Deportation Liability Notice

A “Deportation Liability Notice” (or “DLN”) is what Immigration New Zealand (INZ) serves on people who are or may become 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 – will trigger deportation liability automatically, others result in deportation liability only upon a determination by the Immigration Minister or their delegate. For example, where Immigration New Zealand is of the view that a person has concealed relevant information in support of a previous visa application, they will normally write to the individual first to give them a chance to comment, explain or provide further information before making a final determination.

If you receive any kind of communication from Immigration New Zealand relating to deportation, this is very serious and you should seek professional advice from an immigration lawyer immediately. 

What Is a Deportation Liability Notice?

Immigration New Zealand’s powers to issue a DLN are set out in section 170 of the Immigration Act 2009, which provides that “a deportation liability notice must be served on a person liable for deportation if it is intended to execute the deportation of the person”.

A DLN is usually the first step in the process before Immigration New Zealand can issue a “Deportation Order” and take steps to deport the person. The main exception to this is people who are in New Zealand unlawfully (pursuant to section 170), as these people may be served with a Deportation Order at any time.

For Residence Visa holders, there is usually an additional preliminary step before the issue of a DLN, whereby Immigration New Zealand will 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 and 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 and 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 offence took place within 2 years of the grant of your residence visa, you can be served with a Deportation Liability Notice.

Legal Grounds for Deportation in New Zealand

The various legal grounds upon which a person may be liable for deportation are set out at sections 154 to 163 of the Immigration Act 2009, and include the following:

• Deportation liability if the person is unlawfully in New Zealand (section 154)

• Deportation liability if a visa was granted to a person as a result of an administrative error (section 155)

• Deportation liability for false identity (section 156)

• Deportation liability for a temporary visa holder for “cause” (section 157), which includes:

  • breach of the conditions of the person’s visa

  • criminal offending (irrespective of whether a conviction is entered, and therefore includes where a person receives a discharge without conviction)

  • other matters relating to character

  • concealing relevant information in relation to the person’s application for a visa

  • a situation where the person’s circumstances no longer meet the rules or criteria under which the visa was granted (e.g. they hold a partnership-based temporary visa but are no longer in the partnership).

• Deportation liability for a residence visa holder for fraud, forgery, etc (section 158) – if the minister determines, OR the person is convicted of an offence where it is established that any of the information provided in relation to the person’s application for residence was fraudulent, forged, false, or misleading, or any relevant information was concealed

• Deportation liability of resident if visa conditions breached (section 159) – a resident visa holder is liable for deportation if the Minister determines that the conditions of his or her visa have not been met, or the resident has materially breached the conditions of his or her visa.

• Deportation liability of residence class visa holder if new information as to character becomes available (section 160) - A residence class visa holder is liable for deportation if, not later than 5 years after the date the person first held a residence class visa, new information becomes available that relates to the character of the person; and the information was relevant at the time the visa was granted; and the Minister determines that the person would not have been eligible for the grant of the visa under this Act or immigration instructions if that information had been available at the time the visa was granted.

• Deportation liability of residence class visa holder convicted of criminal offence (section 161) – One of the more common reasons for a resident visa holder becoming liable for deportation, this is a graded system for deportation liability which takes account of the seriousness of the offending and length of time the person has been a New Zealand resident since the date of the offending.

There is also deportation liability for people if their refugee or protection status is cancelled (section 162) and for persons who are a national security threat (section 163).

The Process: From Notice to Deportation

The DLN must be served in accordance with section 386A of the Immigration Act 2009 – i.e. either personally by an immigration officer, or by registered post (courier) to the visa holder’s address or to their professional adviser. Sometimes DLNs have been emailed by way of purported service, but this does not meet the Act’s requirement.

Section 171 of the Immigration Act 2009 sets out the information that a DLN must contain, which includes the provision of the Immigration Act 2009 under which liability for deportation arose (i.e. sections 154 to 163 discussed above), and the ground or grounds on which liability for deportation arose.

If applicable, the DLN will also refer to the person’s right to give “good reason”, not later than 14 days after the date of service of the notice, as to why deportation should not proceed. For example, a person issued a DLN pursuant to section 155, 156 or 157 will have this right available to them.

The DLN will also stipulate whether there is a right of appeal against liability for deportation and, if so, what it is, how to exercise it, and the time limit for lodging the appeal.

For example, Residence Visa holders issued with a DLN may lodge an appeal against deportation to the Immigration & Protection Tribunal within 28 days “on the facts” (i.e. they dispute the factual basis for Immigration New Zealand’s finding they are liable for deportation) if they are liable for deportation under the following sections of the Immigration Act 2009:

• sections 155;

• sections 156, 157 or 158, except where the person is convicted of any of the offences mentioned in these sections (since, obviously, the IPT has no jurisdiction to re-examine facts in respect of which a Court has already established);

• sections 159, 160 or 162.

In most situations, a person issued with a DLN will also have the right to lodge an appeal against deportation on humanitarian grounds, which are that “there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.” There are strict deadlines for lodging an appeal.

The DLN will also normally provide information about the length or period of prohibition on entry to New Zealand that the person named in the notice may become subject to, and the consequences of attempting to return to New Zealand during the prohibition.

If a person does not respond to a DLN or they have exhausted their rights (e.g. their “good reasons” submissions are rejected by Immigration New Zealand or their IPT appeal is declined), then Immigration New Zealand will issue a Deporatation Order to immediately act to detain and remove the affected person from New Zealand (i.e put them on the first available craft leaving New Zealand). Sometimes the New Zealand Police will assist or be involved in this process. This can happen as soon as the Deportation Order is served on the affected person. The order typically sets out the grounds for deportation liability, the consequences of deportation and the costs that must be repaid to the New Zealand Government for the actual deportation.

Your Rights and Options After Receiving a DLN

There are a number of ways it may be possible to challenge your deportation, which, depending on your visa status and circumstances, may include:

1. Persuading Immigration New Zealand that you are not liable for deportation (e.g. 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 on humanitarian grounds

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 you are a resident visa holder 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 that 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. However, a Bill currently before parliament intends to remove the ability for resident visa holders to avoid deportation liability through a section 106 discharge without conviction.

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, the relevant section of the Act pertaining to your deportation liability, and the time that has lapsed, and I would strongly recommend seeking legal advice from an immigration lawyer before proceeding.

It is critical that anyone who finds themselves facing possible deportation obtains legal advice from an immigration expert to give themselves the best possible chance of remaining in New Zealand.