Special directions

At a glance

In special circumstances, the Minister of Immigration (or a delegate) may give a special direction to an immigration officer concerning any person, visa, or document, or a group sharing a common link from a specific event, occurrence, or unusual circumstance. [RA7] The decision to give a special direction is a matter of absolute discretion — no person may apply for one, and the Minister or an immigration officer is not obliged to consider any request or give reasons beyond stating that section 11 of the Immigration Act 2009 applies. [RA7]

Definition

Under RA7, a special direction is an exceptional directive from the Minister (or delegate) to an immigration officer, overriding ordinary immigration instructions in an individual case or for a defined group. The direction may relate to any person, visa, or document, and may address circumstances where strict application of instructions would lead to an unjust or unintended outcome. [RA7]

A special direction can be given for up to two or more persons, visas, or documents if they share a common link caused by a specific event, occurrence, or unusual circumstance. [RA7]

The power is exercised under sections 11 and 378 of the Immigration Act 2009, and is entirely discretionary: the Minister has absolute discretion, and the law expressly provides that:

• no person has the right to apply for a special direction; [RA7]
• the Minister or an immigration officer is not obliged to consider any purported application; [RA7]
• even if a purported application is considered, there is no obligation to give reasons other than that section 11 applies; [RA7]
• section 23 of the Official Information Act 1982 and section 27 of the Immigration Act 2009 (right of access to reasons) do not apply. [RA7]

Application in decisions

Special directions are used as a safety valve for cases where the standard visa instructions produce an inappropriate result, or where an urgent, unusual situation warrants immediate executive intervention. For example, a special direction may waive the requirement to hold a residence class visa for a person caught in a crisis (see Residence class visa waivers). Immigration officers must follow any special direction in force at the time of making a decision, even if it contradicts normal instructions. [RA7]

The Minister’s absolute discretion means that the decision to issue a direction is not reviewable on its merits; only the process leading to the direction may be challenged in judicial review. [RA7] There is no right to be heard before the decision, and no obligation to seek further information.

Because special directions override standard criteria, they are typically used sparingly and only in genuinely exceptional cases. [RA7]

Interpretation & edge cases

• Absolute discretion: The decision to give a direction is entirely at the Minister’s discretion; there is no enforceable expectation of a direction, and the courts will not examine the substantive reasons. [RA7]
• No right to apply: A person who submits a request for a special direction has no right to have it considered. An immigration officer may simply record that it was not considered under section 11. [RA7]
• Access to reasons: The normal right to reasons under the Official Information Act and Immigration Act is excluded. The only statement that can be given is that section 11 applies. Even then, the decision-maker may withhold that under privacy or OIA exceptions if a later request for reasons is made. [RA7]
• Group directions: The link between persons must be based on a specific event, occurrence, or unusual circumstance, not merely a shared characteristic (e.g., nationality alone). [RA7]
• Interaction with other instructions: Special directions can override any other immigration instruction; they are the highest form of individualised decision-making in the immigration system. However, they do not amend the Operational Manual itself. [RA7]

The detailed procedural instructions for special directions are set out in S2 of the Operational Manual. [S2]

Requests for a special direction are limited to people described by sections 15 or 16 of the Immigration Act 2009 who are not eligible for a residence class visa. [S2.1] If there are sufficient grounds to consider granting a residence class visa to such a person, a processing officer may invite the applicant to request a special direction authorising the grant of a residence class visa; an invitation may be made only in cases involving exceptional circumstances, usually of a humanitarian nature, where the person would otherwise be eligible for a residence class visa under residence instructions. [S2.1] INZ may consider a request even without having made an invitation, but neither the Minister nor INZ is obliged to consider any request. [S2.1]

Procedure

Requests for a special direction must follow the steps set out in S2.5 (effective 02/12/2013). [S2.5]

1. The request must be made in writing and must include the reasons why the applicant considers a special direction should be granted. The request is not itself an application for a visa; if granted, a formal visa application must follow. [S2.5]
2. Applicants overseas should make their request to the nearest INZ office, an authorised New Zealand Visa Application Centre, or an accredited MFAT post in their country of residence. [S2.5]
3. Applicants within New Zealand should make their request to an INZ office. [S2.5]
4. If the request is granted, the applicant will be advised that a special direction will be made — and if necessary, a temporary visa under section 61 will be granted to allow the residence class visa application to be made — once the special direction fee is paid. [S2.5]
5. After payment of the special direction fee, the residence class visa application can be processed in the usual way once the appropriate visa application fee has been paid. [S2.5]
6. If the request is refused, neither the Minister of Immigration nor INZ is obliged to give reasons beyond stating that under section 11(c) of the Immigration Act 2009 they are not obliged to give reasons for refusing a special direction; section 23 of the Official Information Act 1982 and section 27 of the Immigration Act 2009 do not apply. [S2.5]

Referral levels for people prohibited under sections 15 or 16

Where the request for a special direction involves a person prohibited under section 15 or 16 of the Immigration Act 2009 from being granted a residence class visa, the decision-making level depends on the specific ground of prohibition. [S2.10]

• Unless the Minister has previously declined a request for a special direction, the request may be decided by an officer with Schedule 1-2 delegations. [S2.10.1]
• If the Minister previously declined a special direction, the request must be referred to the Resolutions Branch for forwarding to the Minister. [S2.10.1]
• For a person prohibited under section 15(1)(c), (d), (e), or (f), the request must be referred to the Resolutions Branch with a supporting recommendation, and the Minister decides. [S2.10.5]
• For a person prohibited under section 15(1)(a) or section 16, an officer with Schedule 1-2 delegations may decline; any potential approval must be referred to the Resolutions Branch for the Minister’s decision. [S2.10.10]
• For a person prohibited under section 15(1)(b), an officer with Schedule 1-2 delegations may decline or approve, but any approval authorising the grant of a residence class visa requires the person to be otherwise eligible under residence instructions. [S2.10.15]

Citations

• RA7 — Special directions
• S2 — Special directions Instructions
• S2.1 — Requests for special directions
• S2.5 — Procedure
• S2.10 — Requests from prohibited people
• S2.10.1 — Requests from prohibited people
• S2.10.5 — People prohibited under section 15(1)(c)(d)(e) or (f)
• S2.10.10 — People prohibited under section 15(1)(a) or section 16
• S2.10.15 — People prohibited under section 15(1)(b)