Frequently Asked Questions on Deportation

By Elly Fleming

17 June 2024

If you, or your family member, are facing possible deportation from New Zealand, don’t bury your head in the sand, act now, get expert legal advice and know your options. Below are answers to some frequently asked questions concerning deportation which may be of assistance.

If I’m facing deportation, do I have to leave New Zealand as soon as possible?

Any number of things can happen that can activate or give rise to deportation liability, so no two situations are ever completely the same. For example, when visa holders commit crimes in New Zealand they can become liable for deportation. This can include drink driving and more serious criminal offences. Another common scenario is visa holders breaching their visa conditions (for instance working on a visa that has no work rights or working for a different employer).

Usually, you do not have to leave New Zealand straight away. In most cases, there would be options or certain steps that you could take. For example, you may be able to appeal against your deportation liability, within certain time limits. The options will also depend on the class of visa that you hold.

It is critical that you know and understand all of your options so that you can make an informed decision. Getting professional legal advice (at times from both criminal and immigration lawyers) as soon as possible can assist greatly in this regard. However, from our experience where people leave things to the very last minute, we find that they often lose their chance of being able to stay here.

Will I be allowed to remain in New Zealand?

As no two situations are ever completely the same, whether you will be allowed to remain in New Zealand will largely depend on what event(s) activated or gave rise to your deportation liability as well as on any mitigating factors that you may have.

From our experience, usually the stronger your ties to New Zealand, the stronger your prospects of being allowed to stay. For example, if you have family members in New Zealand, who are New Zealand citizens and/or residence visa holders, this in certain circumstances could form the basis for you being allowed to stay here. Likewise, if you have skilled employment, and your New Zealand employer relies on your specialist skill set and would find it very difficult to replace you, this could equally improve your prospects of being allowed to remain in New Zealand.

In many instances, people face deportation due to criminal offending or convictions in New Zealand. Typically, the nature of criminal offending, how long ago it occurred, and its severity will have a bearing on the chances of being able to stay in New Zealand. For example, a person convicted for the first time of drink driving may have a stronger chance of remaining in New Zealand, compared with someone who was convicted of a sexual assault or family violence.

Your circumstances are unique and there could be many factors that could help you challenge your deportation or entirely avoid deportation proceedings (see: Discharge Without Conviction section below). It’s really important to get professional advice.

We are experts in this area and can give you advice on your particular circumstances. If we believe we can assist, we will explain your chances of success and the costs associated with engaging us.

Is it better for me to leave New Zealand voluntarily without fighting my deportation?

As noted above, each situation is different and there is no ‘one-fits-all’ answers. It will depend on your particular circumstances and future plans, including any plans for travel to other countries.

If you decide to leave New Zealand voluntarily within the period of time that Immigration New Zealand has given you, for example either within the 14 days of being served with the Deportation Liability Notice or within your appeal period, then technically you will not have been deported from New Zealand. The benefit of this approach if you are planning to travel to countries like Australia or United States of America or the United Kingdom or Canada, in your future visa applications you can legitimately answer “no” when asked the standard question “Have you ever been deported from any country?”. On the downside, your prospects of being able to return to New Zealand would generally be low.

If I am deported, will I be allowed to return to New Zealand?

Normally, it would be very challenging for you to gain entry permission or a new visa following deportation or removal from New Zealand. In certain situations, you may be able to return. Professional advice and assistance are highly recommended if you or your loved ones are trying to return to New Zealand following a deportation.

It is also important to be aware of the specific bans on re-entry to New Zealand if you have been deported. These bans are specified in section 179 of the Immigration Act 2009, they range from two to five years if you have been in New Zealand unlawfully, but for more serious grounds for deportation including criminal convictions, classified as being a threat to security, immigration fraud, visa granted on basis of false identity, there are permanent bans (this means you can never return, unless Ministerial intervention can be obtained).

From our years of experience, we know that in most cases it is prudent to oppose your deportation liability while you are still in New Zealand. Once you are outside New Zealand the obstacles in the way of returning following a deportation are usually very high.

What is a ‘Deportation Liability Notice’?

A Deportation Liability Notice is a very serious warning to the visa holder that they are at risk of being deported from New Zealand. The notice sets out the grounds for deportation liability, including which section of the Immigration Act applies, the consequences of deportation, as well as the review and appeal rights, along with the applicable time limits, if such rights exist.

What is a ‘Deportation Order’?

A Deportation Order is a direction stating that the affected person is required to leave New Zealand. It allows Immigration New Zealand to immediately act to detain and remove the affected person from New Zealand (i.e put them on the first available craft leaving New Zealand). Sometimes New Zealand Police will assist or be involved in this process. This can happen as soon as the Deportation Order is served on the affected person. However, for practical reasons this process can often take several days or longer.

Generally, Deportation Orders may only be served after the affected person has exhausted their legal rights of review or appeal under the Immigration Act or has done nothing to exercise their legal rights within the prescribed time limits.

The order typically sets out the grounds for deportation liability, the consequences of deportation and the costs that must be repaid to the New Zealand Government for the actual deportation.

What is a ‘Discharge Without Conviction’ and how does it help me if I am facing deportation?

A discharge without conviction under section 106 of the Sentencing Act 2002 in New Zealand is a legal outcome where a person who has been charged with a criminal offense is discharged without being convicted. This means that while the person may have admitted or been found guilty of the offense, they are not convicted of it. Instead, the court decides to discharge them without entering a conviction against their name.

Generally, a discharge without conviction could help mitigate the negative impact of a criminal conviction on the immigration status of temporary entry class visa holders (work visas, student visas, visitor visas etc…) or assist residence class visa holders (Resident Visas and Permanent Resident Visas) to entirely avoid deportation proceedings. 

If you are charged or are under criminal investigation while holding a visa in New Zealand, its essential to consult with both criminal and immigration lawyers to understand fully how a criminal conviction could impact you. 

Talk to us

It is critical that anyone who finds themselves facing possible deportation obtains legal advice from immigration experts to give themselves the best possible chance of remaining in New Zealand.

Our Immigration and Litigation Teams assist visa holders with both criminal and immigration advice. We also provide expert opinions in support of section 106 discharge without conviction applications, addressing in detail the immigration consequences of criminal convictions for visa holders or people unlawfully in New Zealand.

If you’d like more information on this topic talk to Elly Fleming, Associate, Pitt & Moore.

Disclaimer: The information contained in this publication is of a general nature and is not intended as legal advice. It is important that you seek legal advice that is specific to your circumstances.

Elly Fleming

Elly Fleming

Position: Associate
DDI: +64 3 545 6714

Topics: All Select