Unlawful children and their right to attend school

There are various reasons why parents or caregivers cannot renew their visas. As a result, they have become unlawful in New Zealand, and their children become unlawful as well.

We have come across situations where parents’ visas have expired because they are unable to renew their visas. They are then approached by the child’s school, requesting evidence that the child has a student visa; otherwise, the school cannot proceed with the enrollment registration for the child.

If you received a letter from your child’s school requesting evidence of their immigration status or visa renewals and you do not have this, then don’t worry. Your child, despite their or your immigration status, may still be able to attend school as a domestic student.

Access to education is every child’s fundamental right. Articles 28 and 29 of the United Nations Convention on the Rights of the Child (UNCROC) states that all children and young people “have the right to a good quality education that helps you develop your personality, talents and abilities to the full”.

New Zealand requirements

Unless you are a New Zealand citizen or resident, you will likely need a Student Visa to study in New Zealand. Some students are deemed domestic students, and others are fee-paying students. 

The term “domestic student” applies to some dependent children of temporary visa holders. Such children can attend primary or high schools.  

However, students who are unlawfully in New Zealand can still apply to study as a domestic student.

Section 3 of the Education Act 1989 provides for the right to free primary and secondary education from age 5-19.

Therefore, if your child is between the ages 5-19 years, they may apply to study as a domestic student despite the parents or caregiver’s unlawful status.

Criteria to be approved domestic Student Visa

The criteria to be eligible for a domestic student visa are very specific. The child will be eligible under one of two categories:

1. If the child arrived in New Zealand on or before 23 August 2013:
   1. They are aged 5 to 19 years old;
   2. They are unlawfully in New Zealand, they do not hold a visa to be here;
   3. They have been living continuously in New Zealand with a parent or legal guardian for over six months;
   4. have never enrolled in a New Zealand school or has most recently been enrolled as a domestic student. 
2. If the child arrived in New Zealand after 23 August 2013:
   1. They are aged 5 -19 years old;
   1. The child is unlawfully living in New Zealand, and
   2. The child and a parent/legal guardian have been living together in New Zealand continuously for over six months (note that extended family members are excluded), and
   3. Either the child hasn’t enrolled in a New Zealand school, or private training establishment or the child’s most recent enrollment was as a domestic student, and
   4. The child’s last visa was not one of the following:
      1. a student visa – unless the child’s last student visa issued under the Immigration Act 2009 and most recent enrollment at a registered school was as a domestic student.
      2. an interim visa with study conditions
      3. a visitor visa
      4. a limited purpose permit under the Immigration Act 1987
      5. a limited visa under the Immigration Act 2009

What to do if your child is unlawful and fits under one of the above categories:

Students living unlawfully in New Zealand can apply to the Ministry of Education (MOE) to be a domestic student. There is an application form that can be found on their website and can be download from this link. The parent or the caregiver of the child will need to complete the form. The school can help parents and caregivers complete the form. Parents can also visit the local MOE office. A list of MOE offices can be found here.

Once completed, you will need to submit the application to the MOE, either by giving it to the school who will send it to the Ministry, or by sending it to your local MOE office. The Ministry will then send a letter advising the parents or the caregivers whether they have been successful or not. According to their website, this process usually takes four weeks. 

Application outcome

If the application is approved, you must enroll your child to attend school and follow all the standard school rules for attendance. The approval will be valid for the duration given on the MOE approval letter, or until the child leaves New Zealand, or on 1 January of the year after the child turns 19 years old. 

If the application is declined, your child will need to enrol as a fee-paying international student at the school. 

Therefore, when your child’s student visa is about to expire, you must apply for a new student visa before they become unlawful in New Zealand. If you are unable to renew the visa, and your child becomes unlawful in New Zealand, do not let your child be deprived of their right to education. We suggest that parents and caregivers visit www.education.govt.nz to see if your child qualifies for a domestic Student visa.