In any application for a NZ Resident Visa, everyone has to follow the rules. The visa applicant has to do it. So do visa officers. They are not allowed to make exceptions outside of Government Residence Instructions. While this creates obstacles to getting an approval, for some people it also opens up opportunities.
What is an Out of Policy Application?
Sometimes we file an application for Residence, knowing that it is going to fail. We put the case in and flag this for Immigration New Zealand, and we ask them to decline it as soon as they can. INZ is well aware of this, and will often cooperate to get the case off their desk. The reason is that the decline allows an appeal to the Immigration & Protection Tribunal.
One of the Tribunal’s functions under the Immigration Act 2009 is to consider whether the person has “special circumstances”. If it decides that they do, it will recommend to the Minister of Immigration that Residence be granted even though the appellant does not normally qualify. The Minister usually – but not always – follows the IPT’s advice.
So, what are Special Circumstances?
It is hard to pin down what makes for a special case. The description that is often quoted is ““circumstances that are uncommon, not commonplace, out of the ordinary, abnormal” (Rajan v Minister of Immigration [2004] NZAR 615 (CA)). Obviously that is pretty broad, and it will depend on the particular facts which each person brings to the table. It can boil down to “you know it when you see it”.
Another suggested way to look at it is that someone needs to have a situation which stands out so much that an exception is justified. It could be a striking feature of their story, or combination of features, which catches someone’s attention in a striking way.
Examples
There are many scenarios which can make a good candidate for an out of policy application leading to an appeal:
- The whole family qualifies for Skilled Migrant Residence, except for one child who has severe developmental delay and needs full-time care, so cannot be considered for a Medical Waiver.
- A New Zealander can’t sponsor their partner because they have previously been part of 2 previous Residence applications involving a former partner – even though those prior relationships ended decades ago. See for instance KZ (Partnership) [2021] NZIPT 206285 in which we succeeded in gaining Residence for someone in that position.
- An applicant for Skilled Migrant Residence turns 56 (above the maximum age) days before they accumulate enough years of NZ work experience to earn sufficient points to qualify, in a highly specialised and sought-after job.
- A Dependent Child Residence application cannot be approved because the applicant is too old to be classed as a dependent child, but they are the last family member left in their home country.
Most of these types of applications must be filed online, so that in some cases an anomaly – such as being too old – means that the application cannot be submitted electronically at all. A way around this is to prepare a hard copy application and send it in the old-school way, by post.
Call to Action
The use of the “special circumstances” jurisdiction of the IPT is no guarantee of success. It relies on persuading a Member of the Tribunal that the appellant’s case is compelling, that there is something really distinctive about their history or their present predicament that will make the decisionmaker take notice.
At Laurent Law, we are called upon to do this regularly. We can usually identify at a first meeting whether an out of policy application and appeal are worth pursuing. Contact us if you, or someone you know, appears to have no way to go for Residence. There may be another option to explore.