Understanding Section 61 Requests to Immigration NZ

A “Section 61” is a request to Immigration New Zealand (INZ) for the discretionary grant of a visa by a person that is in New Zealand unlawfully and therefore unable to apply for a visa. Section 61 refers to the section of the Immigration Act 2009 that empowers INZ (acting through delegated powers from the Immigration Minister) to grant a visa in these circumstances.

Visa Expiration and Consequences

The starting point is that a person who holds a New Zealand temporary entry class visa should keep a record of their visa expiry date and ensure they do not remain in New Zealand beyond that date and become unlawful.

It’s important to note that if a person has applied for a further temporary visa and been granted an interim visa while that application is being decided, that interim visa will expire 21 days after their application is declined or after 6 months if no decision has been made on their application in 6 months. If the person remains in NZ beyond the 6 months maximum stay of their interim visa, they will automatically become unlawful in New Zealand, even if they still have a visa application in process at INZ. In a situation where the person’s application is subsequently approved by INZ and they are granted a further temporary visa, technically speaking that visa would be granted pursuant to Section 61 (because they are unlawful at the date it is granted).

It’s also important to note that where a person is in New Zealand unlawfully, they are already liable for deportation (i.e. there is no need for INZ to issue them with a a deportation liability notice) and after any right to appeal has expired they can be issued with a deportation order and deported immediately.

Eligibility for Section 61 Request

A person may lodge a Section 61 request if they are unlawfully in New Zealand and not subject to a deportation order or exclusion.

A decision by INZ to grant a Section 61 visa is made at its “absolute discretion”, which (as defined in Section 11 of the Immigration Act 2009) means that:

• It cannot be applied for (only requested).

• INZ is not required to consider the request (although it normally always does), inquire into the circumstances of the person making the request, or make any further inquiries with respect to any information provided by the person as part of the request.

• INZ is not required to give reasons for its decision not to grant a visa in response to a Section 61 request (as it is required to do for a visa application).

• INZ’s decision not to grant a visa cannot be appealed, including in the courts, except by judicial review (and only in very rare cases - such as where INZ’s failure amounts to ‘Wednesbury’ unreasonableness - would the courts ever be likely to intervene).

It's possible for a person to lodge more than one Section 61 request in the event a previous one has been refused by INZ. A subsequent Section 61 request might have merit where the person’s circumstances have changed significantly since their previous Section 61 request or their previous request was deficient in some significant way (for example, important information or evidence was omitted).

Making a Section 61 Request

Section 61 requests can be lodged by email to s61@mbie.govt.nz or by post/courier to Immigration New Zealand’s Manukau PO/DX box.

Section 61 requests should be accompanied by all documentary evidence that is necessary to support the person’s reasons for being granted a visa, particularly in addressing the relevant factors discussed in the next section below, including the requirements for a particular visa category or categories.

If lodged by an immigration lawyer, the request should be accompanied by a detailed cover letter (and not simply a 1 page cover letter) which provides an overview of the person’s request and the key messages and themes, a comprehensive background to the person and their personal circumstances, and detailed submissions (by reference to the supporting evidence) in respect of the various reasons why the person is deserved of the grant of a visa and/or the circumstances mitigate in favour of a visa.

Only if the Section 61 request is approved does an INZ application fee become payable (which is NZD460 for the grant of a temporary visa or NZD1,060 for the grant of a resident visa).

Assessment and Decision-Making Process

Requests under Section 61 are normally only granted in special cases.

As a minimum, a person lodging a Section 61 request should demonstrate to INZ (with evidence) that but for their being in New Zealand unlawfully they would otherwise meet the requirements of a particular visa category. For example, they might provide evidence to show they live in a genuine and stable partnership with a NZ citizen or resident visa holder and would otherwise meet the INZ partnership visa category requirements and/or they have a job offer from an accredited NZ employer with a valid job check and would otherwise meet the Accredited Employer Work Visa requirements.

In assessing a Section 61 request, INZ will normally weigh the ‘positive’ aspects of a person’s circumstances with the ‘negative’ ones. Examples of the sorts of factors that INZ might take into account include:

• How long the person has been in New Zealand unlawfully, and the previous attempts the person might have made to regularise their visa status.

• How the person came to be in New Zealand unlawfully; e.g. did they simply let their previous visa lapse or did they apply for a visa and INZ declined it and, if so, the reasons for the visa decline.

• Whether the person is likely to become an overstayer again if granted a temporary visa.

• Whether the person has a clear pathway to New Zealand residence.

• Any health or character issues. For example, whether they have a criminal conviction or were found by INZ to have provided false/misleading information in a previous visa application. If there are character issues, these should be addressed as part of the Section 61 request. It’s important to note that, even if the request is successful and they’re granted a visa, it’s likely that any character issues will continue to be raised by INZ in any future visa application.

• Whether there are any humanitarian circumstances that mitigate in favour of the grant of a visa such as, for example, a New Zealand citizen partner, dependent NZ citizen child or children, or other family or people in New Zealand that might be adversely affected if the person is forced to depart from New Zealand.

• Whether the person has any other family ties to New Zealand.

• Whether the person’s potential contribution to New Zealand is or will be significant.

A good Immigration Lawyer will work closely with the client to help identify the key positive messages and arguments of their client’s case and the types of evidence needed to back them up, as well as identify the key negative aspects of their client’s case and advise on how they might be addressed or mitigated.

Outcomes and Appeals

If a person’s Section 61 request is successful, they’ll normally be granted a visitor visa or open work visa of a short duration (e.g. 3 – 6 months) to enable them to lodge a visa application and have it assessed on its merits.

While awaiting the outcome of any subsequent visa application, they’ll normally be granted an interim visa to enable them to remain in New Zealand while that application is processed at INZ.

It's rare in my experience that INZ is willing to grant a residence class visa as a Section 61.

If a person’s Section 61 request is unsuccessful (and they don’t have an appeal against deportation lodged with the Immigration & Protection Tribunal), they should depart from New Zealand immediately, or they could look to lodge promptly with the Minister of Immigration a request pursuant to Section 378 of the Immigration Act 2009 (known as a “Special Direction” request) for the discretionary grant of a visa.

Normally, INZ Compliance will not take steps to deport a person who has lodged a Special Direction request with the Immigration Minister; although, of course, this cannot be guaranteed, and it is advisable for INZ Compliance to be informed of the person’s intention to file a Special Direction request.

Normally, the Immigration Minister won’t consider the grant of a Special Direction unless the person has first lodged an unsuccessful Section 61 with INZ.

If a Special Direction request to the Immigration Minister is also unsuccessful, the person should make arrangements for their immediate departure from New Zealand to avoid being issued with a deportation order and deported from New Zealand, which would not only worsen their immigration prospects for New Zealand but also for other countries.

Conclusion

If a person is in New Zealand unlawfully, the stakes could not be higher, and it’s important they seek professional help from an Immigration Lawyer. Their lawyer should provide them with a frank and honest assessment of their potential prospects in a Section 61 request, as well as other potential options that might be available to them (for example, an offshore residence visa application). If the person decides to proceed with a Section 61 request, again, they should invest in legal representation from an immigration specialist to ensure they present the strongest possible case for the grant of a visa.