Deportation liability may arise under many different circumstances. While a common situation involves an overstayer this is not the only situation in which deportation liability may arise. Deportation liability may also arise when a person holds a current visa and this includes those who have committed certain criminal offences, have breached the conditions of their visa or who have lied to Immigration New Zealand. In some cases, a person who is a resident of New Zealand may become liable for deportation.
When a person becomes liable for deportation this is the first step in removing that person from New Zealand. Generally, a person who becomes liable for deportation will have a limited period of time in which they have a right to apply to the Immigration and Protection Tribunal to review their deportation liability (and potentially cancel their deportation liability). It is important therefore for people who are liable for deportation to act quickly and submit an appeal as the Tribunal will be unable to help if the appeal is submitted late. The time period to submit an appeal is usually 28 or 42 days.
If a person liable for deportation fails to submit an appeal Immigration New Zealand will then be able to proceed to the next step in the deportation process which is to issue a deportation order against that person. It is important for people to understand that under immigration law the meaning of “deported” does not actually mean being forcibly removed from the country: it means that a person has left New Zealand and a deportation order is in force. This means that even if a person leaves voluntarily after they have been served a deportation order, they will still be considered to have been “deported” from New Zealand. This highlights the importance of exercising your right of appeal as the consequences of being issued a deportation order can be severe and may include a prohibition on applying for further visas.
Once you submit an appeal to the Immigration Protection Tribunal and the appeal is lodged, Immigration New Zealand will not be able to issue a deportation order until the appeal is decided.
Persons liable for deportation should be aware that there are two grounds for deportation appeals: appeals “on facts” and appeals “on humanitarian grounds”. An appeal “on facts” is an appeal that challenges Immigration New Zealand’s reasons for considering that the person is liable for deportation. In such cases the Immigration and Protection Tribunal will consider the reasons the person is liable for deportation and determine if Immigration New Zealand was correct to consider the person liable for deportation.
It should be understood that persons who have overstayed temporary visas do not have the right to make an appeal on the facts. Such persons may only appeal on “humanitarian grounds”. What this means is that the Immigration and Protection Tribunal cannot review and overturn the reasons Immigration New Zealand found that person liable for deportation. Instead the Tribunal considers a separate matter: whether that person has “humanitarian circumstances” and whether because of those circumstances the deportation liability should be cancelled.
Humanitarian circumstances are defined under law as exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the person to be deported from New Zealand, and in all the circumstances it would not be contrary to the public interest for the person to remain in New Zealand.
Deportation liability is a complex process that may involve many technical issues relating to immigration law. If you have received a deportation liability notice contact TDA Immigration immediately as we may be able to help.