I frequently get asked to write expert opinions for the NZ Courts about how a criminal conviction will harm someone’s visa status and their future prospects of staying in the country. Criminal lawyers ask me to do these for their clients, in the hope that the Court will decide to give them a discharge without conviction, so that they can avoid having a criminal record. I have done well over 100 of them, so I get to see a few common fact situations.
In some cases it is quite easy to show that getting (say) a drink drive conviction will have such serious results that the Court is persuaded to grant the discharge. For instance, a whole family’s Residence application could be put at risk because of one person’s mistake.
Deportation Processes
Another scenario is not so straightforward, but it is one I am seeing quite a lot. This is where someone is charged with a crime while they are on a temporary visa, such as a Work or Student Visa. On a first look it appears that even getting a discharge is not going to help them much. This is because Immigration can decide that they should be deported merely because of their “criminal offending”, not an actual conviction. To get a discharge without conviction, the defendant must admit that they did the crime. This means that the offending becomes a legal fact.
Immigration NZ can then act on this, and they often do within a couple of months of the Court’s decision (whether to convict and sentence, or to discharge). This timeframe is not set in stone, but it is fairly clear from reviewing decisions of the Immigration & Protection Tribunal over the last couple of years. INZ issues a Deportation Liability Notice (DLN) which tells people about their appeal rights. If they use up those rights of appeal, or they don’t use them at all, then INZ can deport them.
Right of Appeal
Some people facing this situation may have strong grounds for being allowed to stay. This may be because their partner and children are with them, the partner has a good job, and the family will be split up if one of them has to leave – or else they all have to give up their time in NZ. They just might get through on a deportation appeal to the IPT, although these appeals are hard to win, as I explain in an earlier blog.
Others may have circumstances that are simply not very compelling, especially if they are here on a Work Visa on their own. If they get a DLN, their appeal will most likely fail. Critically, If they don’t appeal at all, or their appeal is declined, and they then stay in the country too long afterwards, then even if they do finally fly home they will have “self-deported” themselves. That is, at law they are treated as having been deported even if they got on the plane voluntarily. If they held a temporary visa when they were served the DLN, they are banned from being granted any visa for 5 years after they depart. The only exception is if they ask the Minister to reduce or cancel the ban period through a Special Direction, which James Turner talks about in his vlog.
Because they are so important, I’ll set out the time limits within which someone served a DLN has to leave to avoid becoming automatically deported:
- If you file a deportation appeal – 28 days after the IPT issues its decision (assuming it is declined)
- If you don’t file an appeal, 28 days after you receive the DLN
Leave – to Return?
This is all very well, but isn’t the game pretty much over once you depart New Zealand like this? Well, maybe not quite.
If someone leaves before they become a deportee, they can apply to come back. If they were on a temporary visa, their liability for deportation ends. Obviously, the fact that they became liable in the first place is there on their record, but it cannot be used to decline an application on its own.
This is where getting a discharge without conviction is the difference-maker. If you get a conviction which carries a maximum potential sentence of 3 months prison or more, then you must get a Character Waiver (see our vlog) before any further temporary visa can be approved. That covers nearly all criminal offences, because it’s not the sentence you actually get that matters, but the sentence which the Court could give you.
On the other hand, if you get a discharge and you have no other criminal record, then Immigration NZ cannot require you to pass the Character Waiver test. They cannot take the discharge into account because it does not show up on your criminal record. They are simply not allowed to consider it. If you otherwise qualify for the visa you have applied for, you should get it.
This means that, although getting a discharge doesn’t help you stay in New Zealand, it can certainly help you get back in afterwards. This is a strategy which I have recommended in several opinions I have prepared, and it is supported by the visa system.
Getting a discharge from the Court requires you to show that the consequences of being convicted are out of