It is frightening to be told that you could be deported. We can’t just make the fear go away, but we can give you a fighting chance of avoiding being thrown out of New Zealand. 

Laurent Law has had many years of experience dealing with a deportation crisis. Earlier this year, Sahar Shamia shared the story of saving a family from losing their Residence before they had to face an Appeal. We have represented a number of clients before the Immigration & Protection Tribunal (“IPT”) in what are usually called Humanitarian Appeals. In one case which I acted on in 2022, a Resident was found to have defrauded multiple people in a visa scam. He was allowed to stay because of the harm that his wife and children would suffer if he was forced to leave. 

People can also appeal “on the facts”, but it is the more common Humanitarian Appeals that I want to focus on here. How do they work? 

Filing a Humanitarian Appeal

There are many ways that people risk being deported. Some of the most common are: 

    • Being in NZ without a visa – an “overstayer”;
    • Visa holder being convicted of an offence in NZ;
    • Resident found to have given false information, or concealed something relevant, on their Residence application.

Once someone becomes liable for deportation, they only have a certain time to file an Appeal. For instance, an overstayer must put in their Appeal form within 42 days after their last visa expired. Temporary visa holders and Residents usually (but not always) have 28 days from getting a Deportation Liability Notice (which explains why they face being deported and which sets out their appeal rights). 

These timeframes are not long. People often come to us just before the deadline. To keep the right of appeal alive, all one has to do is to get the fairly basic Appeal form in to the IPT. It can be uploaded online quite quickly. There is really no excuse for missing the deadline nowadays, yet some other professional advisers have dropped the ball on this. The IPT has no power to extend the deadline, even if it wants to, so that it is very frustrating to them to see perfectly good cases come in which they are not allowed to touch. 

Legal Tests for Humanitarian Appeals

Putting in the form is only the start. The real work is to show why your case meets the criteria for deportation liability to be cancelled, which can be understood in this way: 

    1. You have exceptional circumstances of a humanitarian nature;
    2. That would make it unjust or unduly harsh for you to be deported; and
    3. It would not be contrary to the public interest to allow you to stay.

“Exceptional” is a high bar – it means something rare or unusual, well out of the normal run of human experience. What is often not appreciated is that the circumstances you rely upon must be about the consequences of being deported, and not simply something about you which is uncommon. For instance, being a star professional golf player does not cut it. Having an ageing parent who could die if you can’t be there to look after them just might, although even that on its own may not be sufficiently unusual to be seen as exceptional. 

Being deported is almost always going to be harsh. What makes it “unjust or unduly harsh”? It largely depends upon the seriousness of the reasons why someone faces deportation (like a criminal offence) when balanced against the harm that may result from deportation. As with the “exceptional circumstances” step, this can extend to the effects on family and others closely connected to the deportee. In some cases, it may be too harsh to send someone back to a country in a state of civil war or invasion. 

The final public interest question is about whether or not it would be harmful to NZ society or the State to allow someone to remain here. Was the crime, or the fraud against the immigration system, so bad that deportation should still go ahead, even if exceptional humanitarian grounds do exist? Sometimes we turn this around to propose that there is a positive public interest in someone staying – they may have a vital skill or role in their community which it would be a shame to lose. 

Where We Come In

To win a Humanitarian Appeal, an appellant must pass all three of these tests in order. You cannot fail any one of them, or the whole Appeal fails. 

Our job as professional advisers is twofold: 

    • To identify those parts of your story which are most useful to the Appeal. We often find that people are simply too close to their own situation to see the winning, key feature of their case;
    • To tell that story clearly, and shape our arguments, to make it clear why an Appeal meets the legal tests and should succeed.

In a case that is worth taking on appeal, there is usually some striking feature which sets it apart from others. The trick is to catch the attention of the Tribunal Member looking at the file so that it becomes “not just another file”. This is what we look out for, as part of our role to persuade the decisionmaker to see real merit in our client’s predicament. 

New Zealand Residents facing deportation also often get a live hearing. This is a kind of court appearance, although less formal. The proper preparation of briefs of evidence for witnesses, gathering evidence, and presenting arguments on the day, are a critical value-add from an experienced advocate. 

We encourage anyone facing deportation action, or soon likely to be up against it, to book a meeting with us as early as possible to talk about what to do.