A5.35 Application usually deferred (13/05/2019)

Applications for a residence class visa will usually be deferred for up to six months if, at the time the application is assessed:

1. the applicant (see R2.1.5) has an arrest warrant (or the equivalent) outstanding in any country; or
2. the applicant:
   1. has been charged with any offence which, on conviction, would make either A5.20 or A5.25(a) to (f) apply to that applicant; or
   2. is under investigation for such an offence; or
   3. is wanted for questioning about such an offence; or
3. the applicant is applying for residence under the Family or Special Categories on the basis of their relationship to a person whose residence status is under investigation at the time of assessment of the Family or Special Category application. In such cases, if the investigation cannot be finalised within the initial six month deferral period the application may continue to be deferred until it is.

   Note: if a resident visa holder is applying for a permanent resident visa, and the travel conditions on the resident visa are about to expire, further travel conditions can be granted for the same duration as the deferral period.

A5.35.1 Action

The immigration officer must:

1. defer the decision on the application for up to six months; and
2. inform the applicant of the decision to grant a deferral and the period of the deferral, in writing; and
3. await the outcome of the charge, investigation or questioning, or await cancellation or execution of the arrest warrant; and
4. if removal of the character impediment is confirmed, continue processing the application normally; and
5. if the character impediment is not removed, refer to the Head of Operations or Visa Operations Manager for their decision on whether to grant a second or subsequent deferral under the provisions at A5.35.5.

A5.35.5 Second and subsequent deferral periods

1. In cases where the deferral period is coming to an end and the applicant is still awaiting the outcome of the charge, investigation or questioning, or awaiting cancellation or execution of the arrest warrant, a second or subsequent deferral period may be imposed.
2. A decision on a second or subsequent deferral will only be made after appropriate consultation with National Office and the Legal Services of the Ministry of Business, Innovation and Employment about:
   1. whether a second or subsequent deferral is justified in the circumstances; and
   2. whether the deferral period is reasonable, given the likely timeframe of any outcome being reached and the efforts the applicant is making to reach an outcome.
3. A decision to grant a second deferral must be made by an Head of Operations or Visa Operations Manager or above.
4. If the character impediment is not removed by the end of the second deferral period, the Head of Operations or Visa Operations Manager may impose a subsequent deferral under the provisions at A5.35.5.
5. The length of the subsequent deferral period will be decided according to the length of time it is expected for a decision on the charge, investigation or questioning, cancellation or execution of the arrest warrant to be made.
6. The applicant must be informed of any decision to impose a second or subsequent deferral and the period of the deferral, in writing.
7. If the subsequent deferral period comes to an end without the character impediment being removed or an outcome to the case, officers must assess the application as in A5.25.1.

Note: A deferral does not require granting the applicant a temporary entry class visa.

Effective 13/05/2019