Consequences of offending for visitors to New Zealand and residence visa holders
Many international visitors, including some who have residence in New Zealand, may not be aware of the consequences of getting charged with a crime in New Zealand, often until it is too late. Most visa applicants know they must pass character or law enforcement vetting checks before coming to New Zealand, but it’s also important to think about how New Zealand criminal law might impact a visa-holder after arrival.
For temporary entry class visa-holders – such as visitor, work, or student visa-holders – the risks are significant. Deportation liability can arise if Immigration New Zealand (“INZ”) determines there is “sufficient reason” to deport the temporary visa-holder: section 157, Immigration Act 2009.
What might be “sufficient reason” really depends on INZ’s judgment: the law says it can include “criminal offending” and “other matters relating to character.” These factors give INZ huge decision-making power. INZ can make its determination even if there is not a “conviction,” which is what generally happens when you plead guilty or are found guilty of a crime by a court. In other words, temporary visa-holders may be liable to deportation even if they just get into trouble with the Police.
If a conviction is entered by a court against a temporary visa-holder, it can make getting residence more difficult, as most types of conviction mean he or she needs a character waiver in the visa application process. A character waiver means an immigration officer will look at the applicant and the applicant’s conviction history more closely to see if he or she is of “good character.”
Even residence class visa-holders need to be mindful of character issues, especially if they are charged with offending within two years of first receiving their residence class visa: section 161, Immigration Act 2009. Most types of conviction, including, for example, driving with excess breath alcohol, will mean the visa-holder is liable to deportation if the offending occurs within those first two years (or if the offending occurred at a time when he or she was in New Zealand either unlawfully, or as a temporary entry class visa-holder).
The seriousness of conviction needed to attract deportation liability tends to increase after the visa-holder has had his or her residence visa for between two years and five years, and again between five years and 10 years.
If a defendant is charged by Police (or another agency) and summonsed to court, there is the opportunity to ask the court to discharge without conviction, on grounds the conviction will impact immigration status, but it is usually very difficult to persuade the courts to take this step. In most cases, the courts prefer to leave the decision up to INZ.
If a visa-holder becomes liable for deportation, there are a range of new factors to consider, including leaving New Zealand voluntarily to avoid a ban on re-entering New Zealand after being deported. While there are options for appealing deportation liability, these options can be very time-sensitive, and the Immigration and Protection Tribunal will generally only allow the most exceptional appeals.
Each case is different. If you are a visa-holder with any questions or concerns about deportation liability, you should contact your immigration adviser or lawyer, or contact us to inquire about an appointment.