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Your visa has expired and you are still in NZ. You are now unlawfully in the country and considered an overstayer. That is one of the worst-case scenarios in a migratory journey. You only have two legal options:

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What is “section 61”?

Section 61 refers to a section of the Immigration Act of 2009. It says:

61 Grant of visa in special case

(1) The Minister may at any time, of the Minister’s own volition, grant a visa of any type to a person who-

  (a) is unlawfully in New Zealand; and

  (b) is not a person in respect of whom a deportation order is in force; and

  (c) is not a person in respect of whom a removal order is in force.

(2) A decision to grant a visa under subsection (1) is in the Minister’s absolute discretion.

What is a “section 61 request”?

It’s a request made to the Minister (Actually processed by a senior immigration officer at the INZ Manukau Area Office) to return to lawful immigration status. In other words, this is a last resort procedure.

Should I Apply for Section 61?

You can apply to section 61 if you are in the unfortunate position of being an overstayer you must take all steps to fix it or leave the country. Being an overstayer means:

section 61 visa application
section 61 visa request

What a Section 61 request is NOT?

The main aspect you need to remember about a section 61 request is that it’s not a visa application. This becomes evident as you learn about the “absolute discretion” element described in the second clause. This means the immigration officer is under no obligation to:

How do you apply for a Section 61 request?

You need to prepare a request quickly. A Section 61 request can only be made if the applicant has not received a deportation order, in which case a visa will not be granted.

You cannot apply for a request in the same platform used for visa applications. You have to apply either in paper or via email to INZ. The application itself has no fees.

The application is a cover letter that can be supported by additional documents. You do not need to send your passport. You need to state the kind of visa you are requesting and for how long. Any kind of NZ visa can be granted under section 61.

You can apply both for yourself and secondary applicants which would have been part of the original visa application

There are no official processing timeframes for section 61 requests.

If the request is approved

A successful request means that your visa has been approved in principle. You then have to pay the visa fee for you and anyone else included in the visa. A visa granted under section 61 has the same characteristics as the same type of visa granted in a standard application.

If the request is refused

Decisions of section 61 requests cannot be appealed such as other related immigration rulings. There is a possibility of applying to the High Court for judicial review, but the judge can only consider INZ’s decision-making process and not the applicant’s circumstances. If you continue to be an overstayer you might be served with a deportation order.

How can I prepare a successful section 61 request?

One of the main challenges for migrants being in the unfortunate situation of applying for a section 61 request is the lack of an official guideline from INZ. Unlike a standard visa application, for which the immigration instructions are available for the public to see; there is no in-depth description of the criteria that makes a request successful or which evidence should be presented forward to INZ.
That being said, there is some information that has been shared by INZ from time to time. One of the main instructions shared is about the significance of highlighting the SPECIAL CIRCUMSTANCES of the case. A section 61 request is a last resort and explaining the exceptional elements of the case is crucial. Other elements that should be present are:

How can we help you Apply for Section 61?

Engaging the services of an immigration adviser is one of the best decisions you can make to improve your chances of a successful section 61 request. While you can apply on your own, many migrants have honoured us with the responsibility of taking care of their section 61 requests. The reasoning behind it is the high stakes regarding such a procedure and the urgent nature of them. Here at Visa Advisors, we have years of experience helping migrants to obtain visas through successful section 61 requests.

To book our services, please follow this LINK. Alternatively, you can mail us at advice@visaadvisers.co.nz or call us on 022 023 3681.

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FAQS about applying to section 61

What’s the success rate when applying for section 61?

Section 61 is a request, not an application. There’s no visa category for it and the assessment is on case-by-case basis.
There is no success rate for the Section 61 request. Minister (and INZ) has the power to accept, refuse to accept, approve, or decline the request without giving any reasons.
Though it’s a open portal that all unlawfully individuals can make the request, we only see the ones with special circumstances would have the chance to receive a positive outcome.

What’s the processing time for a section 61?

INZ doesn’t have a timeframe for Section 61 request, it’ll depend on what the requester’s circumstances are and which class/stream of visa has been requested.

How does INZ know that my visa has expired?

INZ as part of the Government Agency has access to all the information a person may have, including the travel movements, visa status, and identity information etc. INZ would know if someone is onshore without a valid visa. These people are liable for deportation and have no right to apply for any visas onshore.