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06 April 2020

Deportation appeal - resident with criminal convictions

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Our client successfully appealed to the Immigration and Protection Tribunal against his liability for deportation.  His situation was unusual in the fact that he had resided in New Zealand for over 25 years.  He had held a residence class visa for approximately four years.  Balanced against this was his recent criminal conviction.

Residence class visa holders may be deported under s 161 of the Immigration Act 2009 if they are convicted of certain offences within specified periods of time since being granted residence.  A person who has held residence for over 10 years is usually unable to be deported.  The following chart illustrates this:


Time since being granted a residence class visa:

Maximum period of imprisonment which the Court has the power to impose:

Two years

(or the offence was committed when the person was unlawfully in New Zealand or on a temporary visa)

3 months

Five years

2 years

10 years

5 years


Our client was convicted of a charge of male assaults female, for which the Court has the “power” to impose a maximum sentence of 2 years’ imprisonment.  He committed this offence within five years of being granted residence.  Accordingly, INZ took the view that he was liable for deportation, even though he was only sentenced to a fine and Court costs.

The Tribunal made some interesting observations in this case.  The length of time that our client had been in New Zealand, and his lack of connection to his home country, were considered to be exceptional circumstances for the purposes of the first part of the humanitarian assessment.  The Tribunal referred to the Supreme Court case of Helu v Immigration and Protection Tribunal [2015] NZSC 28, which states that:

There are factors other than nationality which may establish close and enduring connections between a person and a country, connections which may be stronger than those of nationality. The words ‘his own country’ invite consideration of such matters as long standing residence, close personal and family ties and intentions to remain, as well as to the absence of such ties elsewhere.

Connection with country is an aspect of human identity and dignity. And where deportation entails severing ties with an individual's “own country”… it is directly relevant to the dignity of the individual and his sense of identity.

The evidence established that our client had strong ties to New Zealand.  In contrast, he felt a lack of connection to his home country.  He was assessed as being at a low risk of reoffending.  In order to balance the public interest consideration, the Tribunal suspended our client’s deportation liability for two and a half years.

If you have been made liable for deportation, please contact one of our immigration lawyers to assist.


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