Criminal Convictions and Immigration Consequences: Major Changes to Section 161 of the Immigration Act
Recent changes to section 161 of the Immigration Act 2009 have significantly expanded the circumstances in which resident visa holders can become liable for deportation following criminal offending. For migrants, criminal lawyers, and anyone advising non-citizens, understanding these changes has never been more important.
The amendments that came into force on 27 May 2026 broadened deportation liability provisions for residence class visa holders. The consequences are clear: more resident visa holders are now at risk of deportation as a consequence of criminal offending.
Key change at a glance
Prior to 27 May 2026, deportation liability under section 161 generally depended on a conviction being entered. Following the amendments, provided the statutory thresholds are met, deportation liability may arise from a guilty plea or finding of guilt, even where a discharge without conviction is subsequently granted.
What changed on 27 May 2026?
Before 27 May 2026, section 161 generally applied to residence class visa holders who had been convicted of offences that met the deportation thresholds set out in the Act. Those thresholds apply according to how long the person has held a residence class visa and may be triggered where an offence is punishable by a specified term of imprisonment or where a sentence of imprisonment of five years or more is imposed.
In practice, this commonly included offending such as drink driving, dangerous or careless driving causing injury, assault offences, breaches of protection orders and other serious offending.
As a result, deportation liability was more closely linked to both the seriousness of the offending and the entry of a conviction. By contrast, the 2026 amendments significantly broaden the scope of the provision.
The amended section161 now provides that a residence class visa holder may become liable for deportation whether in New Zealand or overseas if they are:
convicted of a qualifying offence;
found guilty of a qualifying offence; or
plead guilty to a qualifying offence.
As a result, immigration consequences may arise in a wider range of circumstances than under the previous law.
A qualifying offence is not simply any criminal offence. The offence must still fall within the deportation thresholds in section 161. Those thresholds depend on how long the person has held a residence class visa and may be engaged where an offence is punishable by a specified term of imprisonment or where a sentence of imprisonment of five years or more is imposed.
Importantly, the previous version of section 161 generally required a conviction before deportation liability arose. The amended provision expands the circumstances in which deportation liability can arise by also capturing findings of guilt and guilty pleas.
More resident visa holders will be liable for deportation
Since deportation liability can now arise following a guilty plea or finding of guilt, even where no conviction is ultimately entered, the amendment expands the class of residence class visa holders who may become liable for deportation.
The practical consequence of the amendment is that more people will now fall within the scope of section 161.
For many migrants, deportation liability can place their future in New Zealand at risk, even if they:
have lived in New Zealand for many years;
have a New Zealand partner or children;
have purchased a home;
own a business;
have established a long-term career; or
are deeply connected to their local community.
Once deportation liability arises, individuals often require specialist advice and representation to understand their rights and explore options for remaining in New Zealand.
For many people, obtaining specialist immigration advice at an early stage can make a critical difference.
Immigration consequences often extend beyond deportation
Many residents ultimately wish to obtain a Permanent Resident Visa and/or New Zealand citizenship. Criminal offending may affect a person's immigration position in ways that can in turn affect future eligibility to obtain or retain permanent residence or secure New Zealand citizenship.
For resident visa holders, a criminal conviction can have ongoing implications for:
Permanent Residence
Many residents ultimately wish to obtain a Permanent Resident Visa. Criminal offending can create significant complications when future applications are assessed.
New Zealand Citizenship
A criminal conviction can also impact an individual's eligibility for New Zealand citizenship. Character assessments remain a key part of the citizenship process, and convictions may result in delays or refusals.
International travel
A conviction can create difficulties when travelling internationally. Many countries require applicants to disclose criminal convictions or criminal history when applying for visas or entry permission, including:
Australia,
the United Kingdom,
Canada, and
the United States.
Someone who travels regularly for business, employment opportunities, family commitments or holidays may find that a conviction significantly restricts future travel options.
In some cases, a conviction that appears relatively minor in the New Zealand criminal context can create major immigration barriers overseas.
Why immigration advice matters before a guilty plea
One of the most common misunderstandings is that immigration issues can be addressed after a criminal case has been resolved.
In reality, decisions made much earlier in the criminal process, particularly whether to plead guilty and to what charge, can have a significant impact on a person's immigration position. By the time a guilty plea or conviction has been entered, opportunities to reduce immigration risk may already have been lost.
Under the amended section 161, deportation liability may arise following a guilty plea, even where no conviction is ultimately entered, provided the statutory thresholds are met. This means the immigration consequences of a criminal charge often need to be considered before any plea is entered.
For resident visa holders, obtaining immigration advice at an early stage can therefore be critical.
Early advice can help individuals understand:
whether deportation liability may arise;
whether alternative charging outcomes may reduce risk;
the significance of the maximum penalty attached to an offence;
the impact of a conviction on future permanent residence and citizenship pathways; and
broader international travel implications, including ability to live in Australia.
Importantly, criminal lawyers who identify immigration issues at an early stage are often able to achieve better outcomes for their clients.
Immigration lawyers as expert witnesses in section 106 applications
Immigration consequences can also be highly relevant in applications for a discharge without conviction under section 106 of the Sentencing Act 2002.
A court may grant a discharge without conviction where the consequences of a conviction would be out of proportion to the gravity of the offending.
Historically, a discharge without conviction often avoided deportation liability under section 161 because no conviction was entered. Following the 2026 amendments, that is no longer necessarily the case. A guilty plea or finding of guilt may itself trigger deportation liability where the statutory thresholds are met, even if the court ultimately grants a discharge without conviction.
A discharge without conviction may nevertheless remain highly relevant in reducing or avoiding other immigration and citizenship consequences and may continue to be an important consideration in appropriate cases.
Specialist immigration lawyers can assist by providing expert evidence regarding the likely immigration consequences of a conviction. This evidence may address:
whether a guilty plea or finding of guilt may itself trigger deportation liability under section 161;
visa cancellation or refusal risks;
impacts on future permanent residence applications;
impacts on eligibility for New Zealand citizenship;
restrictions on international travel and visa applications; and
broader immigration consequences for the individual and their family.
For many migrants, these consequences can be severe and long-lasting. Well-prepared immigration evidence can therefore play an important role in section 106 applications.
Key takeaway for criminal lawyers
The 27 May 2026 amendments to section 161 reinforce the need for criminal lawyers to identify immigration issues at the earliest possible stage.
Before advising a client to plead guilty, it is critical to establish:
the client's immigration status;
whether they are a resident or permanent resident visa holder;
whether deportation liability could arise;
whether a discharge without conviction should be considered; and
whether specialist immigration advice is required.
A plea that appears sensible from a criminal law perspective may carry life-changing immigration consequences.
Early collaboration between criminal lawyers and immigration specialists helps ensure clients fully understand the consequences of any charge, plea and conviction, and gives them the best opportunity to protect both their immigration status and their future in New Zealand.
Looking ahead
The amendments that came into force on 27 May 2026 already represent a significant expansion of deportation liability for resident visa holders. However, the story does not end there. Proposed reforms currently before Parliament in the Immigration (Enhanced Risk Management) Amendment Bill suggest a clear policy direction toward even stricter deportation settings and an increased willingness to impose immigration consequences for criminal offending. If enacted in its current form, the Bill may expand deportation exposure further, including in circumstances where offending predates commencement of the legislation.
For resident visa holders, the consequences of a guilty plea or conviction can now extend far beyond the immediate criminal penalty. A decision made in the criminal justice system may have life-changing implications for a person's ability to remain in New Zealand, obtain permanent residence or citizenship, and travel internationally.
Against this backdrop, obtaining specialist immigration advice at the earliest possible stage is no longer merely prudent, it is essential. For visa holders facing criminal charges, and for the lawyers advising them, early consideration of immigration consequences can be critical to protecting a client's future in New Zealand and ensuring fully informed decisions are made throughout the criminal process.
How Pitt & Moore can help
Our immigration team regularly advises migrants facing criminal charges and works alongside criminal defence counsel throughout New Zealand. We provide early immigration risk assessments, expert evidence for section 106 discharge applications, and representation for individuals facing deportation liability arising from criminal convictions.
If you or your client require advice on the immigration consequences of criminal offending, contact our Immigration Team.
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.