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Communtity Law Manual | Immigration | Accessing the immigration system: Who can apply for a visa and who can’t

Accessing the immigration system: Who can apply for a visa and who can’t

Overview

Will I be allowed to apply for a visa?

Getting a visa and being allowed to be in New Zealand involves more than meeting the requirements for the particular visa – such as the particular health, character or sponsorship requirements. To get the visa you usually also need to be allowed to apply for it in the first place.

Not everyone has the right to apply and have their application considered: some people are barred from applying or getting a visa. You might be barred from applying because of your current situation – for example, because your current visa has expired and you’re now in New Zealand illegally, or because you’ve already claimed refugee status. Or you may belong to one of the categories of people who can’t be granted any visa because at some time in the past they’ve broken the criminal law or immigration law, either in New Zealand or overseas – for example, if several years ago you were deported from New Zealand for committing a crime.

If you’re not allowed to access New Zealand’s immigration system, it makes no difference that you otherwise qualify for the particular type of visa by meeting all the specific requirements for the visa under the government’s immigration policies. In the examples above, the problem is that you’ll be unable to access the immigration system in the first place and have Immigration New Zealand consider your case.

The barrier preventing you from applying for a visa might be permanent, or it might only last for several years (see below, “Is the barrier temporary or permanent?”).

On the other hand, not having the right to apply doesn’t mean you’re completely out of options, because Immigration NZ can make exceptions (see below, “Exceptions: Visas granted in special cases and by special directions”).

Note: For some visas, you have to file what’s called an “expression of interest” with Immigration New Zealand first – for example, you have to do this if you want a Residence Class Visa in the Parent and Skilled Migrant categories. You can then apply for the visa only if Immigration NZ responds by inviting you to apply.

Is the barrier temporary or permanent?

Immigration Act 2009, ss 15, 20, 85(2)(a), 150(2)

If you’re barred from accessing the immigration system, this won’t necessarily be a permanent problem. It might be a barrier that can be removed by you doing certain things (like returning to your home country for a short time if you’re here unlawfully) or simply by allowing time to pass, depending on why you’re barred. For example:

  • In New Zealand illegally – If you’re in New Zealand unlawfully, you can’t apply for a new visa as long as you’re here. But if you leave the country, this will “reset” the system for you: you’ll be allowed to apply for a new visa from overseas or, if you’re from a “visa waiver” country, you can return to New Zealand and apply for a visa and entry permission when you get here.
  • Past deportations – If you’ve ever been deported, whether from New Zealand or any other country, you’ll be barred from getting a visa or entry permission, either for a limited time or permanently, depending on why and when you were deported (for details of the length of the ban, see below “When could I be barred from getting any visa?”).
  • Limited Visas – If you have a Limited Visa, you can’t apply for a different type of visa, whether before or after the Limited Visa expires.
  • Refugee claims – If you’re in New Zealand on a Temporary Visa and you make an unsuccessful claim for refugee status, you’ll then be barred from applying for a further visa of any kind. But, just as when you’re in New Zealand unlawfully because your visa has expired, you can “reset” the system by leaving New Zealand and apply for a visa from overseas. For information about refugee claims, see the chapter “Refugees”.

When could I be barred from getting any visa?

There are different reasons why you might not be able to get a visa. You might not meet the government’s policy requirements for the particular visa you want, which are published in their Operational Manual. But you might also be barred under immigration law from being granted any kind of visa because of something that happened in the past – if, for example, you got a criminal conviction or were deported from New Zealand or another country.

If you’re barred for one of those reasons, this bar could be permanent or it could be temporary, depending on exactly what happened. This section explains when you can be barred, and how long for.

Immigration Act 2009, ss 15, 179

You’ll be barred for a set number of years in the following cases:

  • Jail terms – You can’t get a visa if at any time in the last 10 years you’ve been sentenced to jail for a term of 12 months or more.
  • Deported for unlawful status – If you’re deported from New Zealand for being here unlawfully, you’re then barred from getting a visa:
    • for two years after deportation, if you were here unlawfully for less than a year
    • for five years after deportation, if you were here unlawfully for a year or more, or if it wasn’t the first time you’d been here unlawfully.
  • Deported for breaching visa conditions or other wrongdoing – If you were deported from New Zealand for:
    • breaching the conditions of a Resident Visa, you’ll be banned for five years
    • breaching the conditions of your Temporary Visa, or because Immigration New Zealand thought there was some other good reason to deport you as a Temporary Visa holder, you’ll be banned for five years.

Immigration Act 2009, ss 15, 179

In the following cases, you’re permanently barred from being granted a visa of any type and from getting entry permission to New Zealand:

  • Long jail terms – You’re permanently barred if you’ve ever been sentenced to a jail term of five years or more.
  • Deported for fraud, crimes, security risks – You’re permanently barred if you’ve ever been deported from New Zealand because:
    • you obtained a visa or refugee status through fraud, forgery or a false identity, or
    • you committed a crime while you were here on a Residence Class Visa, or while you were here on a visa granted under one of the old Immigration Acts of 1987 or 1964, or
    • you were a risk to New Zealand’s security.
  • Deported or banned from other countries – You’re permanently barred if you’ve ever been deported from another country either because of some wrongdoing or because you were there unlawfully, or if you’ve ever been disqualified (“excluded”) under the laws of another country from getting a visa for or entering that country.

In special cases, however, even though you’re barred under those rules, you may be able to get a visa through a special direction from the Minister of Immigration.

Immigration Act 2009, s 180

Note: If you’ve been deported, you must repay the costs of your deportation before you can return to New Zealand.

Immigration Act 2009, s 16

As well as being banned from entering New Zealand because of past events in your life, you can be barred if the New Zealand government thinks you pose a current threat – specifically, if you’re likely to commit a criminal offence here for which you could be sent to jail, or if you present a current threat to New Zealand’s defence or security, to public order, or to the public interest.

Exceptions: Visas granted in special cases and by special directions

Immigration Act 2009, ss 11, 61, 378

The fact that you don’t have a right to access the immigration system and apply for a visa doesn’t always prevent Immigration New Zealand from choosing to consider your case and then granting you a visa, if you ask them to.

As a “special case”, Immigration NZ can grant a visa to someone who’s in New Zealand illegally. These are usually called “section 61” visas, because that’s the number of the section in the Immigration Act that allows them to be granted in special cases (see “Applying for a visa as a special case (‘section 61′ visas)” later in this chapter).

Similarly, if you’re disqualified from getting a visa because, for example, you were once deported from New Zealand, you can ask Immigration NZ for a visa through a “special direction” from the Minister of Immigration (see above, “When could I be barred from getting any visa?”).

But in these cases, Immigration New Zealand doesn’t have to even consider your request for a visa. And if they do consider your request, they have an “absolute discretion” – meaning very wide freedom – to make whatever decision they like, and they don’t have to give you any reasons for turning you down.

If you’re unable to apply for a visa because you’re here unlawfully, you can also ask the Immigration and Protection Tribunal to let you stay on exceptional humanitarian grounds (see “If you’re here illegally: Understanding your options” in this chapter).

Travelling to and entering New Zealand

COVID-19 border restrictions

At the time of publication, entry to New Zealand from other countries is still strictly controlled to help prevent the spread of COVID-19. If you are not in a Quarantine-free Travel Zone you still have to go through Managed Isolation.

For more information on the current border entry requirements, see www.immigration.govt.nz and search “New Zealand border entry requirements”.

Visas and entry permission

To get into New Zealand you need:

  • a visa, and
  • entry permission when you arrive.

You usually have to get a New Zealand visa from overseas before you arrive here, and if you don’t have a visa you won’t be allowed to board your flight here.

But many countries – basically all western countries and the wealthier Asian, Middle Eastern and South American countries – are covered by a New Zealand visa “waiver”. If you’re from one of those countries, you don’t need to get a visa first; instead you can apply for both a visa and entry permission when you arrive here (see below). Under new rules in force since October 2019 people covered by the visa waiver must apply for an Electronic Travel Authority (”ETA”) before they enter New Zealand.

You’ll usually be given entry permission if you have a visa, though it’s not guaranteed.

New Zealand Bill of Rights Act 1990, s 18

Note: All New Zealand citizens have the right to enter and leave New Zealand and move within it freely. If you’re not a New Zealand citizen but you’re here legally on a visa, you have the right to move around within New Zealand freely and to leave when you want.

Visas “visa waivers and Electronic Travel Authorities: Do I need a visa before I travel to New Zealand?

Immigration (Visa, Entry Permission, and Related Matters) Regulations 2010 ss23B, 23H, 23I

If you want to travel to New Zealand and stay here for a time, you’ll need to get a New Zealand visa before you come here, unless your country is covered by a “visa waiver”. If you’re from one of the visa waiver countries, you must apply for an Electronic Travel Authority (“ETA”) first and then you can apply for a visa at a New Zealand airport when you get here; if Immigration New Zealand allows you to enter the country, they’ll give you a visa and entry permission at the same time. You apply for an ETA online before you travel. It is valid for many visits and for up to 2 years.

Immigration Act 2009, s 69; Immigration (Visa, Entry Permission, and Related Matters) Regulations 2010, reg 18, Schedule 2

In the following cases, you”ll be covered by a visa waiver, and so you won’t need to get a visa overseas but instead you’ll need to get an ETA before you travel:

  • UK, up to 6 months – if you’re a British citizen or passport holder and you have the right to live permanently in the UK, but only for visits to New Zealand up to six months and only if you’re not coming here for medical treatment
  • Other visa waiver countries, up to 3 months – if you’re a citizen of one of over 50 countries that are specifically exempt, but only for visits up to three months. These countries include:
    • most European countries
    • Canada, the US and Mexico (but no Central American countries)
    • some South American countries, including Brazil, Argentina and Chile
    • Japan, South Korea and Malaysia (but no other Asian countries)
    • some Middle Eastern countries, including Israel, Saudi Arabia, Kuwait and UAE (and excluding, for example, Syria, Iraq and Iran).

    You can read the full list of visa-waiver countries at www.immigration.govt.nz (search for “Visa waiver countries”).

  • Individual cases – if you’ve been granted an exemption for your particular case by a special direction from the Minister of Immigration.

    Note: Australian citizens and permanent residents do NOT need to apply for an ETA.

Boarding your flight to New Zealand: Airline and Immigration NZ checks

When you check in at the overseas airport for your flight to New Zealand, the airline and Immigration New Zealand will do a check of whether you’re allowed to travel here, including whether you’ve got a valid passport and visa. This is called the “Advance Passenger Processing” system. If everything is okay, Immigration NZ will give the airline clearance to let you board and travel to New Zealand.

You might not be allowed to board if you don’t hold an ETA or your visa isn’t current or isn’t the appropriate type of visa, or if your visa hasn’t yet been transferred over to your current passport or the passport you’re using to enter New Zealand.

Arriving in New Zealand: When and how do I get entry permission?

Once you arrive in New Zealand with your visa, you’ll need to apply for entry permission at the airport. If you don’t already have a visa because you’re from a “visa waiver” country, you show your ETA and apply for a visa and entry permission at the same time when you arrive.

Getting entry permission usually just involves giving an Immigration Officer your arrival card when you arrive (which you’ll have been given on your way to New Zealand), along with your passport and visa (if you’ve already got a visa) or ETA. You’ll also usually have to show the Immigration Officer that you’ve got travel tickets out of the country. Details of the requirements for travel tickets or adequate money or sponsorship are included in this chapter, see “Temporary Visas: Working, studying or visiting for a limited time” and “Residence Class Visas: Living in New Zealand permanently.

Immigration Act 2009, s 46

Having a visa doesn’t guarantee you entry permission once you arrive, but you’ll usually be granted it unless Immigration New Zealand has found some reason to exclude you in the time since they approved your visa application from overseas – for example, if they found that you left out some relevant information from your visa application. Having the visa indicates that, at the time it was granted, Immigration NZ had no reason to think you should be refused entry permission once you arrive.

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