The Risk of Deportation for Temporary Visa Holders | Pitt & Moore, Lawyers in Nelson

The Risk of Deportation for Temporary Visa Holders

If you employ migrant workers who are in New Zealand on temporary work visas, both you, as an employer, and they as visa holders, need to be aware of the huge impact any illegal activity can have on their immigration status and hence their ability to continue lawfully working for your business.

Of late, there has been a shift with Immigration New Zealand (INZ) more actively issuing deportation liability notices on temporary visa holders. INZ has the ability under Section 157(5)(b) of the Immigration Act 2009 to issue temporary visa holders with a deportation liability notice if the person has committed any criminal offence, no matter how minor.

A situation can become particularly confusing where a temporary visa holder is able to use the diversion scheme or is eventually discharged without conviction. Although it may appear the person was not strictly ‘convicted’ of an offence, to obtain a discharge without conviction or to be permitted to use the diversion scheme, a person has to first admit guilt to the crime they are charged with. This is where some migrant workers can unwittingly get into trouble under s157(5)(b) of the Immigration Act. It’s not all about the level of offending but any criminal offence that a temporary visa holder is guilty of could see them being sent home.

Accordingly, to understand the full repercussions on their ability to remain lawfully in New Zealand it is critical for temporary visa holders to seek immigration advice before any pleas are entered in any criminal proceedings. 

Penalties for employers

The maximum penalty under the Immigration Act 2009 for employing a foreign national who is not entitled to work in New Zealand is a fine of NZD $10,000.

The maximum penalty for allowing or continuing to allow a foreign national to work while knowing that person is not entitled to, is a fine of NZD $50,000.

Employers cannot: 

  • say “I didn’t know they didn’t have a valid visa to work in New Zealand” – it is legally your responsibility to check all your staff can legally work in New Zealand – employers can use INZ’s Visa View facility;

  • hire a migrant with a temporary visa to provide commercial sexual services; and

  • hire migrants and pay them less or offer them conditions below New Zealand’s workplace minimums - they have the same rights as New Zealand citizens and residents.

It is also critical for employers to comply with the minimum employment obligations and immigration law requirements and to keep one step ahead. Poor work practices, such as not closely monitoring the visa status or work rights of your migrant workers, can lead to serious consequences for employers.

In times like these, employers must make sure they have a proactive compliance mind-set. In the long term, this will reduce costs and will certainly position employers to move forward from being fragile to agile. 

For more information please contact:

Yvanca Clarisse, Solicitor, Pitt & Moore
Email: yvanca.clarisse@pittandmoore.co.nz
DDI: 03 545 6718

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Yvanca Clarisse

Position: Solicitor
Email: yvance.clarisse@pittandmoore.co.nz
DDI: +64 3 545 6718