Non-Resident (Humanitarian) Appeal

Beyond Immigration Policies: Residence for Those with Exceptional Humanitarian Circumstances

In certain situations, individuals whose visa applications have been declined or those who have overstayed their visas may be granted a resident visa based on strong humanitarian circumstances.

When your visa expires, Immigration New Zealand (INZ) will inform you that you are considered "unlawful" and not entitled to remain. If your visa has already expired and INZ declines your new application while you are in New Zealand, you will be told to leave the country immediately.

The decline letter from INZ will also inform you that you have the right to file a humanitarian appeal with the Immigration and Protection Tribunal (IPT). What INZ won't tell you, however, is that if your appeal is successful, the IPT has the authority under section 210 of the Immigration Act 2009 to grant you a temporary visa for up to 12 months, or even a resident visa.

While a successful humanitarian appeal can lead to a resident visa, not every appeal will be successful. According to section 207 of the Immigration Act 2009, three main requirements must be met for an appeal to be allowed:

• Exceptional humanitarian circumstances must exist.
• It would be unjust or unduly harsh to deport the appellant.
• Allowing the appellant to remain in New Zealand would not be contrary to public interest.

The New Zealand Supreme Court has clarified that "exceptional humanitarian circumstances" do not have to be extremely rare, but they must be "well outside the normal run of circumstances and truly an exception rather than the rule." Similarly, to be considered "unjust or unduly harsh," the hardship faced upon deportation must be more than a "generic concern" and "beyond the level of harshness that must be regarded as acceptable."

For instance, the fact that you will be separated from your family is not enough on its own. Similarly, a significant drop in income upon returning to your home country may not be considered "unduly harsh" by itself. However, if a father in New Zealand has a citizen child who is financially dependent on him, and the child's mother is unable to provide adequate support, his case may be considered differently.

Past IPT decisions show that the Tribunal considers various factors when determining if exceptional humanitarian circumstances exist and if deportation would be unjust or unduly harsh. Some of these factors include:

• Familial Ties to New Zealand

The IPT will examine the appellant's family ties in New Zealand versus those in their home country. Having most of your immediate family members as New Zealand residents or citizens living in New Zealand is generally a positive factor.

• Contributions to New Zealand

The contributions an appellant has made to New Zealand are not limited to professional skills or work. Familial contributions to New Zealand citizen or resident family members, as well as contributions to the local community, are also considered relevant.

• Circumstances of Deportation

The IPT will look at the reasons why an individual became liable for deportation. It will assess the appellant's conduct and whether circumstances outside of their control led to their unlawful status.

• Character and Health

The IPT will assess whether an appellant's character or health would make their continued presence in New Zealand contrary to the public interest. A clean criminal history is typically sufficient to address character concerns.

Regarding health, an acceptable standard of health on a medical test is usually adequate. However, appeals by individuals with chronic illnesses are not always unsuccessful. They can provide evidence that their conditions are manageable with effective treatment. In some cases, appellants who are no longer able to live independently may succeed if their dependency demonstrates that deportation would be "unduly harsh."

• Availability of Alternative Pathways

Your chances of a successful appeal may decrease if the IPT finds that you have another pathway to residence or another way to remain in New Zealand.

• Settlement and Connections in New Zealand

The length of time an appellant has lived in New Zealand is a key factor. The longer a person has been settled, contributed, and established connections, the more likely the IPT will find they have integrated into the community.

• Best Interests of the Children

The IPT is obligated to consider the best interests of any New Zealand citizen or resident child as an important factor. A crucial question is whether any child would benefit from the appellant's presence in New Zealand.

• Consequences of Deportation

The Tribunal will consider the consequences for the appellant if they are deported. This includes whether they would be able to care for themselves in their home country. The Tribunal will also look at whether any children or other individuals in New Zealand depend on the appellant for care or financial support, and what would happen to these individuals if the appellant were no longer in New Zealand.

• Examples of Successful Humanitarian Appeals

Here are some examples of successful humanitarian appeals that resulted in a grant of a resident visa.

• CX (Philippines) [2024] NZIPT 506274

This appeal involved Mr. CX, an 87-year-old widower from the Philippines who arrived in New Zealand on a visitor visa. Two of his daughters are New Zealand citizens. Mr. CX lived with his younger, widowed daughter, providing companionship and emotional support. During his time in New Zealand, he also frequently visited his elder daughter's family and developed a close bond with his two grandsons, whose learning disabilities resulted in them having very few friends. As a grandfather, Mr. CX loved both of his grandsons unconditionally despite their vulnerabilities, and his grandsons regarded him as an "irreplaceable true friend."

Mr. CX's application to extend his visitor visa was declined, making him unlawful. However, the Tribunal found that his role as an irreplaceable companion to his vulnerable grandsons and the emotional benefit his daughters gained from his presence constituted exceptional humanitarian circumstances. As a result, his appeal was successful, and he was granted a resident visa.

• ED (South Africa) [2024] NZIPT 506428

This appeal concerned Ms. ED, a woman in her mid-20s from South Africa who had been a work visa holder. She had to resign from her job because she was unable to handle the fast-paced demands of her role due to a diagnosis of Fetal Alcohol Spectrum Disorder (FASD). While unable to perform highly skilled work, she could manage a low-skilled, slower-paced job and support herself. However, her resignation led to the loss of her work visa, making her unlawful.

Ms. ED's father had passed away, and her mother in South Africa suffered from depression and was unable to care for her. Ms. ED had also been a victim of a serious criminal offense in South Africa that left her traumatized. Her two siblings had immigrated to New Zealand, and one had become a resident. Ms. ED lived with her New Zealand resident sibling, who provided her with support and care. The Tribunal found her strong bond to her sibling, her vulnerabilities, and her need for ongoing support to be exceptional humanitarian circumstances. Her appeal was successful, and she was granted a resident visa.

• AQ (UK) [2018] NZIPT 503888

In this appeal, Mrs. AQ, an 83-year-old widowed mother from the UK, was granted a resident visa. Her daughter, a New Zealand citizen, was her only remaining blood relative. When Mrs. AQ's health deteriorated, her daughter brought her to New Zealand, where she modified her home to care for her mother. Mrs. AQ was later diagnosed with dementia and deemed unfit to fly.

Mrs. AQ had entered New Zealand on a visitor visa but became unlawful after it expired. She lodged a humanitarian appeal. The Tribunal found that her inability to live independently and her lack of immediate family in the UK were exceptional humanitarian circumstances that would make deportation unduly harsh. The Tribunal also noted that her considerable assets would make her ineligible for a residential care subsidy, thus reducing the likelihood of her being a burden on New Zealand taxpayers. Her appeal was allowed, and she was granted a resident visa.

Important Matters to Note

When preparing a humanitarian appeal, there are several key points to consider.

Timeframe

There is a strict timeframe for lodging a humanitarian appeal, which varies depending on your specific circumstances. For example, individuals whose visas have expired in New Zealand typically have 42 days from the expiry date to lodge an appeal. However, other cases may have a shorter timeframe, such as 10 or 28 days. If your appeal is filed after the deadline, it will not be accepted. Therefore, you should seek professional advice immediately if you intend to file an appeal.

Evidence

Humanitarian appeals are typically presented through written submissions. It is crucial to compile the strongest possible evidence to support your case. A convincing appeal relies on a well-researched and comprehensive submission backed by credible and verifiable evidence. If you are asked to obtain medical, financial, or any other type of evidence, you should make every effort to secure it.

Residence may not be granted, despite finding of exceptional circumstances

Even when an appeal is successful, not all appellants are granted resident visas. The Immigration and Protection Tribunal (IPT) can issue either a resident visa or a temporary visa of up to 12 months. Temporary visas are typically granted when the appellant's reason for remaining in New Zealand is not permanent.

For example, in AW (Thailand) [2025] NZIPT 506744-745, Mr. and Mrs. AW, who had overstayed their visitor visas, were granted 12-month work visas. Mr. AW's mother, a New Zealand citizen with terminal cancer, was his only family here. Since his connection to New Zealand would end with his mother's passing, the IPT decided that a temporary visa was sufficient, reflecting the non-permanent nature of his humanitarian appeal.

Similarly, in EW (Tonga) [2025] NZIPT 506675-6, the Tribunal granted temporary visas to the EW family—12-month open work visas for the parents and student visas for their children. The family became unlawful after Mr. EW's employer withdrew his sponsorship. The family needed to earn money to rebuild their house in Tonga, which had been destroyed by a volcanic eruption.

The Tribunal's decision was based on the fact that Mr. EW had a clear pathway to secure his own immigration status. His work experience as a prison officer in Tonga made him eligible to apply for a job as a corrections officer in New Zealand. The temporary visa provided him and his family enough time to find employment and pursue a long-term visa on their own.

In cases involving individuals who have been issued with a deportation liability notice, the IPT may only cancel a deportation liability without issuing any new visa, especially if the individual's existing visa rights are still valid and they have a clear path to pursue further visas or residence on their own. 

The Risks of an Unsuccessful Appeal

If your humanitarian appeal is unsuccessful, it will be difficult to obtain future temporary visas. This is because a humanitarian appeal can only be lodged after you become liable for deportation, and this part of your immigration history may negatively affect your eligibility for future visa applications.

Therefore, a decision to file a humanitarian appeal should not be taken lightly. It should only be pursued when truly compelling circumstances exist and there is no other viable way for you to remain in New Zealand.

What if You are Out of Time?

If you have compelling circumstances but have missed the deadline for filing a humanitarian appeal, you might still have an option. Depending on how you became liable for deportation, you may be able to request a visa under Section 61 of the Immigration Act. In some humanitarian cases, Immigration New Zealand (INZ) has granted one-day visas for the specific purpose of allowing an individual to lodge a humanitarian appeal within 42 days of their visa's expiry. If you have been unlawful for more than 42 days, please contact us to discuss your situation.

For an initial no-obligation and confidential consultation regarding a humanitarian appeal, please contact Mathews and Associates.

Disclaimer:

The contents of this article are for general information only and does not constitute legal advice and should not be substituted for professional legal advice obtained from your lawyer. If you would like legal advice, please contact Mathews & Associates to discuss your legal matter.

About the Author:

Charn Tiebtienrat MMus, LLB (Canterbury)

Charn brings a unique blend of legal expertise and entrepreneurial experience to Mathews and Associates Lawyers Limited.

After immigrating to New Zealand in 1995, Charn earned his Bachelor of Laws (LLB) from the University of Canterbury. He was immersed in business from a young age, growing up in a family of successful Whangārei entrepreneurs who owned and operated the highly-regarded Suk Jai Thai Restaurant until late 2022. This experience gave him an invaluable, practical understanding of commercial contracts, commercial leases, employment agreements, and visa applications long before attending law school.

Charn has developed a strong specialization in Immigration Law, training under top practitioners, including two years with prominent Wellington immigration and refugee lawyer Kamil Lakshman. Under her supervision, Charn did high-level immigration work, including successful residence and humanitarian appeals to the Immigration & Protection Tribunal, requests for Ministerial Interventions, and securing the cancellation or suspension of deportation liability for his clients. Charn is known for his thorough approach, carefully assessing a client's history and circumstances to devise the most suitable immigration strategy. He finds Immigration Law a uniquely fulfilling area, as every successful decision means helping his clients and their families settle or reunite in New Zealand.

Joining the firm in July 2025, Charn's business acumen enables him to provide detailed and commercially-aware advice to clients. He continues to practice Immigration Law under the supervision of Director Christopher Perry, and has already achieved successful outcomes for a number of clients.