If you’re here illegally: Understanding your options
Applying for a visa as a special case (“section 61” visas)
If your visa has expired and you’re now in New Zealand unlawfully, one option is to apply for a visa as a special case under section 61 of the Immigration Act. This is generally a last resort – it’s mainly intended for when you’ve tried all other channels for getting a visa. You might be able to succeed where you’ve got some very strong reason for being allowed to stay in New Zealand.
Immigration New Zealand has “absolute discretion” in these cases, meaning that there are few restrictions on them in how they go about making the decision, and you have no appeal rights if you’re turned down. Legally, Immigration NZ doesn’t have to even consider your application – although in practice they consider all applications at least to some degree.
The full range of visas can be granted under section 61. Once you’ve been granted a visa under this section, you have the same immigration status as anyone else who’s been granted that particular type of visa.
Immigration Act 2009, ss 61(1)(b), 177(1)
Note: Section 61 visas can only be granted if a deportation order hasn’t been made against you. In practice, however, you can still apply under section 61, and if the Immigration Officer dealing with your application decides you should be granted a visa, they can talk to the officer who made the deportation order and ask them to cancel it. That way a new visa can be granted.
When you’ll have strong arguments for a visa as a special case under section 61
Immigration New Zealand will look at:
- your immigration history – for example, whether you’ve been in New Zealand unlawfully before
- your current situation – including why you need to stay in New Zealand, how long you’ve already been here unlawfully, why you don’t have a current visa, what efforts you’ve made to try to get one, and whether your unlawful status is because of something outside your control
- your health and character.
They can also consider:
- whether you’ve got a likely pathway to New Zealand residence
- whether you’re well-established here with strong family ties
- whether you’re a security risk.
Immigration New Zealand has said you’ll have a strong case if:
- you can provide them with a full picture of your situation and why you’re a special case, and
- there’s solid evidence of the contribution you’ve made to New Zealand, and
- you haven’t deliberately attempted to stay here unlawfully for a long time.
To get a section 61 visa, you don’t have to show exceptional or humanitarian circumstances, but your case does usually need to be something out of the ordinary.
Can I challenge the decision if I’m refused a section 61 visa as a special case?
If you’re refused a visa under section 61, you have no right to appeal the decision to any appeal body or court.
You can take your submissions to the Associate-Minister of Immigration to ask them to step in. The Associate-Minister can grant visas even where the section 61 visa has been declined. However, this doesn’t normally count as an application like a section 61 visa, which means that Immigration NZ compliance may try and deport you while you wait for the Associate-Minister to make a decision, but they do often wait.
You can apply to the High Court for “judicial review” of the decision, but this is a limited option where the judge will look mainly at the decision-making process Immigration New Zealand followed.
You may be able to complain to the Ombudsman. For more about judicial review and complaining to the Ombudsman, see: “Dealing with government agencies”.
