immigration Act 2009 ss 18, 19

1. From the moment a person is in New Zealand unlawfully, they are obligated to leave New Zealand unless they are subsequently granted a visa.
2. The obligation to leave arises if the person is unlawfully in New Zealand because:
   1. their visa has expired; or
   2. they entered New Zealand without a visa; or
   3. they entered New Zealand without entry permission; or
   4. they are unlawfully in New Zealand for any other reason.
3. All people seeking visas to enter New Zealand will be advised of their obligation to leave New Zealand if they are in New Zealand unlawfully.
4. The obligation for a person unlawfully in New Zealand to leave New Zealand arises whether or not they are aware of their obligation to leave or of their liability to be deported from New Zealand.

D2.10.30 People unlawfully in New Zealand arrested for other offences

Sometimes, people unlawfully in New Zealand are arrested by the New Zealand Police (Police) and placed in custody because they have committed other offences. Because action in relation to other offences takes precedence over deportation, it may not be possible to proceed with deportation immediately. If it is still appropriate to deport them, then a deportation order should be served and the officer should liaise with the Police to determine how the deportation can best be effected.

 Effective 28/08/2017