Deportation Lawyer Auckland

Facing deportation from New Zealand? Need help with your appeal?

As a NZ immigration expert specialising in complex situations, I can help

Are you liable for deportation?

There are numerous ways that a person may become liable for deportation from New Zealand, which, depending on their visa status, could include:

  • Becoming unlawful (i.e. no longer holding a valid visa);

  • Breaching the conditions of their visa, failing to meet visa conditions or no longer meeting the rules or criteria under which the visa was granted;

  • Criminal offending (e.g. drink driving);

  • Providing fraudulent, forged, false or misleading information, or concealing relevant information in support of a visa application;

  • Other matters relating to character.

While some events, such as becoming unlawful or being convicted of a certain offence, trigger deportation liability automatically, others will result in deportation liability only upon the determination of the Immigration Minister or their delegate (e.g. a determination that false or misleading information was provided in support of a previous visa application).

In most cases, a person liable for deportation will first be issued with a Deportation Liability Notice or “DLN” by Immigration New Zealand, before they can be issued with a Deportation Order and steps can be taken to deport them. However, there are exceptions to this, such as people in New Zealand unlawfully who are out of time for lodging an appeal against deportation with the Immigration & Protection Tribunal - these people may be served with a Deportation Order at any time.

For Residence Visa holders, Immigration New Zealand’s current practice is to afford them the opportunity to give reasons why they should not be deported, prior to serving a DLN. In these situations, Immigration New Zealand will issue a letter notifying the person of the reason why they may be liable for deportation and inviting a response and the completion of a standard questionnaire (known as “Deportation Liability Questionnaire”). Depending on the response, it might be possible to convince the Immigration Minister or their delegate to either suspend (for between 2 to 5 years) or, in some cases, cancel deportation liability.

One of the most common ways for a person to become liable for deportation is through a drink drive conviction. For resident visa holders, the immigration rules are especially harsh. If you are convicted of an offence where the court has the power to imprison you for 3 months or more (regardless of whether you are actually sentenced to a term of imprisonment), and the offending took place within 2 years of the grant of your residence visa, you can be served with a Deportation Liability Notice.

How can you challenge your deportation?

Depending on your visa status and circumstances, there are a number of ways it may be possible to challenge your deportation, including:

  1. Persuading Immigration New Zealand that you are not liable for deportation (i.e. arguing there is no factual basis for determining you are liable for deportation);

  2. If you are a Residence Visa holder, by convincing the Immigration Minister or their delegate (in your response to the Deportation Liability Questionnaire) to suspend or cancel your deportation liability;

  3. If you are a Residence Visa holder issued with a DLN, by lodging an appeal with the Immigration & Protection Tribunal (IPT) against deportation:

    • “on the facts” (e.g. if it can be argued there is no factual basis for Immigration New Zealand’s assessment, you are liable for deportation); and/or

    • Pursuant to section 206 of the Immigration Act 2009 and on the grounds that exceptional humanitarian circumstances exist that would make it unjust or unduly harsh for you to be deported, and it would not in all the circumstances be contrary to the public interest to allow you to remain in New Zealand (known as a “humanitarian appeal”).

  4. If you are a Temporary Visa holder issued with a DLN, by:

    • Providing “good reason” to Immigration New Zealand as to why you should not be deported;

    • Lodging a humanitarian appeal against deportation with the IPT.

If facing a criminal charge, it may be worth considering an application to the court for a discharge without conviction pursuant to section 106 of the Sentencing Act 2002, if it can be shown the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. If granted a discharge without conviction, it is deemed an acquittal and therefore avoids any deportation liability arising.

It's important to highlight again that whether any of the above options are available to you (or advisable) will depend on a number of factors including your visa status and time lapsed, and I would strongly recommend seeking legal advice from an immigration lawyer before proceeding.

Appealing against deportation

Residents Visa holders whose deportation liability arises due to a conviction, Temporary Visa holders who become liable for deportation, and people who become unlawful may appeal to the IPT against deportation on humanitarian grounds only (assuming they are not out of time for lodging such an appeal).

Resident Visa holders whose deportation liability arises for reasons other than a conviction may appeal to the IPT against deportation both “on the facts” and on humanitarian grounds.

To be successful in a humanitarian appeal, you must show there exist “exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh” for you to be deported from New Zealand and “it would not in all the circumstances be contrary to the public interest” to allow you to remain in New Zealand”. It is a high threshold and the New Zealand courts have stated that the circumstances “must be well outside the normal run of circumstances” and “truly an exception rather than the rule” (Ye v Minister of Immigration [2009] NZSC 76).

The factors that usually lead to successful appeals are the interests of the appellant’s family, or potentially a particularly challenging situation in the appellant’s home country (e.g. Syria, Somalia or Yemen), or serious health issues that cannot be addressed in their home country (as in some Pacific Islands).

In summary, IPT appeals are complex, and the test threshold for humanitarian appeals is high, and I would strongly recommend seeking legal representation from an immigration lawyer if you’re considering lodging an IPT appeal.

How can I help you?

There are a number of ways I can assist, depending on your circumstances and visa status, including:

  • Affidavits in support of court applications for a discharge without conviction – Where you are charged with a criminal offence, I can prepare for your criminal barrister an affidavit to be presented to the court in support of your application for a section 106 discharge without conviction, which sets out the immigration consequences of a conviction for you and your family.

  • Responding to Deportation Liability Questionnaires – I can represent you in your response to Immigration New Zealand’s initial Deportation Liability Questionnaire, including advising on the best forms of evidence to provide in support of your response and preparing detailed submissions in support of your response, all for the purposes of increasing your chances of either avoiding deportation liability or having your deportation liability suspended or cancelled.

  • Responding to DLNs – If you are issued with a DLN, I can represent you in your response to Immigration New Zealand in showing “good reasons” exist as to why your deportation should not proceed. This includes advising on the best forms of evidence to provide in support of your response and preparing detailed submissions in support of your response.

  • IPT appeals against deportation – Drawing on my extensive knowledge and experience in character and deportation liability matters, I can represent you in your appeal to the IPT against deportation. This includes in depth and targeted advice on the broad range of evidence that should be gathered for your appeal, briefing any expert witnesses (e.g. psychologists, social workers, probation officers, and other legal specialists such as family lawyers) in the preparation of their written opinions for the IPT, reviewing and advising on all the evidence, and preparing highly detailed and persuasive submission to the IPT in support of your appeal.

I’m more than happy to chat about assisting you.

Why Choose James McLeod As Your Immigration Lawyer?

For nearly a decade, I have represented clients in a range of complex NZ immigration matters – whether they relate to character or health issues, reconsiderations or appeals to the IPT of declined visa applications, appeals to the IPT against deportation, or requests to Immigration New Zealand or the Immigration Minister to exercise their discretion and grant a visa.

My experience is such that clients are often referred to me by other immigration advisers when cases become especially complex.

Every client and case is different, and while some clients have both the will and means to “fight to the very end”, others do not. This can be for a variety of reasons, including stress, financial pressures, and low chances of success.

That’s why, before representing you in any response to Immigration New Zealand or appeal to the IPT, I will carefully assess the merits of your case and provide you with a frank and honest view of your chances of success and what it will involve (including the likely costs), as well as any other potential options that might be available to you, so you can make a fully informed decision about whether or not you wish to proceed.

I’m more than happy to have a chat about your situation.

I’m more than happy to chat about assisting you.