In this 3 part Immigration series, Harris Gu, Solicitor at Queen City Law discusses key issues with Temporary Visa’s, Interim Visa’s, Employers’ obligations and 2021 RV. Follow the series here.
What is an interim visa?
An interim visa is usually issued by Immigration New Zealand (“INZ”) to maintain a visa applicant’s lawful status in New Zealand (“NZ) while their further temporary visa application is being considered. [1]
An interim visa cannot be applied for as grant of the visa is a matter of absolute discretion of the Minister of Immigration or the relevant immigration officer.
An interim visa will start the day after the applicant’s current visa expires, and expires on the earliest of [2]:
- The start date of the further temporary visa
- When the applicant departs NZ
- 21 calendar days after the date the further temporary visa is declined
- 21 calendar days after the date the further temporary visa is withdrawn
- 6 calendar months from the interim visa start date
The law does not give INZ the discretion to extend the duration of an interim visa beyond 6 months. This means the interim visa will expire on the first day of the 7th month.
Further, an interim visa holder may not apply for a temporary visa while the interim visa is current.[3]
This article will discuss what the implications are for the visa applicants when an interim visa has expired and what are the expectations of legal counsel in dealing with this issue.
What are the implications?
The need to hold a valid visa in NZ
By law, any person in NZ other than an NZ citizen or person who holds (or is deemed to hold) a current visa must hold a valid visa. Otherwise, they are considered to be in NZ unlawfully.
A person unlawfully in NZ is liable for deportation and if they are deported from NZ, they will be prohibited from entering NZ for up to 5 years from the date of deportation.
They will also need to be granted Ministerial special direction to be granted another visa after the passing of the prohibition period.[4]
So it is really important that one should always ensure that they hold a valid visa whilst in NZ.
Case study: When an interim visa expiry is inevitable and one’s unlawful status is certain
It is unclear why an interim visa is allowed to be valid for up to 6 months, but it is clear that one would be in NZ unlawfully when the interim visa expires and subject to the aforementioned implications.
This issue was intensified during the COVID-19 Pandemic. Since COVID hit NZ, INZ has been slow across all visa applications. The NZ border was closed to all offshore visa holders and applicants, but INZ could still process visa applications made onshore. However, INZ has been notoriously slow to process work visa–talent (accredited employer) applications.
One example is that an applicant applied for a work visa on the day his current visa expired, and was granted an interim visa starting the following day. But external checks of undisclosed nature were being conducted by INZ and took more than 6 months to complete. So before the application was decided, the applicant’s interim visa had already expired and inevitably, he was made an overstayer.
Due to border restrictions, the applicant could not return to NZ once departed NZ. Further, it would be unpractical and non-sensical to wait for the outcome offshore when one is already onshore. As noted, the purpose of an interim visa is to maintain a visa applicant’s lawful status in NZ while their further temporary visa application is being considered.
When INZ eventually declined the application 12 months later:
- He had lost his right of reconsideration [5]
- He had also lost his right of appeal [6]
- He was open to be served on a Deportation Order and taken into custody awaiting deportation [7]
In short, the law on interim visa could potentially impede applicants’ other rights affirmed under the Immigration Act 2009. This should not be what the lawmaker had intended in the first place.
INZ’s position
Over the years, INZ has been reluctant to even address this issue. At best, they would acknowledge the issue, but at the same time would confirm the applicants’ deportation liability. Nothing substantive has been done to even try to fix the issue.
Ironically, it would be a simple fix as the Minister of Immigration has the statutory power [8] to amend the Immigration Instructions as he sees fit.
Managing client expectations
Not all visa applicants are aware of their immigration obligations and these implications, so it is crucial that as legal counsels, we should always think one step (or a few steps) ahead and ensure that our clients are well aware of their circumstances to be able to make a fully-informed decision on the way forward.
Counsels should take note that at all times they cannot make a decision on behalf of the applicant, and ensure that their clients understand the legal consequences of any decision they make.
Prior to joining Queen City Law, Harris used to work for a former Minister of Immigration as a licensed immigration adviser for 7 years. Harris has extensive experience in dealing with all types of visa applications, as well as appeals to the Immigration & Protection Tribunal (IPT), Section 61 requests, Ministerial special directions & Ombudsman complaints. Harris obtained his LLB and BCom degrees from the University of Auckland and was admitted to the High Court of New Zealand in October 2021. Harris is pleased to have joined Queen City Law’s large award winning Immigration Law team. Harris speaks fluent Mandarin. Harris currently serving on the Auckland District Law Society (“ADLS”) Immigration & Refugee Law Committee. https://adls.org.nz/Chapter?Action=Members&Chapter_id=12. Connect with Harris via LinkedIn
[1] Immigration Instruction I1.1
[2] I1.15
[3] I1.20.5
[4] A5.40
[5] Section 185 of Immigration Act 2009 provides that the applicant must be lawfully in NZ to request reconsideration of a declined visa application.
[6] Section 154 of the Act provides that right of appeal against deportation liability extinguishes after 42 days of becoming unlawfully in NZ.
[7] Section 175A provides that Deportation Oder may be served on the person on the day after the expiry of the period for lodging the appeal. Section 309 provides that persons liable for deportation is liable to arrest and detention.
[8] Section 22(1).
