There are many privileges of being a New Zealand Resident Visa holder. There are also obligations that attach to this status which, for the most part, are easy enough to abide by. However, it has come to our attention recently that there have been several cases where applicants have lost their Resident Visa status and attempted to apply for Residence later under a different category. Many people may not be aware of this problem because a barring provision under the Immigration Instructions prevents them from securing Residence in a later application made with Immigration NZ (“INZ”).  

Ten appeals have been made to the Immigration and Protection Tribunal (“IPT”) since September 2020 because INZ declined their Residence applications on this ground. Therefore, this is a good time to discuss this issue and remind people of the importance of maintaining their Resident Visa status.

Securing Residence

There are two stages to securing Residence in New Zealand.

1. A Resident Visa allows you to live in New Zealand indefinitely with travel conditions valid for two years. The travel conditions allow you to leave New Zealand and return within the validity of your two-year travel conditions.
2.  A permanent Resident Visa does not expire. It allows you to live in New Zealand indefinitely. You can also leave and return to New Zealand at any time.

When the travel conditions expire, a Resident Visa holder can apply for a permanent Resident Visa which is a truly indefinite visa with no Travel Conditions. To do so, the Resident Visa holder must be able to demonstrate a commitment to New Zealand by having:

• spent a significant period of time in New Zealand; or
• acquired tax Residence status in New Zealand; or
• invested in New Zealand; or
• established a business in New Zealand; or
• established a “base” in New Zealand.

A person who is overseas and has let their travel conditions expire loses their Resident Visa because they have failed to return to New Zealand and failed to meet the requirements to secure a permanent Resident Visa. As result, they can no longer enter New Zealand as a Resident Visa holder.

What happens if you have failed to maintain your Resident Visa?

As mentioned earlier, ten appeals were made to the IPT since September 2020 for applications made by applicants who have previously held a Resident visa, lost it and applied for Residence under a different category.

The common scenario is, for example, where a husband arrived in New Zealand with their family years ago, and they all secured Resident Visas. However, for various reasons, the husband returns home or to another country for work or family commitments. The husband fails to return to New Zealand and spend the required time. His travel conditions have expired, and as a result, he has lost his Residence status. On the other hand, the husband’s family (i.e. wife and children) remained in New Zealand, maintained their Resident Visas, and in some instances became New Zealand citizens and are well settled in New Zealand.

Years later, the husband decides to return to New Zealand so he can reunite with his family. He files a Residence application under the family partnership category. The partnership application is supported by his wife, who originally obtained Residence as a secondary applicant in her husband’s original Residence application.

INZ will have to decline the Residence application because it was based on his relationship with his New Zealand citizen wife, who had originally obtained Residence as his partner in his previous Residence application. Immigration Instruction R5.35 mandated that his Residence application should not be approved. Immigration Instruction R5.35 provides:

R5.35 Later application under any residence category by previous applicants
An applicant for a residence class visa in New Zealand must not be approved
under those instructions if their application is based on their relationship to a
New Zealand permanent resident, resident or citizen who originally obtained a
residence class visa as the partner or dependent child(ren) of the applicant or the
applicant’s partner.

INZ Operational Manual

When a Residence application is declined, the applicant has a right of appeal to the IPT. An applicant can appeal the decision to the IPT because the decision is incorrect and / or there are special circumstances that warrant consideration by the Minister of Immigration to grant Residence as an exception.

INZ cannot approve his application as per R5.35 of the immigration instructions, and it has no discretion to grant an exception to these instructions under Section 72 of the Immigration Act 2009. Therefore, this would leave the IPT to consider such an appeal on the special circumstances ground. The Court of Appeal in Rajan v Minister of Immigration [2004] NZAR 615 (CA) at [24] per Glazebrook J defined special circumstances as “circumstances that are uncommon, not commonplace, out of the ordinary, abnormal“. 

In three out of ten appeals, the IPT found that the case had special circumstances that warranted the grant of Residence as an exception. This indicates the IPT’s strong stance against finding special circumstances in such cases. This is because the purpose of instruction R5.35 is to prevent an applicant from obtaining the right to live in New Zealand whilst not settling here, even though his or her spouse and/or children do. It aims to stop the potential abuse that arises when a person, whose Residence application is approved, continues to live predominantly overseas and resides in New Zealand only when it suits him or her. In some instances, the IPT can conclude that the person may enter New Zealand on a Visitor Visa and that there is no real need to secure a Resident Visa.

Therefore, it is important that you know and understand the conditions of your Resident Visa. Your goal should not only be to secure Residence in New Zealand but to maintain it. If you are unable to do so you should seek legal advice on the conditions of your visa. If you don’t do enough to keep your Residence alive, it can be lost.

How can we help?

• We can secure a variation of travel conditions on your Resident Visa before it lapses.
• We can assist with securing a Second or Subsequent Resident Visa if you are eligible for it.
• We can assess your eligibility under another category where you are not caught by R5.35 of the immigration instructions.
• We can also manage appeals with the IPT on the special circumstances ground depending on your circumstances. It is recommended that you seek professional help to make a case on special circumstances with the IPT. We have experience with this sort of appeals and the type of documents that can support and add merit to your case.

If you or someone you know needs assistance with Residence, feel free to contact us.