This Pathway is essentially a mechanism for restoring residence to a former New Zealand resident whose Resident Visa has expired because they were outside New Zealand when their travel conditions expired, or because they left New Zealand after those travel conditions had expired. 

The critical issue is not simply that the person previously held residence. 

It is what they were eligible for on the date their Resident Visa expired. 

1. Core eligibility

Under RV4.5, a person may apply for a second or subsequent resident visa where they previously held, or were deemed to hold, a Resident Visa that expired because they:

• left New Zealand after their travel conditions had expired; or
• were outside New Zealand when their travel conditions expired. 

The current guidance says the application must be made before travelling to New Zealand. 

But satisfying RV4.5 only gets the applicant through the first gate.

2. The important second test

At the time the previous Resident Visa expired, the person must have been eligible for either:

1. a Permanent Resident Visa (PRV) based on commitment to New Zealand, in which case the SSRV application must be made within two years; or
2. a Variation of Travel Conditions (VOTC) whose travel conditions would still be valid at the time the SSRV application is made. 

This means there are effectively two possible pathways:

Pathway A: PRV eligibility at expiry

If the person qualified for a PRV immediately before the Resident Visa expired, they can potentially use the SSRV provisions, provided they apply within the two years specified. 

One common way of qualifying for PRV is physical presence: at least 184 days in New Zealand as a resident in each of the two years immediately preceding the relevant PRV assessment date. 

The other commitment routes include:

• New Zealand tax residence;
• qualifying New Zealand investment;
• operating a qualifying New Zealand business; or
• establishing a qualifying base in New Zealand. 

Pathway B: VOTC eligibility at expiry

If the person did not qualify for PRV when the Resident Visa expired, the alternative question is whether, on that date, they could have obtained a Variation of Travel Conditions, and whether the resulting travel conditions would still be current when the SSRV application is lodged. 

That second element is important. Historical eligibility for a VOTC by itself is insufficient if the period of travel conditions that would have been granted has subsequently run out.

3. Principal versus non-principal applicants

This is particularly important in family residence cases.

A non-principal applicant cannot be granted an SSRV before the principal applicant. Ordinarily, a person who was a non-principal applicant on the original residence application must apply with or after the principal applicant, unless an exception applies. 

There is then an especially important rule concerning former dependent children:

• A person originally included as a dependent child continues to be assessed by reference to the principal applicant's eligibility for SSRV purposes even if that child is now an adult. 

In other words, becoming 25, 26 or 27 after residence was granted does not, by itself, mean that the former dependent child has to independently demonstrate the principal applicant's PRV/VOTC eligibility.

4. Family members

For the normal SSRV route, a partner or dependent child included in an SSRV application must have been included in the original residence application. 

The current public guidance indicates that a partner and dependent children aged 24 or younger can be included in an SSRV application, subject to the detailed eligibility provisions.

Therefore, it is important to distinguish between:

• someone being included now as a dependent child; and
• someone who already held residence as a dependent child and is now applying in respect of that expired residence.

Those are not necessarily the same legal situation.

5. What does the new Resident Visa look like?

An SSRV restores resident status and allows the holder to live, work and study in New Zealand indefinitely. 

However, residence status and travel conditions need to be considered separately.

Under RV4.15, the travel conditions attached to the second/subsequent Resident Visa can depend on the basis upon which the applicant qualified. The instructions provide for multiple-entry travel conditions calculated by reference to the VOTC the person could have obtained, PRV eligibility, or applicable special provisions.  Also, any applicable non-travel conditions imposed under sections 49(1) or 50 on the original Resident Visa are generally carried across to the new Resident Visa for the relevant period. 

6. Special provisions

There are also specific concessions/special provisions outside the ordinary route.

For example, expressly identifies special provisions concerning:

• partners of New Zealand citizens; and
• residents seconded overseas as part of their New Zealand employment. 

For partners of New Zealand citizens, the current public criteria say SSRV eligibility can arise where the applicant either:

• originally obtained residence based on partnership with a New Zealand citizen; or
• has been living with their New Zealand citizen partner for at least 12 months,

with evidence of the partner's support and a genuine and stable relationship required. 

7. Character

The applicant must remain of good character. Currently, police certificates do not normally have to be submitted with the application itself, although it retains the ability to request further evidence. 

If you find yourself in this situation or alternatively in other complex immigration situations, please contact me for an obligation-free consultation.