Transition from NZ Residence to NZ Permanent Residence / NZ Citizenship (Beware)



It is vital that you comply with your Residence conditions to ensure you can obtain Permanent Residence and Citizenship, if this is your ultimate goal. 

Naturally it remains important that you comply with New Zealand laws, as many visa holders face the very real chance of deportation, if they are convicted of a criminal offense. 

Section 161 of the Immigration Act 2009 (Act) states that holders of resident class visas (including Resident Visas and Permanent Resident Visas) may be subject to deportation if convicted of a criminal offense, for which the Court has the authority to impose imprisonment sentences.

If you find yourself facing charges while holding a residence class or temporary visa, it is crucial to seek legal advice from both criminal and immigration lawyers to fully grasp the implications of the conviction from all angles.

If the conviction would render you liable for deportation under the Act, it may be worthwhile to focus on the criminal proceeding to demonstrate how that consequence would outweigh the gravity of the conviction, thus making a case for its discharge to avoid deportation proceedings.

Discharge without conviction application

When an individual faces charges for a deportable offense, there are several avenues to avoid a conviction. They can plead not guilty and undergo a full trial to prove their innocence. 

They could also seek diversion from the police, or they can plead guilty (or be found guilty) and apply for a discharge without conviction.

In cases where an individual pleads guilty to, or is found guilty of, a criminal offense with no minimum sentence, section 106 of the Sentencing Act 2002 empowers the Court to discharge the individual without conviction if it deems, under section 107 of the Sentencing Act, 

that “the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offense“. This is referred to as the Section 107 Analysis.

If successful in their request for discharge of conviction, the individual would not have a criminal record. Consequently, they would not be subject to deportation under section 161 of the Act.

What does this mean?

The Supreme Court recently reinforced the importance of deportation liability. 

This is because a conviction rather than just an outcome of the offending is the key threshold. 

It is appropriate to consider making an application for a discharge of a conviction. This is because a convicted resident class visa holder now has grounds to argue that the deportation would be disproportionate to the severity of their crime. 

This is especially pertinent for individuals who have lived in New Zealand for a long period, actively contributed to the country, and established significant ties within their local community.

Advisa Assistance

Advisa can assist with your Residency, Permanent Residency and Citizenship applications. 

We can also provide guidance should you have extenuating legal issues that could impact your candidacy in this regard. 

I welcome obligation free contact at any time. 

Kind Regards,

Steve Baker
General Manager
Licensed Immigration Advisor 201801044
P: 03 353 0680
M: 027 212 5483
W: advisa.co.nz