Section 61 Visas

Grant of Visa Under Section 61: A Solution for those who become Unlawful in New Zealand

Granting a visa under Section 61 of the Immigration Act 2009 is a solution for individuals who have become unlawful in New Zealand due to a lapsed visa. When a visa expires, you can't submit a new application from within the country. While you could leave and apply from overseas, this is not always practical due to travel expenses.

• The Importance of Addressing Your Unlawful Status

Being unlawful is a serious issue. Any time spent in New Zealand without a valid visa can negatively affect future visa applications. If you have not mitigated INZ’s concern about your unlawful immigration history before you depart and then apply for a visa while you are overseas, it can complicate your ability to resolve the situation. This is because INZ can decline any visa application submitted from outside New Zealand without giving an applicant an opportunity to respond to any concerns they may have. 

A Section 61 request provides a pathway to regain lawful status from within New Zealand. This provision gives Immigration New Zealand (INZ) the power to grant any type of visa to an unlawful person, as long as they did not enter on a limited visa and have not been served with a deportation order.

• What to Note About Section 61

A Section 61 request is not a standard visa application. There are no fixed criteria or requirements to meet. The decision is at INZ's absolute discretion. They can refuse to consider your request and are not obligated to provide a reason.

While INZ doesn't have to consider your request, in practice, they do review most of them. The discretionary nature of a Section 61 request means that you need to submit a detailed and compelling argument explaining why you became unlawful and why you should be granted a new visa.

When considering a Section 61 request, Immigration New Zealand (INZ) examines several factors.

Your Immigration History

INZ will review your immigration history. Have you been unlawful before? Have you been compliant with past visa conditions? The faster you act to resolve your unlawful status, the more likely INZ will view you as compliant.

Why You Became Unlawful

This is a critical part of your request. INZ will look at the circumstances that led to you becoming unlawful. You will have a stronger case if you can show:

• You did not deliberately let your visa lapse.
• You meet the requirements for the visa you wish to apply for.
• You took prompt action to legalise your status.

How you present your story is also extremely important. INZ relies on you to provide a comprehensible story with strong evidence to support your case. It is not unusual for individuals with compelling circumstances who attempt to make the request themselves to have it refused simply because it was not well-presented. If your first s61 request is unsuccessful, a second one becomes more difficult because you have now been informed of your unlawful status and have chosen to remain.

Therefore, it is crucial that your initial s61 request is as strong as possible. If you intend to reside in New Zealand long-term and need to make future applications, hiring a professional to represent you is almost always a worthwhile expense.

If you have been unlawful for a significant amount of time, such as more than a year, the situation is more complex. In such cases, it is highly recommended that you seek professional assistance for a s61 request to be made on your behalf.

Circumstances Beyond Your Control

INZ will consider whether you became unlawful due to circumstances outside of your control. Be prepared to explain why you needed to remain in New Zealand, when you realized your status had lapsed, and what you have done to rectify it. You should also explain why you were unable to leave New Zealand to apply for a new visa from overseas.

Your Personal Circumstances and Familial Ties

You will need to provide a detailed explanation of your current situation, including who you live with and your relationship to them. Having strong familial ties to New Zealand, especially with immediate family members who are residents or citizens, is generally a positive factor. This includes partners, as many who have become unlawful have successfully obtained Section 61 visas by demonstrating a genuine and stable relationship with a New Zealand citizen or resident partner.

Pathway to Residency

This is another important factor. Having a clear pathway to residency is usually a positive factor for a Section 61 request. This can include a direct pathway to a resident visa or even a strong case for a humanitarian or residence appeal to the Immigration and Protection Tribunal (IPT). INZ has been known to grant one-day visas under Section 61 to individuals with compelling circumstances to allow them to lodge an appeal.

Your Contributions to New Zealand

You should outline your past, present, and potential future contributions to New Zealand. These contributions are not limited to professional work; they also include familial contributions to New Zealand citizen or resident family members.

Your Character and Health

INZ will assess your character and medical history. If your visa pathway is through your New Zealand partner, their character may also be assessed.

Below are anonymized and generalized examples illustrating the strategic use of Section 61 to successfully mitigate unlawful status and create a pathway to a substantive visa. These cases demonstrate how compelling circumstances, combined with a well-presented argument, led to the exercise of INZ's discretion. We have altered specific identifying facts while retaining the core legal and strategic challenges to protect client confidentiality.

Example 1: Mitigating Unlawful Status to Pursue Partnership

1. Utilizing Section 61 for Partnership Pathway

The Issue: A young person became unlawful after the expiration of their temporary visa due to unforeseen abandonment by their family, leaving them unable to leave New Zealand or regularize their status. Despite their unlawful status, they had since formed a genuine and stable relationship with a New Zealand resident partner.

The Strategy: The representative submitted a detailed s61 request. The argument focused on:

• Mitigating the unlawful history: Proving the initial lapse was not deliberate but a result of circumstances entirely beyond the client's control.
• Establishing Strong Ties: Highlighting the new relationship, cohabitation, and support from the New Zealand partner's family.
• Clear Pathway: Requesting a short-term s61 visitor visa specifically to allow the client to meet the onshore requirements and subsequently apply for a Partnership Visa.

The Outcome: INZ exercised discretion, granting a temporary visa under s61. This successfully allowed the client to regularize their status and be granted a substantive Partnership Visa, leading to a long-term pathway to residence.

Example 2: Utilizing Section 61 to Access Appeal Rights (IPT)

2. Utilizing Section 61 to Enable a Residence Appeal

The Issue: A dependent child, whose unique circumstances (e.g., complex adoption or dependency) were not accepted by INZ under standard residence instructions, was denied a student visa and became unlawful. The representative believed the client had a strong case for a residence appeal before the Immigration and Protection Tribunal (IPT). However, the client needed a current visa to be able to access domestic student fees and to properly prepare the appeal.

The Strategy: A s61 request was made for a dependent child visa, specifically arguing that the client's best interests and access to education should not be denied while the core issue of their right to reside was being tested via the IPT.

The Outcome: INZ granted a longer-term s61 visa (e.g., one year). This highly strategic intervention allowed the client to become a lawful domestic student and pursue a residence appeal on humanitarian or special grounds at the IPT.

Example 3: Utilizing Section 61 for Humanitarian Appeal Window

3. Utilizing Section 61 for Critical Humanitarian Appeal

The Issue: An elderly parent of a New Zealand citizen became unlawful due to an unexpected family crisis (e.g., the NZ citizen sponsor becoming seriously ill), which prevented the family from filing the visa renewal in time. The parent had developed significant health issues while in New Zealand, making it impossible for them to return to their home country to live alone. The only remaining pathway was a humanitarian appeal to the IPT, but the 42-day window for lodging the appeal had expired.

The Strategy: A s61 request was submitted for a "one-day visa". The argument focused on:

• The exceptional humanitarian circumstances (elderly, significant health issues, sole family support in NZ).
• The clear, immediate purpose of the s61 visa: to regularize status for one day specifically to allow the client to legally lodge a residence/humanitarian appeal with the IPT.

The Outcome: Recognizing the extreme humanitarian need and the clear pathway to resolution, INZ exercised discretion and granted the minimal, highly strategic one-day s61 visa, allowing the client to lawfully lodge their appeal, which was later successful.

Contact Mathews & Associates for an initial, no-obligation consultation if you would like to make a request for a visa under s61. 

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.