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What happens when immigration and criminal law collide?

11 Aug 2022

| Author: Nicky Robertson & Mahafrin Variava

Decisions made in one area of law can have a significant impact from an immigration perspective on a migrant’s ability to continue to live in New Zealand. Not all of these are positive. Criminal law decisions can have serious negative implications for temporary visa holders in particular, but also in some instances for resident visa holders. This article explores some of those issues that all criminal law practitioners should be aware of.

Immigration status

Being charged with any offence potentially amounts to a material change in a migrant’s circumstances. Depending on the charge and type of visa held at the time, the charge may need to be disclosed to Immigration New Zealand (INZ). INZ can also become aware of a charge through voluntary disclosure by the visa applicant or through external sources.

When it comes to criminal offending, the starting point for review is the provisions set out in the INZ Operational Manual. The generic “instructions” include the character requirements relevant to the assessment of temporary and residence applications, some of which mirror the character sections contained in the Immigration Act 2009.

These provisions confirm that no visa or entry permission may be granted to any person who at any time has been convicted of an offence where her or she was sentenced to a term of imprisonment of five years or more at any time or for 12 months or more in the preceding 10 years. Note, however, for offending on a temporary visa, the character bar is far lower: any offence that could allow the court to impose a sentence of imprisonment of three months or more will create a problem.

Therefore, where an applicant charged with an offence has a temporary visa application being processed or lodges a subsequent application with INZ, where if convicted they will no longer meet the good character requirements and/or no longer be eligible to be granted a visa, INZ will put the processing of the application on hold.

For temporary visa holders, any decision made by INZ to delay the processing of an application until such time as the outcome of any court process is known can result in an applicant becoming unlawful in New Zealand. The backlog of cases has been exacerbated due to the covid-19 lockdowns. The Courts of New Zealand website shows that as at 30 June 2021, in Auckland alone the average number of waiting days before trial was 507.

Where an applicant’s temporary (or interim) visa has expired before a decision is made on his or her application, they could become unlawfully present in New Zealand, with no ability to work. This puts an applicant in the untenable situation of having to remain in this country without any lawful ability to provide for themselves and any dependent family members.

As such, when a visa holder is charged with an offence in New Zealand, they should be advised to immediately seek immigration advice as to the potential implications for their immigration status, how that is to be communicated and managed with INZ, the effect of a conviction on any future applications they may lodge and any options open to them to try to have a decision made on their application (or to lodge alternative applications) despite the charge.

Character waivers

Where a temporary visa holder is convicted of an offence which results in them not meeting the applicable character provisions, and has an application pending or then applies for a new visa, he or she can be considered for a character waiver.

However, this is a discretionary decision. INZ will weigh up the negative information (conviction, sentence imposed and how long ago the offending occurred, for example) against the applicant’s positive factors to determine whether or not to grant a waiver.

Any decision by INZ not to grant a character waiver to a temporary visa holder will result in the application being declined. There is no guarantee that a character waiver will be granted even when applicants have family in New Zealand.

Deportation liability

Where an applicant for a temporary visa is convicted, in specific situations he or she may also find themselves liable for deportation. Under the instructions, INZ can issue a Deportation Liability Notice (DLN) where either the Minister of Immigration or an immigration officer determines there is sufficient reason to deport. Sufficient reason includes not only criminal offending but other matters relating to character as well.

For resident visa holders, a conviction may also result in them being liable for deportation. For example, where a resident visa holder is convicted of an offence where the court could impose a sentence of imprisonment of three months or more (for example, driving with excess blood/breath alcohol), and that offence took place within two years of the grant of their first resident visa, the visa holder is also liable for deportation.

Again, if a resident visa holder is charged with an offence, he or she should seek expert immigration advice to fully understand the potential risks to their immigration status if they are convicted and, with that, setting a strategy with their criminal counsel to avoid potential deportation.

Discharges without conviction

There have been instances where a New Zealand court has granted a temporary visa holder a discharge without conviction. However, INZ has then issued the visa holder a DLN. The rationale for this decision in some cases has been that the visa holder must have pleaded guilty to the offence to be then granted a discharge without conviction so this constitutes “other matters relating to character”.

INZ’s approach in issuing DLNs to temporary visa holders where they have been granted a discharge without conviction amounts, in the writers’ opinion, to a further form of punishment. This is because the court reached its decision only after carefully considering the nature of the offending, along with the defendant’s situation and circumstances. Further, the courts have taken into consideration the fact that a visa holder becoming liable for deportation may not automatically result in him or her being served a DLN.

In the case of Blakelock v New Zealand Police [2019] NZHC 2487 (1 October 2019), the court found that the fact someone may be liable for deportation “does not automatically mean a deportation liability notice will be issued”. However, INZ’s recent approach has been to issue DLNs to temporary visa holders in most cases, despite having the discretion not to do so.

It is worth noting that INZ is increasingly ignoring the “seriousness” of offending in its consideration of whether a DLN should be issued. Whether your client is a first-time offender or whether it is a low-level offence, a DLN can be triggered. This approach suggests the potential immigration implications of a conviction far outweigh the gravity of the offending. However, the courts have demonstrated different approaches to the issue of ‘discharge without conviction’. Courts in some cases have been prepared to consider the immigration ramifications for a defendant as being disproportionate to the offending. Other courts have stated that any immigration decision should be reached by immigration authorities without judicial interference.

Despite this, a discharge without conviction for a temporary visa holder significantly increases his or her prospects of securing a further visa and is the ideal scenario for both temporary and resident visa holders from a character perspective because it makes arguing reasons against their deportation liability far easier.

Where courts choose not to consider the immigration impacts of a conviction, INZ may then issue a DLN. In this instance, consideration must be given to whether there is room to challenge the original conviction through the courts. This approach is not uncommon and in most cases appeals are filed to the High Court out-of-time. This is due to what can sometimes be a slow process between the conviction and when INZ gets in touch with the applicant advising he or she is liable for deportation.

The decision of Rahim v R [2018] NZCA 182 is an example of the above approach. The court recognised evidence from Rahim that if a conviction were entered “there was a real and appreciable risk that he would be deported, thereby splitting up the family”. The court further found that deportation would be a consequence out of all proportion to the gravity of the offending.

Rahim’s case was precedent-setting because prior to this, the approach of the courts had been to leave the consequences of a conviction to the immigration authorities. This approach may not be successful in all cases and more recently we have seen the courts revert to their traditional position.

Criminal bar

Decisions made by the courts can have significant negative impacts on visa holders and their familes. Being aware of a client’s immigration status is essential to them to fully understand the potential implications of any charge and/or conviction they may receive on their current and/or future immigration status. This is material to inform the strategy developed by criminal practitioners in response to the charge, so must be considered at the earliest opportunity.

The takeaway for members of the criminal bar is that immigration specialists can act as expert witnesses to outline the potential consequences of a conviction to support submissions for a discharge without conviction. Many are successful and a better outcome in an immigration sense is often achieved. ■

Nicky Robertson is a senior associate and Mahafrin Variava is an associate in the immigration team at Lane Neave ■

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