How a minor criminal conviction can get you deported…
As a migrant, did you know if you are convicted of a minor charge such as drink driving or wilful damage you can be deported? Even if you’re a resident?
That’s because under NZ law, any minor conviction (a conviction which carries a minimum sentence of up to three months in jail) committed in the first two years of residency automatically results in deportation. This isn’t something many are aware of – not only migrants, but many in the legal sector too. So, what do you need to know? And what can you do? New Zealand Immigration Law’s principle lawyer Aaron Martin and criminal lawyer Rebecca Keenan from Liberty Law share what you need to know.
How committing a minor offence can lead to a Deportation charge
Deportation cases due to committing a minor offence is something Aaron sees often. Around 95% of all deportation cases he deals with are related to criminal offending – the vast majority are due to drink driving in the first two years of residency.
Other examples of minor convictions are negligent driving, common assault, wilful damage (such as destroying property which is not your own), possessing a small amount of cannabis, or disorderly behaviour (which can be for something as petty as peeing in a bush in public). If found guilty, an offender would at most be sentenced with a fine, community service, or home detention. If drink-driving was the issue, disqualification from driving is also likely. But if you’re a migrant within your first two years of residency, as well as your sentence, you’ll also be deported.
Why? It all comes down to out-dated immigration thresholds and laws
The laws regarding minor criminal offences were first drafted back in the 1960’s, a much more conservative era in legal terms. When the law was drafted, three months imprisonment was a likely possibility for a minor offender. Being deported for such an offence was also reasonable.
But times have changed, and the weight of these crimes is not nearly as heavy. Aaron states that nowadays, “there’s no way in a million years that people would get imprisonment for that level of offence.” Even official sentencing guidelines advise judges against such strict punishment for low-level offences.
But the criminal threshold of these laws is still relevant from an immigration perspective. To get a Resident Visa, one must meet Immigration New Zealand’s character threshold. This threshold works on the maximum sentence the judge is allowed to punish with, regardless of what sentence is actually given.
Aaron believes this needs to be reviewed. It’s not only unfair for those facing deportation, the current law is resulting in unnecessary work for the immigration minister. “You wouldn’t have to have a whole team of people assessing a case because old Johnny Blow went and got drunk and hopped in a car! The world’s moved on but the statutory provisions that make people liable for deportation and criminal law penalties are still old-world law from a bygone error and it needs to be relooked at.”
Liberty Law’s Rebecca Keenan agrees. “People are just getting used to the rules and regulations of New Zealand and getting settled. To comprehend that a minor traffic conviction is actually going to impact all of the work that they’ve put in to moving to New Zealand is quite a high price.”
To add to the issue, deportation liabilities aren’t always immediate. “It can hang over [the offender’s] head for 5-10 years depending on the charge. That’s another consequence – a punishment on top of what they might be getting at the criminal court. It’s like punishing them twice.”
Aaron is currently working on such a case. “This man has been living here as a resident for eight years. He had a conviction from his first 2 years of residency, but it wasn’t seen by Immigration New Zealand. It’s only when he had to support his wife’s case and filled out a form that questioned if he had been convicted of a criminal offence did they find out.”
Why it’s crucial to get advice from an immigration lawyer
While the fate of an offender is in the hands of the judge, deportation doesn’t happen within the court. Immigration New Zealand processes the liability on receipt of the conviction. Because of this, many duty solicitors and lawyers aren’t aware of the consequences of a guilty plea. In fact, it’s common practice to advise an offender to plead guilty in order to get diversion. This will keep it off the offender’s criminal record, but it doesn’t mean much to Immigration. Migrant offenders will still be liable for deportation.
Rebecca’s view is that Duty Solicitors need to be educated about this. “When you give your plea, you have to advocate to the court that they’re going to be making that sentencing application in relation to immigration. If the defendant doesn’t understand the implications and the duty solicitor doesn’t understand the implications they’ll just deal with it as any person who has citizenship – fine and disqualification. Those secondary implications of immigration aren’t considered until it’s too late”.
If you have been charged, it’s important that you are careful in the steps before the judge’s final decision. A duty solicitor might be more “economic”, but they lack the knowledge and experience of an immigration or criminal lawyer who knows their way around the immigration system. These lawyers will help you appeal against the sentence so you can be discharged without conviction. Then, you will receive an acquittal and the liability will disappear.
Avoiding deportation after being convicted is much harder, but it can still be done. A criminal barrister can appeal against the sentence, or you can go back to the district court and ask for a re-hearing. A re-hearing generally requires some important matter that wasn’t put in front of the judge at the time or humanitarian circumstances that are exceptional.
Your last chance is a questionnaire that will be sent to you investigating your deportation liability. Many believe they don’t need a lawyer to fill out the questionnaire, which Aaron advises is a big mistake. “People don’t understand that it is very last boat departing the port. A lot of people miss the opportunity. We’ve then got to try and stop everything so we can prepare a better case – which is much harder.”
Resolutions use this questionnaire so they can prepare a briefing for the Immigration Minister to decide one of three options. Cancel the deportation liability, suspend the deportation liability for up to five years – but with certain conditions (which can be anything they dream up), or, issue the notice.
It is essential this situation is dealt with carefully – prohibition is permanent. If you or someone you know is in this situation we strongly recommend seeking the correct legal advice, before you make any irreversible decisions. Both Aaron Martin and Rebecca Keenan are experienced in these types of cases, and understand the right procedures to follow to help you avoid deportation.
If you’d like to contact our principle Immigration Lawyer, Aaron Martin, you can do so here.
If you’d like to contact Liberty Law’s Rebecca Keenan, you can do so here.