Understanding application restrictions, statutory ineligibility and the limited options that may still exist

A person is unlawfully in New Zealand if they are here without a valid visa. This commonly happens when a temporary visa expires and no further visa has been granted.

A person who is unlawfully in New Zealand has an obligation to leave and is liable for deportation. They cannot make an ordinary visa application from within New Zealand.

Depending on their circumstances, they may be able to request a visa under section 61 of the Immigration Act.

A person who is unlawfully in New Zealand and is not subject to a deportation order may ask Immigration New Zealand or the Minister of Immigration to exercise absolute discretion to grant a visa under section 61 of the Immigration Act, despite a person being unlawfully in New Zealand. A section 61 request is not an ordinary visa application.

A section 61 request involves explaining why your circumstances are special and why you should be allowed to remain lawfully in the country. Immigration is not required to consider the request, respond to it, or provide reasons if it is declined. However, for many people without a valid visa, a section 61 request is their only pathway to becoming lawful again.

In a section 61 request, there is:

• no right to have the request considered;
• no obligation for the decision maker to seek further information; and
• no obligation to provide reasons for the decision.

Making a section 61 request does not give the person lawful status and does not suspend their liability for deportation.

An excluded person may include someone who:

• has been sentenced to imprisonment for five years or more at any time;
• has been sentenced to imprisonment for 12 months or more within the past 10 years;
• is subject to a prohibition on entering New Zealand;
• has been removed, excluded or deported from New Zealand, subject to limited exceptions;
• has been removed, excluded or deported from another country; or
• is considered to present certain security, public-order or public-interest risks.

An excluded person may be able to lodge a visa application, but Immigration New Zealand cannot grant the visa unless an applicable legal exception, such as a special direction, applies.

Statutory ineligibility applies to excluded persons who cannot be granted a visa or entry permission unless a legal exception applies. A character waiver cannot overcome this statutory barrier.

Other applicants may have character concerns without being excluded persons. They may still be able to apply for a visa, but Immigration New Zealand may need to decide whether to grant them a character waiver.

The correct process therefore depends on the nature and seriousness of the character concern.

A special direction may authorise the grant of a visa and entry permission to someone who would otherwise be legally ineligible.

A request for a special direction is not itself a visa application. Nobody has a right to receive a special direction or to have a request considered, and the decision-maker is not ordinarily required to provide reasons.

Even if a special direction is given, it does not guarantee that a visa will be granted. The person must still meet all other applicable visa requirements.

Understanding whether you can apply for a visa, or whether you need to rely on discretionary pathways such as section 61 or a special direction, is critical. A poorly handled request can reduce your chances of success and affect future options.

Unlawful status, statutory ineligibility and ordinary character concerns are governed by different rules.

Before taking action, it is important to establish whether the person:

• can make an ordinary visa application;
• needs to make a section 61 request;
• requires a character waiver; or
• may need a special direction.

Using the wrong process can waste valuable time, particularly where the person is unlawfully in New Zealand or facing deportation.

Visa Matters can review your circumstances, explain the available options and help prepare the appropriate application or request.