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


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 you’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).

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: “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: “When could I be barred from getting any visa?” below).
  • 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: “Refugees”.

When could I be barred from getting any visa?

Immigration Act 2009, ss 15, 179

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.

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.

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, ss 16, 180

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

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 unlawfully. 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)”).

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: “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”).

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Where to go for more support

Community Law

Your local Community Law Centre can provide you with free initial legal advice.

Find your local Community Law Centre online: www.communitylaw.org.nz/our-law-centres

Immigration New Zealand

Immigration New Zealand is the government organisation that deals with visa applications and other immigration issues. It’s part of the Ministry of Business, Innovation and Employment.

Website: www.immigration.govt.nz
Phone: 0508 558 855

The Operational manual contains immigration instructions that people who want to come to New Zealand must follow. While it is not a step-by-step guide, it will help you follow Immigration New Zealand’s processes. Access it here: www.immigration.govt.nz/opsmanual

See also Immigration’s policies and processes: www.immigration.govt.nz/about-us/policy-and-law/how-the-immigration-system-operates

Immigration and Protection Tribunal

The Immigration and Protection Tribunal determines appeals on Immigration New Zealand’s decisions about refugee and protection matters.

Website: www.justice.govt.nz/Tribunals/immigration/immigration-and-protection

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