A Guide to Character Waiver in New Zealand

Applicants for a New Zealand visa must demonstrate they are of good character. This is normally demonstrated by providing a police certificate from their country of citizenship and potentially from other countries where they have lived or visited within a certain time period (the requirements for this differ slightly between temporary and residence visa applications).

People who have been convicted of serious crimes and have been imprisoned or those who have been removed or deported from New Zealand or another country may not be eligible to apply for a visa to New Zealand (because they engage Section 15 of the Immigration Act 2009). Those people may need to approach the Minister of Immigration to request a “special direction”.

However, other applicants who do not meet Immigration New Zealand’s good character requirements (but who do not engage Section 15 of the Act) may still apply for a visa and request that Immigration New Zealand waives the good character requirement in their case. This is known as a “character waiver”. The effect of a character waiver is to allow the applicant’s application to continue to be processed and a visa to be granted (assuming the applicant meets all other requirements).

Additionally, supporting partners in partnership-based visa applications will not meet INZ’s good character requirements and will require a character waiver (in order to be able to support their partner’s application) if they have been convicted of any offence involving family violence or of a sexual nature, whether in New Zealand or overseas.

How is a Character Waiver assessed?

Immigration officers must take into account the “surrounding circumstances” when considering whether or not to grant a character waiver. The specific factors that an immigration officer should take into account will depend on the reason(s) why the applicant does not meet the good character requirements, the type of application being applied for (temporary vs residence), and whether it’s the applicant or the supporting partner who requires the character waiver. 

For example, for temporary visa applications, the immigration officer must consider whether the following factors are compelling enough to justify the grant of a character waiver:

• the applicant’s reason for travelling to, or remaining in, New Zealand; and

• any surrounding circumstances; and

• the public interest.

For residence visa applicants, the surrounding circumstances that an immigration officer must consider include, but are not limited to, the following factors, as appropriate:

• if applicable, the seriousness of the criminal offence or offences (generally indicated by the term(s) of imprisonment or size of the fine(s));

• whether there is more than one criminal offence or more than one of the other excluding character matters applies(e.g. providing false/misleading information in a visa application);

• how long ago the relevant event or events occurred;

• whether the applicant has any immediate family lawfully and permanently in New Zealand;

• the extent of the applicant’s other connections to New Zealand;

• whether the applicant's potential contribution to New Zealand will be significant.

Where the reason for the applicant not meeting good character requirements is due to them or their agent providing false or misleading information or concealing relevant information in their application or another person’s application (or expression of interest / EOI for a visa) the immigration officer must consider:

• the significance of the false or misleading information provided, or the information withheld, with respect to the outcome of the application or EOI; and

• the nature and extent of the applicant’s intentions and involvement in the provision of the false, misleading or forged information, or in the withholding of relevant information; and

• the extent to which the applicant exercised reasonable diligence in ensuring that INZ was provided with complete and accurate information; and

• whether Article 31 of the Convention Relating to the Status of Refugees applies.

Immigration officers are required to record their consideration of the surrounding circumstances, noting all factors taken into account, and the reasons for their decision to grant or not grant a character waiver.

When Do You Need a Character Waiver?

A visa applicant will require a character if they have been convicted:

• at any time they have been convicted of any offence against the immigration, citizenship or passport laws of any country; any offence involving prohibited drugs; any offence involving dishonesty; any offence of a sexual nature; any offence for which they were sentenced to a term of imprisonment; or any offence involving violence;

• (whether in New Zealand or not) of an offence committed at any time when the applicant was in New Zealand unlawfully or was the holder of a temporary entry class visa or held a temporary permit under the Immigration Act 1987 or was exempt under that Act from the requirement to hold a permit, being an offence for which the court has power to impose imprisonment for a term of three months or more (this includes, but is not limited to, potential sentences "not exceeding three months" or "up to and including three months"); or

• at any time in the five years prior to the date the application is made, or convicted while the application is being processed, of an offence (including a traffic offence), involving dangerous driving, driving having consumed excessive alcohol (including drunk driving and driving with a blood or breath alcohol content in excess of a specified limit) or driving having consumed drugs.

Note that a conviction ‘at any time’ includes one that occurs up to the date of the final decision (R5.60) of the application, and that a ‘sentence to a term of imprisonment’ includes cases where the sentence was of immediate effect, was deferred or was suspended in whole or in part, or where the sentence is a ‘fine or in default’ term of imprisonment.

Drink driving convictions are the most common reason for an applicant failing to meet character requirements and requiring a character waiver, especially since even a low-level drink drive conviction gives the court the power to impose imprisonment for a term of three months or more (which means that even if the person only receives a fine and license suspension, they won’t meet INZ’s good character requirements).

Another example of where a character waiver is required is where INZ determines that the applicant - whether themselves or through their agent, and whether in their application or the application of another person - provided false or misleading information to INZ or concealed/withheld relevant information from INZ.

As mentioned above, supporting partners in partnership-based visa applications will also require a character waiver (in order to be able to support their partner’s application) if they have been convicted of any offence involving family violence or of a sexual nature, whether in New Zealand or overseas.

As also mentioned above, people with convictions for more serious offences and character issues which engage section 15 of the Immigration Act 2009 are not eligible to apply for a visa. This includes, for example, any person who:

• at any time has been convicted of an offence for which the person has been sentenced to imprisonment for a term of 5 years or more, or for an indeterminate period capable of running for 5 years or more; or

• at any time in the preceding 10 years has been convicted of an offence for which the person has been sentenced to imprisonment for a term of 12 months or more, or for an indeterminate period capable of running for 12 months or more; or

• is subject to a period of prohibition on entry to New Zealand; or

• at any time  has been removed or deported from New Zealand under any enactment; or

• is excluded from New Zealand under any enactment; or

• has, at any time, been removed, excluded, or deported from another country.

A person who engages Section 15 or Section 61 may lodge a Special Direction request with the Immigration Minister.

The Character Waiver Assessment Process:

Receiving a Potentially Prejudicial Information (PPI) Letter

Previously, if an immigration officer identified a character concern, they would issue two letters – the first letter would notify the applicant that they (or their supporting partner) may not meet INZ’s good character requirements and invite comment; the second would invite the applicant to provide submissions in support of a character waiver request (the officer having considered any comments and evidence provided, and concluding the person does not meet the good character requirements). 

This two-stage process was especially beneficial where there was a good argument that the person DID meet the good character requirements – for example, because they disputed INZ’s allegations of false/misleading information or concealment of information, and could produce evidence to demonstrate this.

However, recently, INZ notified the immigration industry that they had “refreshed” their character waiver process for all character issues, and that going forward, immigration officers would send only one “Potentially Prejudicial Information” letter asking for comment on the character issue and inviting the applicant to provide reasons why a character waiver should be granted, instead of sending two separate letters. 

This merging of the previous two-stage / two letter process into a single stage and letter has, unfortunately, meant that many visa applicants are now required to go to the trouble (often at significant cost) of providing full submissions and evidence in support of a character waiver, even though they may also be arguing as part of that same response that they do not engage the character provisions of Immigration Instructions (e.g. because they did not provide false or misleading information).

Providing Your Response and Evidence / Strengthening Your Character Waiver Request

The key to a successful character waiver request is a combination of compelling written submissions (ideally prepared by a skilled Immigration Lawyer) and robust supporting evidence, which addresses each of the various factors that the immigration officer must consider in their assessment. The submissions and evidence should cover a wide range of factors (and not necessarily only those listed above, which appear in INZ’s operational manual), including, for example, any humanitarian factors or practical matters that may be relevant.

Where the character issue relates to a criminal conviction or where it is accepted by the applicant that false/misleading information was provided (or relevant information was concealed), this should be acknowledged by the applicant and they should NOT, for example, attempt to minimise, deflect responsibility for or re-litigate the matter. This is where having an immigration lawyer can really add value, since they can effectively provide a kind of “voice of reason”, by firstly acknowledging the character concern but also pointing out to the Immigration Officer any relevant mitigating factors (e.g. the relative lack of seriousness of the offending and/or redeeming steps taken since the offending, or the inconsequentiality of the false/misleading information). An applicant’s attempts to do this on their own behalf might be misconstrued by the immigration officer as an attempt to downplay or trivialise their actions.

Potential Outcomes of your Character Waiver Request

Applicants won’t normally be provided with written confirmation by INZ that their character waiver has been granted. Instead, if the immigration officer grants the waiver and is satisfied that the applicant meets all other visa requirements, the applicant will simply be notified of visa approval. 

If the visa application is declined, however, the INZ decline letter should stipulate the reasons why, which may include that a character waiver was not granted and/or any other grounds upon which INZ assessed the applicant did not meet the requirements.

Note also that the grant of a character waiver in that visa application does not automatically mean that a waiver will be granted in any subsequent visa application. If the applicant still doesn’t meet character requirements in any subsequent application, they will need to resubmit full submissions and evidence in support of a character waiver for that application.

If the application is declined, potentially the applicant may have a right of appeal to the Immigration & Protection Tribunal (IPT).

Why Professional Legal Assistance Matters?

The importance of submitting a strong character waiver request cannot be overstated. Not only might a declined visa application have catastrophic implications for a person’s ability to travel to or remain in New Zealand, but it might also have knock-on effects, including for future visa applications to other countries.

Given the importance of presenting a strong character waiver request and the complexities often involved in its preparation, I would always strongly recommend seeking professional assistance from an immigration lawyer.

An immigration lawyer will, of course, ensure that all information and documentation are accurate and submitted in a timely manner. But more importantly, a good immigration lawyer will help to identify the “theory of your case” – i.e. the core argument or theme of the case, and the lens through which you want the immigration officer to understand all the evidence and issues. This is a critically important step, since most of the supporting evidence for the character waiver request will then be focused on that core argument or theme.