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Criminal offending and deportation liability

22 October 2015 - By Stewart Dalley and Maya Bozovik

The risk of a visa holder being subject to deportation has been a feature of immigration law for a number of years. Traditionally, however, for reasons unknown, Immigration New Zealand have been slow to issue deportation liability notices (DLN) on visa holders who were convicted of a crime, despite the legislative ability.

In our practice, clients with criminal offending have up until now generally fallen into two camps – those clients whose visa was due to expire and were aware that a criminal conviction meant they required our assistance to make submissions to Immigration New Zealand for a character waiver to be granted in order for them to be eligible for new visa, and those clients who only became aware of the need for a character waiver once they had filed a new visa application, and thereafter sought our firm’s assistance.

We are now witnessing a change of direction in terms of immigration compliance procedures. Immigration New Zealand is now actively issuing deportation liability notices on visa holders soon after a qualifying criminal conviction has been entered. This includes cases where there is a pending temporary visa application.

It is our view that this shift in compliance practice by Immigration New Zealand necessitates immigration advice being sought before any conviction or plea being entered for a client.

The advice may, however, differ depending on the visa the client currently holds.

Temporary visas include, but are not limited to, work, student and visitor visas. Section 157(5)(b) of the Immigration Act 2009 provides that a temporary visa holder is liable for deportation if they are convicted of any crime.

As mentioned above, Immigration New Zealand is now actively pursuing s 157(5)(b) and issuing deportation liability notices not long after a conviction is entered.

Section 207 of the Immigration Act 2009 provides that a temporary visa holder can appeal against deportation liability on humanitarian grounds (within 28 days of the DLN being served).

Section 207(1) requires the appellant to satisfy the Immigration and Protection Tribunal 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.

High threshold

This is a high threshold test that will not be easily met. The Immigration and Protection Tribunal’s Annual Report for 2014/2015 highlights that 69% of appeals against deportation by non-residents were declined, while 56% of appeals against deportation by residents resulted in a decline.

Accordingly, for many temporary visa holders the serving of a DLN will result in them being deported from New Zealand because they will be unable to satisfy s 207(1) of the Immigration Act.

The serving of a DLN also prevents temporary visa holders from applying for any other type of visa. Therefore, they are unable in most cases to apply for a new visa, and with it seek a character waiver from Immigration New Zealand. When that happens, the client becomes unlawfully in the country and unable to work or study.

Residence visa holders

While temporary visa holders can be subject to deportation as a result of being convicted of any crime, s 161(1) of the Immigration Act provides that a residence visa holder becomes liable for deportation if convicted of a crime where the court has the power to impose a term of imprisonment of: (a) 3 months or more within 2 years of obtaining residence, or (b) 2 years or more within 5 years of obtaining residence, or (c) 5 years or more within 10 years of obtaining residence.

Section 161(d) was recently added so that residence visa holders who are employers can also be subject to deportation if they are convicted of exploiting workers or employing staff who are not legally able to work.

There has been an increase in Immigration New Zealand’s tendency to instigate deportation liability procedures where a resident has applied for a permanent resident visa and their circumstances fall under s 161(1)(a).

It is also noted that Immigration New Zealand’s actions in this context now includes low-level offending and first time offenders which would have generally not been acted upon in the past. As per s 169(1)(b), this in turn prevents the applicant from being able to obtain a permanent resident visa. While they may be granted travel conditions, they remain in limbo, awaiting Immigration New Zealand’s decision as to whether any deportation action will be taken at all.

Proportionality of outcome

The proportionality of convicting a visa holder of a crime needs to be factored into criminal defence submissions.

It needs to be borne in mind that the entering of a criminal conviction will likely (69% for non-residents, 56% for residents) result in the accused being deported from New Zealand because they will not be able to meet the high threshold humanitarian appeal test.

While in many cases it may appear proportionate to convict someone and sentence them to, for instance, 100 hours community service (and this may appear to be a prima facie “good deal”), when the accused is a temporary visa holder (or resident visa holder if it is a qualifying conviction), the entering of that conviction will in the majority of cases result in deportation.

It will be a question of fact in each case as to whether it is proportionate in the circumstances to convict, in the knowledge that the conviction will invariably result in deportation. In this respect, we need to ask whether the punishment truly fits the crime.

Conclusion

Given the increased instances of Immigration New Zealand issuing DLNs soon after a qualifying conviction is entered, it is our view that the immigration impacts of a conviction must factor during criminal proceedings affecting visa holders. Otherwise we risk having truly disproportionate outcomes.

It is further evident that non-citizens, including resident visa holders, must obtain advice of the immigration consequences of their criminal offending before entering a plea.

Maya Bozovik is a senior solicitor with Ryken and Associates who specialises in all areas of immigration and refugee matters. Stewart Dalley is also a solicitor with Ryken and Associates working in this field of law, and is currently a member of the ADLS Inc Immigration and Refugee Law Committee.

Last updated on the 22nd October 2015