Monday brings a very particular kind of phone call. The other person’s visa ended the Friday before. They have been in the office all weekend as the people’s rota has already been done.

They want to know if they can “just put another application through online” — they can’t.

As soon as your New Zealand work visa ends and another hasn’t been granted you are illegal in New Zealand. The normal online form for a temporary visa is not open to you.

This is the provision that people are probably referring to at this point – Section 61 of the Immigration Act 2009. It is not a visa category, but an exercise of discretion. This is the main thrust of the advice.

Legal Implications Post Visa Expiration

A person must have a current visa to live in New Zealand lawfully. If the visa has expired, the legal position is that the person should leave immediately. If the person does not leave, they will be in the country without legal status, and they can be removed.

They will not be able to work, and their employer cannot employ them.

The person or anyone knowingly helping them to stay may be committing an offense and, in some cases, risking their own visa.

This is the situation in law, which highlights the reason why the approach of “resting and waiting to see whether they will contact me” is not a wise decision. The longer the illegal residing time is, the more difficult the problems become: they have no legal work, no opportunity to file a normal application and they will have a history if they will be deported.

According to Immigration New Zealand, if the person left New Zealand voluntarily before the notification of deportation was served, they can still apply for a visa to enter the country later. If the person is deported, a later application might be adversely affected. Leaving voluntarily is not a failure – for some people it’s a simple way of protecting the option of returning later.

Understanding Section 61 Requests

Section 61 – Possibility to grant a visa to unlawful persons

Section 61 authorises, in very special cases, the grant of a visa to an alien already unlawfully present in New Zealand. A more senior officer will make the decision. A number of restrictions are often missed, many of which have been lifted from the statement by Immigration New Zealand on this process.

You are not obliged to take any action. The officer does not have to undertake any further investigation of the information you have provided. The visa is not necessarily guaranteed, even if the applicant appears to fit within the criteria of a standard category. The officer may give a different type of visa than that applied for; for instance, a short-term visitor visa instead of a work visa, or nothing.

Decisions are not provided within a specified timeframe. Some requests are dealt with in two weeks, others in due course. There is no appeal process to the Minister if a request is declined. A request does not preclude the deportation process; the Department can still issue a deportation order and remove while a request is being considered. A Section 61 request is not a right to stay.

In the usual case, it is not possible to make the request if you have already been served with an order. An agent of the Secretary can make you liable to deportation, which happens when a visa runs out, but this is different than the order being served. That is an example of how wait can be expensive.

People need to be in New Zealand to apply for it. It cannot be done by a family member on their behalf once the person has left New Zealand.

Practical Examples of “Compelling Circumstances”

However, given the power is discretionary and there is no list of criteria that would ensure a case was approved, officers look at the totality of the circumstances. In approved cases, the following appear to be present and are recorded rather than merely alleged:

• A very short period of unlawful status due to a payment that did not go through, a lodgment that was not made by a representative or a communication of a medical hold to the client. Longer periods of unlawful status may be justified but the reason must be specific.
• Family in NZ who are citizens or residents, as long as the child would suffer if the child left immediately. Family relationships are not a visa however they do give context.
• A bona fide barrier to having to leave straight away: a prescribed course of medical treatment which cannot be halted, or a court hearing which must be attended. If you are at a job you wish to keep, that would not, of itself, be such a barrier.
• A reasonable solution for a way to get a legitimate visa. If a short-term grant is given: The officers are going to be a lot more willing to give a short-term fix, say a short-term tourist visa or short-term work visa, if there is a genuine subsequent application rather than an infinite request for extension of stay.
• The file lists character issues. An unreported conviction, lie on expired application, working after the visa expires. Concealing facts which are relevant to character can also give rise to character concerns.

Initial Actions in the First Week

• Discontinue employment if this is not allowed by the visa on which the employment is based. Working without the visa will be an offence and would be relevant to any future application.
• Gather documentation, such as expiry date, last visa label or eVisa letter, and proof of attempt at lodgment. If registered adviser held and unsuccessful lodgment, acquire written confirmation.
• Do not ask a “friendly” stranger to prepare a Section 61 letter: the tone is all important. Letters in demanding emotional language but with no fact are unpersuasive and ignored. A clear chronology, of fact supported by evidence, is all that attracts attention.
• Should one decide to leave, leave in an orderly fashion and keep proof of a voluntary departure. If choosing to apply for a visa, ask for advice before submitting your request. One must choose to be discretionary one time and there is no avenue of appeal should the application be refused.

Grant although people who have had unlawful status for a lengthy period are occasionally granted it, this is not the norm and hinges on personal and supported facts. No promise of Section 61 approval does not correctly reflect the law.

Privacy Confidential Review Prior to Sending to Immigration New Zealand

Immigration Matters assists clients with Section 61 matters using the utmost discretion.

137 Kolmar Road, Papatoetoe

Immigration Matters is run by Jagjeet Singh Sidhu (IAA licence 201400260), who has been dealing with unlawful status issues since the practice was established in 2014.

If your visa has expired, please contact us before you make a request or if you are booking a non-refundable airline ticket. If the issue is a work or residence pathway that couldn’t be lodged in time, details on what short grant options would need to meet in relation to those work visa or resident visa types are on the pages. None of those can be lodged in the usual way when a person is unlawful.

Frequently Asked Questions

Can we still apply online for a partnership/work visa after the visa has expired?

No. Under unlawful status, one cannot apply for a conventional temporary visa from inside New Zealand. S 61 is an expression of interest, not an application.