If you are unlawful and liable for deportation, you can appeal to the Immigration and Protection Tribunal (IPT) on humanitarian grounds. You have six weeks (42 days), counted from when your unlawful status began, usually the day your last visa expired. If you asked INZ to reconsider a refused visa, the 42 days run from when INZ told you it was declining.
The humanitarian appeal
The IPT is independent of Immigration New Zealand (INZ). It works like a court. Because the deadline is strict and the appeal is a legal process, talk to a licensed immigration adviser or a lawyer as soon as you can. Appeal forms and fees are on the Ministry of Justice website.
Section 61 at a glance
| Who it's for | People in New Zealand unlawfully who are liable for deportation |
|---|---|
| The law | Section 61 of the Immigration Act 2009 |
| Who decides | The Minister of Immigration, or senior immigration officers with delegated power. INZ has a dedicated team for these requests. |
| How it's decided | In the decision-maker's "absolute discretion" |
| Must INZ consider it? | No legal obligation. In practice, INZ considers all requests to some degree. |
| Reasons for a decision | Not required to be given to you. Brief reasons are recorded and can be seen by the Ombudsman. |
| Right of appeal | None |
| Visa you could get | A visa of any type, with the same status as that visa normally has |
What a Section 61 request is
A Section 61 request asks INZ to grant you a visa as a special case, even though you are unlawful. Community Law describes it as generally a last resort, for when other options have been tried.
You don't need exceptional or humanitarian circumstances, but your situation usually needs to be out of the ordinary.
If a deportation order has already been made against you, a visa can't be granted under Section 61. You can still make a request: if the officer decides you should get a visa, they can ask for the deportation order to be cancelled.
What INZ looks at
According to Community Law, INZ considers:
- Your immigration history, including any earlier time you were unlawful.
- Your current situation: why you need to stay, how long you've been unlawful, why you don't have a visa, what you've done to get one, and whether your situation was outside your control.
- Your health and character.
- Possibly also a likely pathway to residence, your family ties, how settled you are in New Zealand, and whether you're a security risk.
INZ says your case is stronger if you give a full picture of your situation, show solid evidence of your contribution to New Zealand, and haven't deliberately stayed unlawfully for a long time.
Preparing a request
Because INZ isn't required to consider a request or give reasons, your first submission is often your only chance. Most well-prepared requests address each thing INZ looks at:
- Explain how you became unlawfulDates, what happened, and why. Be completely honest: INZ already holds your history.
- Show what you've done to fix itApplications made, advice sought, letters from INZ, and why they didn't resolve things.
- Describe your ties and contributionFamily in New Zealand, work, community involvement. Back it up with documents and support letters.
- Cover health and characterAddress anything INZ might be concerned about, rather than leaving it out.
- Name the visa you're asking for and whyIf you would meet the rules for a particular visa or residence pathway, say so and show it.
A Section 61 request is a high-stakes, one-chance document. We strongly recommend having a licensed immigration adviser or lawyer prepare or review it.
If your request is declined
There is no right to appeal to any tribunal or court. Community Law lists these remaining options:
- Submissions to the Associate Minister of Immigration, asking them to step in. This is not treated as a Section 61 request, so INZ compliance may still act to deport you while you wait.
- Judicial review in the High Court. This is limited: the court mainly looks at whether the decision was made by the right process.
- A complaint to the Ombudsman, who can see the brief reasons INZ recorded.
Leaving New Zealand
Being deported can affect your ability to get visas for New Zealand and other countries in future. If staying isn't possible, a licensed adviser can explain how leaving voluntarily compares with deportation in your situation.
If you can't go home because you fear serious harm there, read our refugee and protection guide. A refugee or protection claim is a different process.
Common questions
Does making a Section 61 request stop deportation?
Not automatically. Section 61 applies to people who are liable for deportation, and making a request does not remove that liability.
Can I work while I'm unlawful?
No. Without a visa you have no right to work, and employers can't legally employ you. Working unlawfully can make your situation worse.
Will INZ tell me why I was declined?
The decision-maker doesn't have to give reasons, and you can't get the recorded reasons through the Official Information Act or Privacy Act. The Ombudsman can see them if you complain.
Is a humanitarian appeal the same as a Section 61 request?
No. A humanitarian appeal goes to the independent Immigration and Protection Tribunal and has a 42-day deadline. A Section 61 request goes to INZ and is decided in absolute discretion.
Free and paid help
- Community Law Centres give free initial advice. communitylaw.org.nz
- Licensed immigration advisers and lawyers can prepare your appeal or request. Check an adviser is licensed on the Immigration Advisers Authority register before you pay anyone.
Sources
- Immigration New Zealand: Section 61
- Community Law: Applying for a visa as a special case (Section 61)
- Community Law: Appealing on special humanitarian grounds
- Immigration New Zealand: effects of deportation (refugee and protection page)
This is general information, not immigration advice. For advice on your situation, talk to a licensed immigration adviser or a lawyer.