The detailed rules that Immigration Officers must apply to decide New Zealand Visa applications are found in the Immigration New Zealand Operational Manual. These are called “Immigration Instructions”. As Immigration Lawyers it is our knowledge of these detailed Immigration Instructions which allows us to provide advice and guide clients in relation to their Visa applications.
Based on our knowledge of the Immigration Instructions, we may tell a client that either they should or should not proceed with filing a Visa application. A good level of skill in reading, interpreting and applying Immigration Instructions to the various situations we are presented with by clients is critical to our success.
Usually, if the detailed requirements of Immigration Instructions for a particular Visa application are not met, our advice is that the application will be declined.
However if your application seems doomed to failure and all hope is lost – don’t give up just yet! Our message in this Blog is that there is some ability for Immigration Officers to make an exception to Immigration Instructions – shortened as, an “exception to Instructions” . This is despite Instructions indicating that the Visa must be declined.
So what is an exception to Instructions?
An exception to Instructions is granted when an Immigration Officer makes an exception to the usual requirements for a Visa and approves a Visa. Without the exception to Instructions, the Visa application would be declined. Securing the grant of a Visa as an exception can be a very valuable outcome.
It is important to note that INZ has no discretion to consider an Exception to Residence Instructions (Instructions which apply to applications for Residence Visas). However, in our experience INZ can and does consider, then approve a Temporary Visa by way of exception to Temporary Visa Instructions (Instructions which apply to applications for Temporary Visas).
Immigration Instruction E7.10(b) states;
If an application fails to meet the requirements of temporary entry instructions, officers must then consider all the circumstances of the application to see if an exception to temporary entry instructions is justified, taking into account the objectives of temporary entry instructions and the situation and purpose of the applicant.
In deciding whether to grant an exception, an Immigration Officer must consider all the circumstances, taking into account;
- The objective of temporary entry instructions (every Temporary Visa category has an objective).
- The situation and purpose of the applicant.
It is also relevant to note that some Temporary Visa Instructions are “restricted”. An Immigration Officer does not have the ability to make an exception to these. An example of restricted Temporary Visa Instructions are the detailed Instructions regarding critical purpose Visitor Visas, which have been available while the NZ border has been closed owing to Covid-19. However, it does appear that the Minister of Immigration may be able to grant an exception to restricted Temporary Visa Instructions – see s 76 Immigration Act 2009.
At Laurent Law we can help clients prepare their case for the grant of a Visa as an exception to instructions.
Recent success story
Recently at Laurent Law we were approached by a client who had exceeded the maximum stay allowed in New Zealand on a Visitor Visa. Usually, visitors to New Zealand can stay for a maximum of 9 months, within the last 18 months. This means that if a visitor stays in New Zealand for 9 months, they must remain outside New Zealand for a further 9 months before they can come back.
The client we met with asked if we could assist to secure a Visitor Visa to be in New Zealand for a further 4 months beyond the 9 month visit they had already made.
Our answer was that this could only be secured by way of an exception to Instructions.
The first thing to note is that the grant of an exception to instructions is not at all certain. In many cases an exception to instructions is not justified. Some strong reasons need to be put forward in favour of the exception to Instructions.
In our client’s case, he wanted to remain in New Zealand for longer because his daughter (a New Zealand citizen) was pregnant and due to give birth soon. The client’s daughter needed her father for help and support during the pregnancy, because her brother-in-law recently had an accident, her husband did not speak good English and there was no other family member that could assist. Our client provided evidence that he would in fact depart New Zealand, by way of a return flight itinerary.
The Visitor Visa was approved, as an exception to Instructions, for 4 months as requested.
In our view, this was a relatively compelling case for the approval of a further Visitor Visa as an exception. The period of further stay was relatively short, defined, and the client gave an assurance that he would depart in due course. If the client had asked for a further stay longer than 4 months, for example 12 months, this may not have been possible.
Some other situations requiring an exception to Instructions may not be as simple.
At the moment we are assisting a client who is asking for the approval of a Partnership Work Visa as an exception to Instructions, because he does not meet health requirements owing to suffering a medical issue requiring expensive treatment. In this case, INZ may or may not be willing to approve the Work Visa as an exception, given the cost of the required medical treatment.
However, the client has lived in New Zealand for more than 10 years and has been gainfully employed during that time, meaning he has made a strong commitment and contribution to New Zealand. He also has a partner in New Zealand who has a pathway to Residence. It may be reasonable for INZ to return the commitment in allowing the client to stay and receive medical treatment, even though it is expensive. We will see what the outcome is within the next month or two.
Please feel welcome to contact us if you need help with a Visa application, or if you think you may require an exception to Instructions. We can help.