Immigration Act 2009, ss 43(1), 71(1), 79(1)

If you are not a New Zealand citizen, then being in New Zealand legally usually depends on having current permission from Immigration New Zealand in the form of a “visa”.

You can apply for a New Zealand visa from overseas and, once you get to New Zealand, you can apply for entry permission. All non-citizens of New Zealand need “entry permission,” as well as a visa, to be able to get into New Zealand in the first place (unless you are a citizen of a “visa waiver” country – see note below).

Once you’re in New Zealand on a current visa, the visa gives you the legal right to stay here for the time stated in the visa. If you then leave New Zealand, the visa may also let you return here and apply for entry permission again, so long as your visa hasn’t expired and your travel conditions allow it. If you’re in New Zealand on a current visa, you usually have the legal right to apply to Immigration NZ for a further visa to cover you when your current one expires (There are exceptions to this – see: “No right to apply for a new visa if you’re here unlawfully” below).

Note: For some countries (“visa waiver” countries), you don’t need a visa to travel to New Zealand and ask for entry permission. Instead, when you arrive you can apply for your visa and entry permission at the same time. You may still need to apply for a New Zealand Electronic Travel Authority (“ETA”) before you come to New Zealand. For all other countries, you apply for a New Zealand visa in your home country and then travel here and apply for entry permission when you arrive (see: “Travelling to and entering New Zealand”).

Immigration Act 2009, s 14

As a non-citizen, you can lawfully be in New Zealand only if you have a current visa (or if you’ve applied for or been granted refugee status). If your visa has expired, or if you never had a valid visa in the first place, this means you’re here unlawfully and that you may have to leave New Zealand.

The government may remove you (“deport” you) if you haven’t left voluntarily within a certain time. You do, however, have some options that could give you the right to stay, including some specific appeal rights (see: “If you’re here illegally: Understanding your options”).

Note: New Zealand’s immigration system doesn’t use the terms “legally” and “illegally” when talking about whether you have a current visa and so have a legal right to be in New Zealand. The official terms are “lawfully” and “unlawfully,” and “lawful status” and “unlawful status”. So, in this chapter, we’ve generally used the terms “lawfully” and “unlawfully”.

Immigration Act 2009, ss 14(2), 20, 71(1), 79(1)

If you’re in New Zealand and you let your visa expire, you’ll be here unlawfully and won’t have a right to apply for a new visa. So, if you’re in New Zealand under a current visa and want to stay longer than this visa will allow, you need to make sure you apply for a new visa before the current one expires, and that you apply early enough for Immigration New Zealand to process your application before the current visa expires.

The fact that you’ve simply applied for a new visa doesn’t of itself give you a right to be in New Zealand. However, Immigration New Zealand can decide to grant you an Interim Visa so that you keep your legal immigration status while they’re considering your application. These interim visas normally last either 6 months or until just after a decision is made on your application, whatever happens first. Your interim visa may not have the same conditions as the visa you had or the visa you are applying for, so it is always important to check.

If you’re here unlawfully, one option is to leave New Zealand voluntarily and access the visa system from overseas. Leaving New Zealand “resets” the system for you, allowing you to apply for a visa once again. If, however, you stay here until Immigration NZ forcibly deports you, you’ll face a ban on returning to New Zealand for a certain number of years (see: “Accessing the immigration system: Who can apply for a visa and who can’t”).

However, it’s not totally impossible to get a new visa from within New Zealand once you’re here unlawfully, because Immigration NZ has a broad power (a “discretion”) to grant you a new visa in this situation. However, you have no right to apply for the visa in these cases and have Immigration NZ properly consider your application. They can simply choose to ignore your request for a visa if they want to, without even considering it. Or they can grant you a different kind of visa than what you asked for (for example, if you asked for a visa that will let you work under this broad power, immigration may give you a visa that doesn’t let you work). It’s different when you apply while you’re here legally, as Immigration NZ then has a legal duty to at least consider your application.

The two main classes of visa are Temporary Entry Class Visas, which allow you to work, study or visit here for a limited time, and Residence Class Visas, which let you live here permanently.

Immigration Act 2009,ss 70, 85(2)

Here’s how the immigration laws formally break down the different types of visa:

• Temporary Entry Class Visas
  • Temporary Visas – Immigration New Zealand divides these into Work Visas, Student Visas and Visitor Visas.
  • Limited Visas – These let you be here only for the particular purpose allowed by the visa – for example, to get medical treatment. You cannot apply for any other kind of visa while in New Zealand on a limited visa.
  • Interim Visas – If you’ve applied for a new Temporary Visa, Immigration NZ can decide to grant you an Interim Visa so that you keep your lawful immigration status while your application is being processed.
• Residence Class Visas
  • Resident Visa – This is the first stage of getting New Zealand residence. The “Resident Visa” lets you live and work here indefinitely, but there are still some travel restrictions for two years. After two years you can apply for a “Permanent Resident Visa”.
  • Permanent Resident Visa – This lets you live and work in New Zealand permanently, and there are now no travel restrictions, so you can leave and return to New Zealand whenever you like.

Another type of visa – a Transit Visa – lets you be in New Zealand legally at the airport for up to 24 hours while you’re on your way to somewhere else.

Immigration Act 2009, s 44

Note: You can hold only one current visa at a time.