Requirement to be lawfully in New Zealand

At a glance

• Only New Zealand citizens may be in New Zealand without a visa. Anyone else must hold (or be deemed to hold) a current visa. [D2.10.5]
• Being in New Zealand without a valid visa makes a person unlawful, regardless of whether they have lodged a new application. [D2.10.5, D2.10.10]
• Unlawful persons are liable for deportation and must leave New Zealand. [D2.10.15, D2.10.25]
• An interim visa can maintain lawful status while a further visa application is processed. [D2.10.10]
• A person who is in New Zealand lawfully and wishes to stay indefinitely must hold (or be deemed to hold) a residence class visa, unless they are a New Zealand citizen. Temporary visa holders do not have indefinite stay rights. [RA3.5]

Definition

• Under the Immigration Act 2009, a person who is not a New Zealand citizen must hold a current visa (or be deemed to hold one) to be lawfully in New Zealand. [D2.10.5]
• A person is unlawfully in New Zealand if they do not meet this requirement – for example, if their visa has expired, they never held a visa, or their visa has been cancelled. [D2.10.5, D2.10.20]

Application in decisions

• When considering a visa application, Immigration New Zealand (INZ) must establish whether the applicant is lawfully in New Zealand. A person who is unlawful generally cannot be granted a visa without special intervention (such as a section 61 request or consideration under humanitarian provisions).
• The obligation to leave New Zealand arises the moment a person becomes unlawful, regardless of whether the person is aware of that obligation. [D2.10.25]
• If a person unlawfully in New Zealand is arrested by the Police for other offences, deportation may be delayed, but a deportation order should still be served, and the immigration officer should liaise with the Police to arrange removal. [D2.10.30]

Interpretation & edge cases

• The Immigration Act 2009 sets out specific categories of persons who may be in New Zealand unlawfully. These include (but are not limited to):
  • former holders of a temporary visa or limited visa who remain after the visa expires [D2.10.20]
  • a child born on or after 1 January 2006 deemed unlawfully under the citizenship-by-birth provisions (see A17.5) [D2.10.20]
  • turnaround persons: visa-waiver travellers who fail to obtain a visa, visa holders whose visa is cancelled in an immigration control area, stowaways, and transit visa holders whose transit period has expired [D2.10.20]
  • persons whose residence permit was revoked before commencement of Part 12 of the Immigration Act 2009 and who did not appeal or obtain a temporary permit [D2.10.20]
• A person who is lawfully in New Zealand but does not hold a residence class visa cannot stay indefinitely; they must depart before their temporary visa expires or obtain a residence class visa if they intend to stay permanently. This requirement is separate from the general obligation to hold a current temporary visa. [RA3.5]
• Lodging a visa application does not make the applicant's presence lawful, grant a right to remain while the application is considered, give a right to apply for another visa, or prevent deportation. [D2.10.10]
• However, an interim visa may be granted to a visa holder who applies for a further visa, maintaining lawful status during processing. [D2.10.10]
• The obligation to leave applies even if the person is unaware of it, and all visa applicants are advised of this obligation. [D2.10.25]

Citations

• D2.10 — The requirement to be lawfully in New Zealand
• RA3.5 — Who needs a residence class visa to be in New Zealand