Immigration NZ recently got into hot water over picking up someone from the Pacific using a tactic which has infamously become known as a “dawn raid”. This involves an early morning swoop on an address to arrest and detain someone who has no visa, preparatory to shipping them out of the country. Officials insist that this practice is used sparingly.
Is an Amnesty Coming?
Whatever the truth of the matter, this story highlights an unresolved question about what to do about the fairly large number of people in the country at any given time who have no visa. Back in pandemic days a couple of years back, the Employers and Manufacturers Association called for an amnesty on overstayers to allow them to come out from the woodwork and legitimately fill chronic shortages in the job market. In March, the Minister did signal that the Government was “actively considering” an amnesty. The recent bad press might bring some more pressure to bear to make that happen. Those job shortages have not gone away despite the reopening of the border.
In my opinion, granting an amnesty is better than doing nothing. Immigration applies a hierarchy of priorities for whom to pursue for deportation. Overstayers who have no other adverse profile are well down the list behind criminal offenders and those released from prison. Unless someone is unlucky enough to get picked up at a random traffic stop, they can (and do) remain here undetected for many years, even decades. Many are working, and even paying tax which pays for public services to which they are not entitled. Do we just leave them and their families sitting around in limbo, fearing some knock at the door?
The argument against forgiving someone’s decision not to leave when they are supposed to, is that giving them a visa lets them jump the queue ahead of others from offshore who are applying in the regular manner. It encourages people to think that, if you go to ground for long enough, you might get lucky when the next amnesty comes along. That rationale wears a little thin if one remembers that the last amnesty scheme was opened well over 20 years ago.
So the answer to the question is: We don’t know when or if an amnesty is coming, but it is well overdue.
How big an issue is this? For the last couple of years, the figure of 14,000 overstayers has been bandied about. By its very nature, though, it is difficult to quantify those who, in jurisdictions like the US, are referred to as undocumented aliens.
What does it mean to be an overstayer? Someone without a visa is referred to in INZ records as unlawfully in New Zealand (UNLI). They are not called “illegal”, because not having a visa is not a crime. However, the Immigration Act allows Police to arrest, and INZ Compliance officials to detain, overstayers in preparation for deporting them. They can be held in prison under a Warrant of Commitment if time is required to book flights or (in some cases) to obtain travel documents to get them on the ‘plane.
What Can Overstayers Do?
Go Home Not the answer that people want to hear, but sometimes it is the best of a bad set of options. If someone without a visa leaves voluntarily, there is no ban upon them applying for a visa to return immediately. They need to have good grounds to apply, though. If someone has a strong offer of work using their skills, or is the long-term partner of a New Zealander (especially if they have had children together), we sometimes recommend that they book a flight with a view to applying for a visa in the usual way after they leave. They do face the “bona fides” hurdle – that is, are they going to overstay again, or breach the conditions of any visa that they get. If they have been here unlawfully for a long time, that is not a trivial obstacle.
Section 61 Request It is a “request” (not an application) for a visa by someone who is still in the country. There are no particular rules that Immigration has to apply when deciding these, as each case turns on its own facts. However, being able to show a potential pathway to Residence in the future — say, through employment or relationship with a partner – is something we look for as a key success factor. We do a lot of these, and James Turner of our office discusses Section 61s in his vlog. Sahar Shamia recently shared a Success Story where Residence was achieved after 14 years’ unlawful stay in the country.
One-Day Visa This is one option that we put forward to Immigration in a Section 61 request as an alternative, if they are not prepared to grant a standard temporary visa. The one-day visa gives the right to file a Humanitarian appeal to the Immigration & Protection Tribunal, and there are a number of successful cases on the IPT database where the right of appeal was gained by first getting the one-day visa.
Humanitarian appeals are hard to win because the first legal hurdle that the appellant has to cross is to show that deportation would result in “exceptional circumstances” on them or those close to them. However, here is just one example where we achieved Residence on appeal for long-term overstayers.
Go to the Minister Contrary to popular belief, this is not the first thing to try. It is in fact the last step, and should only be considered if all other options have been used up. In fact, if someone has not tried everything else, the Office of the Minister of Immigration will simply refuse to consider the request for help.
In deserving cases, the Minister (or a senior INZ manager with delegated authority) will come to the party. They can direct INZ to do almost anything, but they can also simply say No without giving any reasons for doing so. We win some of these, but not all.
Book an appointment if you know of someone who is stuck here unlawfully and does not know what to do.