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For people living in New Zealand without a valid visa, the search for a solution can be stressful, expensive and confusing. Often, the first recommendation they receive is to make a request under section 61 of the Immigration Act 2009. Sometimes that is sensible advice. Too often, however, it is offered without a convincing explanation of why it might succeed.
With a general election coming this week, the possibility of an amnesty or another regularisation programme may also be a serious consideration for long term overstayers. It deserves careful discussion alongside the options available now, without treating a possible change of government as a promise of a visa.
What matters is a realistic strategy for resolving the person’s immigration position. That requires an honest assessment of section 61, any available Tribunal appeal, ministerial intervention and the possibility of leaving New Zealand and applying from offshore.
A person unlawfully in New Zealand cannot make an ordinary application for a further visa. Section 61 provides a discretionary power to grant a visa in a special case, provided the person is not subject to a deportation order. It is a request for discretion, rather than a visa application carrying the usual procedural protections.
Immigration New Zealand has no obligation to consider the request, seek further information or give reasons for refusing it. Making the request does not restore lawful status, confer work rights or automatically prevent deportation. Even appearing to meet the requirements for a particular visa does not create an entitlement to receive it.
Requesting the INZ file will not necessarily explain the outcome. Although some internal information may be available, the statutory restrictions on access to reasons mean that a person should not expect to obtain the decision maker’s reasoning through an Official Information Act or Privacy Act request. There is also no ordinary merits appeal against a section 61 refusal.
In my experience, a stronger case may arise where a visa has expired only very recently because of an oversight or administrative mistake, the person acts promptly, and there is a clear basis for granting a further visa. Someone who discovers an expiry error within a few days and immediately addresses it is in a different position from someone asking INZ to overlook unresolved eligibility problems. Approval is still discretionary.
Compelling humanitarian circumstances may also justify a request. These can include the interests of New Zealand citizen children, children who have spent much of their lives here, serious dependency within a family, and substantial obstacles to leaving New Zealand. The circumstances must be explained and supported by evidence. Having children or a New Zealand partner does not, by itself, guarantee a visa.
For someone in a genuine partnership with a New Zealand citizen or resident, the important questions include whether residence requirements can be met and why an offshore application would cause unusually serious difficulties. The case needs to explain the actual consequences of departure for the family.
Anyone considering section 61 should anticipate a question INZ is likely to ask itself: “Why can’t this person simply leave New Zealand and apply for a visa to re enter from offshore?” A persuasive request needs to answer that question directly. Wanting to avoid the expense, inconvenience or uncertainty of departure will often be insufficient. The case should explain what makes an offshore application impractical or why departure would have unusually serious consequences.
Where INZ has recently declined a visa, a section 61 request should not be presented as a straightforward second attempt. If the underlying problem remains unchanged, there needs to be a persuasive explanation of why a different result should follow.
For example, an unresolved character issue, the absence of a qualifying job offer or a significant breach of visa conditions will not disappear because the same circumstances are presented under section 61. New evidence, a material change in circumstances or compelling humanitarian considerations may alter the assessment. Simply repeating the original case usually offers little reason for optimism.
Before paying for a request, clients should ask their lawyer or licensed adviser to identify the specific grounds, explain the weaknesses and discuss the alternatives. In my view, charging for a weak request without a candid assessment of its prospects is poor professional practice. The fact that a request can be submitted does not establish that it is worth the client’s money.
An assessment should also identify whether a humanitarian deportation appeal to the Immigration and Protection Tribunal is still available. Deadlines are strict. For someone whose liability arises from becoming unlawful, the period is generally 42 days, although the precise calculation depends on the circumstances, including any qualifying reconsideration process.
The Tribunal is independent of INZ. A humanitarian deportation appeal allows it to assess whether the consequences of deportation meet the statutory test. It is not simply another opportunity to argue that the person deserves the visa INZ previously declined.
The threshold is deliberately demanding. Section 207 requires “exceptional circumstances of a humanitarian nature”. Those circumstances must make deportation unjust or unduly harsh. The Tribunal must also be satisfied that allowing the person to stay would not conflict with the public interest. Both parts of the test must be met.
That requires much more than showing that life in New Zealand is better than life in the country of return. A good job, community support, financial hardship or understandable disappointment will not necessarily be enough. The Tribunal examines the circumstances as a whole, including the consequences for partners and children, serious health or dependency issues, and any other compelling humanitarian factors.
Children’s interests can be particularly important. The evidence should explain their lives in New Zealand, their relationships, education and health, and the likely effects of separation or relocation. General statements that the children will be upset are much less useful than detailed evidence of the actual harm likely to result. Even a sympathetic family situation does not automatically meet the legal threshold.
Only a minority of these appeals achieve the substantive outcome the appellant seeks. Success figures also need care: an unsuccessful appellant may receive a short visa solely to settle their affairs before leaving. That is very different from winning the right to remain. A client should understand this distinction before committing to the cost of an appeal.
For non residents, these appeals are generally decided on the written material, making the preparation of evidence and submissions particularly important. An adviser should identify the exceptional features of the case, address any adverse character or immigration history, and explain how the public interest requirement can be met.
A section 61 request does not extend that deadline. Nor does a temporary visa granted under section 61 itself confer residence or guarantee a later Tribunal pathway. Any strategy involving temporary lawful status, a residence application and a possible appeal must be assessed separately.
A residence appeal is a different process, available where the statutory requirements for that appeal are met. It can challenge a residence decline and, where applicable, seek consideration of special circumstances warranting a recommendation to the Minister. It should not be confused with the exceptional humanitarian test governing deportation appeals. For a person already unlawful, access to any such pathway requires careful advice rather than an assumption that a new residence application can simply be lodged.
A request to a Minister is another possible avenue, but it is not an ordinary appeal from an INZ decision. The relevant legal power depends on the obstacle that needs to be overcome. Section 61 and special directions are distinct powers, even though both may form part of a request for exceptional intervention.
Special directions can address particular legal barriers or requirements. Decisions may be made by the Minister, an Associate Minister or an appropriately delegated official. A request addressed to a Minister therefore does not necessarily receive a personal ministerial decision. As with section 61, there is no entitlement to have a special direction request considered or to receive reasons.
An MP’s support can sometimes help bring a compelling case to ministerial attention. However, political access is not a substitute for a properly evidenced case. The request should explain what is exceptional, what INZ has already considered and what relevant information or circumstances are new.
Ministerial discretion also operates within a political environment. In December 2024, Associate Immigration Minister Chris Penk intervened after Candace Owens had been refused a visa, citing freedom of expression. Owens is a well known US podcaster who rose to prominence as a MAGA supporter and is widely associated with the hard right. She has also been criticised for promoting right wing conspiracy theories. In my view, the decision illustrates how political priorities can influence the exercise of ministerial discretion.
In my assessment, the current centre right coalition’s political outlook places personal responsibility at the forefront of immigration decision making. That makes it more likely to ask why the migrant failed to maintain a visa, and less likely to give decisive weight to the responsibility of the third parties whose conduct helped create the problem. This helps explain why a request framed mainly around being let down by someone else may struggle to attract ministerial intervention.
That approach can overlook the realities of migration. People rely on licensed advisers, lawyers, education agents, employers and schools to explain requirements, provide accurate information and honour commitments. A migrant may lose lawful status after an adviser misses a deadline, an employer withdraws promised work, or an education provider gives misleading guidance. Some have been exploited or have had little practical control over the circumstances leading to their visa problems.
Migrants do have responsibilities. But placing the consequences almost entirely on the individual can allow the failures of those other participants in the immigration system to fade from view. My concern is that the current government’s emphasis on personal responsibility makes it less receptive to this wider account of responsibility, even where there is compelling evidence that the migrant was seriously let down. A different government may bring a different political judgment to these requests, although that would not guarantee approval in any individual case.
For some people, particularly those with an identifiable residence pathway, leaving New Zealand voluntarily and applying from offshore may offer a more realistic solution. Advice should address the timing of departure, any deportation order or prohibition on return, and whether the proposed offshore application can actually meet the relevant requirements.
Previous overstaying does not automatically make every future residence application impossible. Equally, leaving does not erase immigration history. Character concerns, false or misleading information, convictions and any applicable exclusion provisions may still matter. Previous overstaying and breaches of conditions are also relevant when INZ assesses the genuine intentions of an applicant for a temporary visa.
The destination matters too. Travelling to a third country to await a New Zealand decision can create further problems if the person cannot lawfully remain there or return home. A departure strategy needs to include accommodation, lawful status overseas, family arrangements, likely processing time and a workable plan if the New Zealand application is declined.
I support a carefully designed regularisation programme for long term overstayers. People who have lived here for many years, raised families and become part of their communities deserve serious consideration. Labour’s 2023 election policy proposed a one off programme for people who had been here for more than ten years. That historical commitment should not be confused with an existing entitlement or a guarantee about what a future government will do.
A change of government could change the approach to regularisation and individual intervention. It cannot safely be assumed that an amnesty will follow, who would qualify or whether health, character and other requirements would be imposed. Remaining unlawfully in anticipation of an unannounced policy carries substantial risks, including deportation.
In my view, regularisation should also be accompanied by changes that reduce the creation of another population of long term overstayers. That means examining recruitment practices, employer dependence, exploitation, misleading advice and whether temporary migration settings provide realistic pathways for people whose work New Zealand continues to need. Border checks have a role, but so do the policies governing people after they arrive.
Good immigration advice should give a person a clear account of their available options, likely obstacles, costs and deadlines. Section 61 can be valuable where there is a persuasive special case. It should not become the default recommendation simply because an adviser has no better suggestion.
For some people, the strongest option will be a humanitarian appeal or a carefully supported request for discretion. For others, it will be voluntary departure followed by an offshore application. Each recommendation should be grounded in the person’s actual circumstances and a credible plan for resolving their status.
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