Case files: How to get residency when you don't qualify for it
Drink driving artwork for illustrative purposes.
A man convicted twice of drink driving and once of assault has been granted ministerial amnesty for New Zealand residency
(The names of the people in this story have been changed for confidentiality.)
Danny had been in a genuine, committed relationship for years with his New Zealand partner Sonia. He had lived with her in New Zealand, then in his home country, then in Australia. They got married and built a life together.
In 2022, while living in Australia, Danny applied for a resident visa under the Partnership Category as Sonia’s partner. Immigration New Zealand (INZ) accepted that the relationship was genuine and backed by strong evidence.
But INZ still declined his application. The reason was not his relationship. It was his character.
What he had done
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Between 2017 and 2019, Danny made serious mistakes. He was convicted of drink driving in New Zealand in 2017 and again in 2019.
In July 2019, he was convicted of grievous bodily harm in his home country after an incident at a nightclub. He was intoxicated at the time. He had no memory of what happened.
For that conviction, he received a suspended sentence of two years' imprisonment. He was not required to serve jail time.
In declining his application on character grounds, INZ noted that the offences were not quite recent, but they were also not old enough to be considered historic.
Danny was then told by INZ that he could appeal to the Immigration and Protection Tribunal. At this point, Danny engaged me as his immigration adviser.
I identified that INZ's advice was wrong. He did not have the right to appeal.
INZ’s advice that was never correct
Since Danny had received a suspended sentence of two years’ imprisonment, he fell under Section 15 of the Immigration Act 2009, which defines people sentenced to imprisonment for 12 months or more in the past 10 years as "excluded persons".
An excluded person has no right of appeal to the Immigration and Protection Tribunal. In fact, Danny had no right to apply for a New Zealand visa in the first place. This was something else INZ had overlooked.
I raised this with Danny's case officer. She confirmed he had no appeal rights and agreed that I could instead request a special direction from the Minister of Immigration.
Why he would not reoffend
Every single one of Danny's offences happened while he was drinking. This was not an excuse. It was a significant fact.
In July 2019, after committing those offences, Danny was diagnosed with Type 1 diabetes. His doctor told him clearly that drinking alcohol was dangerous for his health. From that point on, he stopped drinking completely.
His probation conditions also required him to abstain from alcohol and drugs and to provide urine and hair samples for testing.
Danny had not consumed alcohol since July 2019. This was not just a claim. It was supported by clear evidence.
A hair sample taken in May 2020 confirmed no alcohol consumption in the previous five months. Hair and urine tests in 2023 were also clear. His GP in Australia confirmed the medical advice he had received.
Danny’s police certificates showed no criminal convictions since 2019.
A wife waiting to go home
Sonia stood by Danny through all of this. She decided not to return to New Zealand without him. She missed her parents and her siblings. She worried about her sister, who went through a period of severe depression. Sonia's family in New Zealand wanted her home.
The outcome
These were the facts and the evidence I placed before the Associate Minister of Immigration.
The minister's representative agreed with my representations and granted Danny a special direction. This meant that every time Danny applied for a visa, the character requirement would be waived, so long as there were no new offences.
This cleared the way for him and his wife to return to New Zealand permanently.
Danny did not ask the minister to forget what he had done. He asked the minister to consider what the evidence actually showed. That he had changed. That the reasons he offended no longer existed.
The minister agreed.
Danny and Sonia returned to New Zealand. Danny was approved a work visa and later granted residence.
Sonia's family, who had paid my professional fees to act for Danny, were grateful and relieved. I was happy for all of them.
What if you or a family member has a criminal history?
A criminal history does not always mean New Zealand is permanently closed to you. But it does mean you should understand your options before you decide what to do.
The right pathway depends on the nature of the offending, the sentence imposed, when it happened, and whether any discretion is available under immigration law.
In some cases, people assume they have no options when that is not true. In other cases, they apply under the wrong pathway and create bigger problems for themselves. Sometimes, as happened here, they are given advice by INZ that does not reflect the correct legal pathway. The key is to understand your options properly before you take action.
(Ankur Sabharwal is a Licensed Immigration Adviser and founder of Visa Matters, an Auckland-based immigration advisory firm. He provides immigration commentary on TVNZ Breakfast and has been published by Stuff and The Post.)
