Ministerial Intervention

Special Direction – Ministerial Intervention in Exceptional Cases 

Have unexpected circumstances left you without a pathway to remain in New Zealand?

Section 378(1) of the Immigration Act 2009 gives the Minister of Immigration the power to issue a "special direction." This allows the Minister to grant a visa, waive requirements, or remove a deportation order for a person or group of people. This power has been delegated to the Associate Minister of Immigration and a team of delegated decision-makers (DDM).

It is important to understand that a request for a special direction is a last resort. The Minister has absolute discretion, and there is no guarantee that your request will be accepted or considered, even if your circumstances are compelling. The Minister's willingness to intervene can also change with a change in government. Since every Minister is different, a case that one Minister might have intervened in may not receive the same consideration from a new Minister. Therefore, we only accept instructions for special direction in cases with truly compelling circumstances. If another pathway to residence or a visa is available, you should pursue that option first.

Special Direction vs. IPT Appeal. Which one is more practical for your circumstances?

The Immigration and Protection Tribunal (IPT) is another avenue for considering residence and humanitarian appeals. Unlike a special direction request, the IPT is obligated to consider your appeal and apply relevant legal principles to your case. For many with "special" or "exceptionally humanitarian" circumstances, an IPT appeal may be a more practical option. During our initial consultation, we can help you determine the best path forward.

However, in certain situations, an IPT appeal is not an option. For example, if a principal applicant for residence dies, their family members cannot lodge a residence appeal with the IPT because they are not the principal applicants. In such a case, a request for a special direction is the only appropriate course of action, particularly when the circumstances are both exceptional and humanitarian.

While there are no clear legal principles for a compelling special direction, as the Minister has "absolute discretion" to intervene or not, there are certain guidelines the Minister and the Delegated Decision Makers (‘DDM’) will consider.

• Your Immigration History

The team preparing the brief will thoroughly analyse your immigration history, including how you entered New Zealand and what visas you currently or previously held.

• Have you tested your eligibility?

Your request will likely be denied if you have not yet tested your eligibility. For example, if you have the qualifications and work experience for a visa but have not yet applied for a job in New Zealand, the Minister's office will likely advise you to first try applying for jobs and test your eligibility that way.

• Familial Ties to New Zealand

The brief will outline your family members in New Zealand, their immigration status (e.g., citizens or residents), their occupations, and their circumstances. However, a lack of family ties does not necessarily mean the Minister will not intervene, as demonstrated by successful cases below where the circumstances were exceptionally humanitarian.

• Your Contributions to New Zealand

Your contributions, both past and present, are highly relevant. It is important to outline the contributions you have made and the potential you will make to New Zealand if you are allowed to remain. These contributions are not limited to professional work or skills; familial contributions to New Zealand citizen or resident family members are also considered.

• Circumstances of your Request

It is crucial to explain the circumstances that led you to seek Ministerial intervention. The brief will need to address what went wrong, whether an unfortunate and unexpected event occurred that caused you to lose your pathway to a visa, and whether the circumstances are special, exceptional, or humanitarian. Your fault in the situation will also be examined.

• Your Character and Health

The team will inform the Minister about your character and health. If your visa pathway is through a New Zealand partner, the brief may also include information about your partner's character.

• No Possibility to Resolve Immigration Predicament via other Means

It's unlikely the Minister will intervene if there's another way to resolve your immigration status. For instance, if you're living with a New Zealand citizen but have become unlawful, you should try to legalize your status by requesting for a visa under Section 61. In this scenario, you should not write to the Minister asking for a special direction.

However, if you've been served with a deportation liability notice, the Section 61 team cannot consider your case. In this situation, requesting a special direction may be your only way to resolve your immigration status.

• Best Interests of the Children

A key point to include is whether any children would benefit from your presence in New Zealand and how they would be affected if you are unable to remain.

• Consequences to Your New Zealand Family or Community

You should explain what would happen to your family members in New Zealand if you cannot remain. If your contributions are professional, you should explain whether you are difficult to replace and if your employer or community would be able to find a suitable replacement.

Below are anonymised and generalized examples illustrating the types of truly compelling, exceptional circumstances that have successfully resulted in Ministerial Intervention. We have significantly altered specific identifying facts to protect client confidentiality while retaining the core legal and humanitarian challenges.

Example 1: Intervention Due to Tragedy Affecting Eligibility

1. Intervention Due to Unforeseen Tragedy

The Issue: An immediate family member was applying for residence as a secondary applicant (e.g., a spouse or dependent child). Their primary pathway was abruptly lost when the principal applicant passed away unexpectedly before the visa could be granted. As a secondary applicant, they had no standing to lodge an appeal with the IPT, and their temporary visa pathway was severed.

Compelling Grounds: The family was well-settled in New Zealand, with the surviving spouse working and contributing to the economy, and the child excelling in school. The loss of the principal applicant was a tragic, unexpected event that created an exceptional humanitarian predicament entirely outside the family’s control.

The Outcome: The submission focused on the humanitarian necessity to allow the family to remain established. The Associate Minister’s office exercised discretion to allow the residence application to proceed or be approved for the surviving family members as an exception to standard instructions, acknowledging their strong ties and contributions.

Example 2: Intervention Due to Unforeseen Life-Altering Event

2. Intervention for Loss of Pathway and Extreme Uncertainty

The Issue: A family came to New Zealand for the principal applicant to pursue a pathway (e.g., study or work), intending to lead to residence. Due to a sudden, life-altering event involving the principal applicant shortly before the final visa stage, the entire family lost their ability to meet the requirements for the next visa, leaving them in a state of extreme uncertainty and potential deportation.

Compelling Grounds: The surviving spouse was gainfully employed and demonstrated excellent settlement (strong employer references). The dependent child was highly integrated into the local school system. The representative argued that the family should not be penalized for an unforeseen, catastrophic event that was entirely outside their control, emphasizing their valuable established ties and positive contributions.

The Outcome: The Associate Minister issued a special direction permitting the surviving spouse and child to apply for residence as an exception, recognizing the humanitarian weight of the family's situation and their proven ability to contribute to New Zealand.

Example 3: Intervention to Waive Requirements for Meritorious Contribution

3. Intervention to Waive Technical Requirements for Meritorious Contribution

The Issue: A key member of an ethnic or community group (e.g., a religious or cultural leader) lost their eligibility for residence due to two technical requirements: age and English language skills. This loss of eligibility was directly linked to the individual's altruistic service to the community during a period of crisis, which prevented them from focusing on their English language studies before exceeding the maximum age limit for the category.

Compelling Grounds: The submission highlighted the client's meritorious contributions to the community, arguing that their service outweighed the technical inability to meet the instructions. It was explained that the client's duties were performed in their native language and that their value to the community was not diminished by their limited English or age.

The Outcome: The Minister accepted the argument that the client's actions created an exceptional circumstance. A special direction was granted to waive both the age and English language requirements, enabling the residence application to be approved based on the client's significant and continuing contributions to New Zealand.

Conclusion

The above successful cases illustrate that special direction request is not an appropriate strategy for every client. There should be something special about your case in some ways. There must be a clear explanation as to why you have lost pathway to remain, and why the Minister should exercise his/her intervention in your case.

Contact Mathews & Associates for an initial, no-obligation consultation for us to evaluate your circumstances whether you may have a compelling case for Ministerial Intervention.

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.