By David Fisher, Founder & Director of Immigration Chambers
Residency applications have strict requirements, and Immigration New Zealand (INZ) may turn down your application if these requirements are not met completely. However, it may not be the end of the road, because applicants have a statutory right of appeal to the Immigration and Protection Tribunal. The Tribunal will assess the decision to decline your visa and determine whether Immigration New Zealand has followed correct procedure, with a mind to assessing the correctness of the decision. Additionally, the Tribunal can assess any special factors about your case that would warrant the grant of residence even if you do not meet the normal requirements under the applicable policy. This is what is known as “special circumstances”, and if such circumstances are found then the Tribunal may consider your case as an exception to the residency visa requirements.
What are special circumstances?
Special circumstances are legally defined as “circumstances that are uncommon, not commonplace, out of the ordinary, abnormal”. The Tribunal will consider all the factors in your case in deciding whether the circumstances, as a whole, are special. This will include considering the reasons that the requirements for the application were not complied with. The Tribunal may also consider other reasons for why your application should be approved, including any strong connections that you may already have with New Zealand. If the Tribunal agrees that your case has special circumstances, it will likely recommend that the Minister of Immigration considers making an exception to the residency requirements for your application.
Special circumstances might be found if you have family members already living in New Zealand, who you are very close to. Similarly, if you don’t have any family connection with your home country, this could also be considered a special circumstance.
The Tribunal is also required by International Law to prioritise the best interests of any children who may be affected by the application. In particular, children should not be separated from their parents or siblings. This means if you have children who you would be separated from without a residency visa, then your appeal may be successful. You may also be able to appeal if your children would have to leave New Zealand with you and leaving would go against their best interests.
The Tribunal’s decision can also include compassionate reasons for approving a residency application. This is especially relevant if a person could not comply with the requirements of residency for reasons that were outside of their control, for example if you had to leave New Zealand and could not return.
Special circumstances have also been found where a person is particularly vulnerable and struggling because of the stress of not having a visa. Alternatively, if you will really struggle in finding employment, or will face stigma and discrimination in your home country.
A Meaningful Contribution to New Zealand
Sometimes, people’s applications will have special circumstances because of their potential to make a meaningful contribution to New Zealand. A “meaningful contribution” is often found through a combination of a person’s education, work experience, and effort in connecting with the community.
For example, a person who has a high level of education and work experience, and has made an effort to join professional organisations in New Zealand, may have special circumstances in their residency application. It is also very helpful if you have work experience in New Zealand in your area of education, as this shows that you have made an effort to transfer your credentials to the New Zealand workforce.
A meaningful contribution doesn’t have to be found in the workforce – it can also exist in the community. For example, if you have strong ties to your community in New Zealand through a church group or volunteer your time for community or school projects.
The limits of this appeal
A “special circumstances” appeal will likely not be successful if you and your family can be resettled in your country of origin. The Tribunal will consider all the factors which mean your application was declined, and they will evaluate whether these factors are outweighed by the circumstances of your case. Any special circumstances must be very uncommon, and must point strongly towards an exception being made for your application.
It is important to be aware that this appeal is rarely successful. The Tribunal is cautious about approving residency applications which don’t meet the INZ requirements. A successful appeal also doesn’t guarantee an application being approved; it just means the Minister will consider making an exception for your application.
However, it is not impossible to have a successful appeal. Your appeal will be much stronger if you have a broad range of factors which point to why your application should be approved.