The two routes at a glance
- Visa expiresDay one of unlawful status
You have an obligation to leave New Zealand and are liable for deportation.
- Humanitarian appealWithin 42 days
An appeal to the Immigration and Protection Tribunal on humanitarian grounds. The tribunal cannot extend the deadline, and a section 61 request does not pause it.
- Section 61 requestNo deadline, but it weakens with time
An email to INZ setting out your case, possible only until a deportation order is served.
- Senior officer decidesNo published time frame
An absolute discretion: no obligation to consider the request, no reasons, and no appeal against a refusal.
- Visa expiresAt the same time, within 42 daysHumanitarian appeal to the tribunal
- Section 61 request
- Senior officer decidesIf refusedJudicial review of the process only
Find the parts of this guide that match your facts
For educational and illustrative purposes only. This is not immigration advice, and no warranty is given as to its appropriateness or accuracy. If in doubt, talk to an immigration adviser or an immigration lawyer about your specific circumstances.
Who can make a section 61 request
Three conditions come straight from the section. You must be:
- Unlawfully in New Zealand
- Not subject to a deportation order in force
- Not subject to a removal order
Once a deportation order has been served, section 61 is closed, which is why timing matters so much.
The power is exercised by senior immigration officers under delegation, and INZ says all requests are handled by a senior officer at its Manukau office.
Absolute discretion has a precise legal meaning:
- The matter may not be applied for as of right
- The decision-maker has no obligation to consider a request or inquire into your circumstances
- No reasons need be given beyond the fact that the discretion applies
The only challenge is judicial review in the High Court, which examines the process, not the merits.
The 42-day clock running beside it
The moment you become unlawful, you have an obligation to leave New Zealand and are liable for deportation. You also gain a right most people never use:
“A person unlawfully in New Zealand may, not later than 42 days after first becoming unlawfully in New Zealand, appeal on humanitarian grounds against his or her liability for deportation.”
The tribunal cannot extend that deadline, and a pending request does not stop deportation action either. If your circumstances are strong enough to argue humanitarian grounds, take advice inside the 42 days, because after they expire section 61 is usually all that is left.
How to make the request
- Application form
- None
- Fee up front
- None
- Published time frame
- None
INZ has no form for it: put the request in writing and email it to s61@mbie.govt.nz, attaching a copy of your passport's personal details page and any supporting evidence. INZ asks for:
- Your personal details and client number
- An explanation of why you are still in New Zealand after your visa expired
- Your personal circumstances (family, work, community)
- How staying could contribute to New Zealand
- What visa you want and for how long
If INZ approves the request in principle, it will contact you for payment before issuing the visa.
Because officers can decide solely on what you submit, the request has to be complete the first time: identity, history, an honest explanation of how you became unlawful, evidence of relationships, employment and community ties, and a clear ask. This is the single highest-leverage place for professional help: a licensed immigration adviser or immigration lawyer who has run section 61 requests knows what a senior officer needs to see. INZ publishes no time frame for deciding requests.
How many requests succeed - the numbers INZ does not publish
INZ publishes no approval statistics for section 61: no processing standard, no success rate, nothing in its processing-time data. The only public numbers come from the Official Information Act. Figures released in mid-2025, covering 2020 to mid-2025, recorded:
- Requests
- More than 34,000
- Visas granted
- Over 18,000
- Resident visas granted
- Around 1,266
That is an overall grant rate of roughly half. More than 70% of the visas granted were temporary, over 13,000 of them work and visitor visas, against around 1,266 resident visas across the whole period.
- A grant rate across tens of thousands of requests says nothing about any single case
- The pool mixes brief accidental overstays cured within days with long-term unlawful stays
- The majority of grants put people onto short temporary visas rather than resolving the underlying situation
- The figures end at mid-2025 and say nothing about current decision-making
Section 61 is a genuinely live discretion: INZ grants visas under it constantly, and a complete, well-prepared request is not a formality addressed to a closed door.
Officers may decide solely on what was submitted, with no obligation to seek comment before saying no, and may weigh the fact that a person could instead leave voluntarily and apply from offshore.
Risks, bans and the future-application shadow
| What happened | Ban |
|---|---|
| Deported within 12 months of becoming unlawful | 2 years |
| Deported later than that | 5 years |
| Deported after being unlawful a second time | 5 years |
| Left voluntarily before a deportation order was served | No statutory ban |
INZ's own guidance says voluntary departure preserves future eligibility in a way deportation does not. That trade-off is the central strategic decision in most overstay cases.
A period of unlawful stay also shadows future applications: immigration officers assessing whether you are a bona fide applicant must take into account previous overstaying and breaches of visa conditions. Bare overstaying is not itself a character issue under the character instructions, which are triggered by convictions, but the credibility cost is real, and each repeat makes the next visa harder.
Special directions and law changes to watch
| Power | What it is for |
|---|---|
| Section 61 | A visa for a person unlawfully in New Zealand, as a matter of absolute discretion |
| Section 61A (since November 2025) | Visas for people outside New Zealand or holding temporary visas, even contrary to immigration instructions: a different tool for different facts |
| Special directions (section 378) | Ministerial directions to officials on matters the Act specifically contemplates, such as waiving prescribed requirements |
As introduced, the Immigration (Enhanced Risk Management) Amendment Bill would replace section 154 and narrow the humanitarian appeal rights of some unlawfully-present people. The Education and Workforce Committee reported it back on 7 August 2026, and it had not passed on 7 November 2026. The rules described here are those in force on that date; if you are unlawful now, acting under the current rules is safer than waiting.
Check your understanding
These questions check what this guide says. They say nothing about your own case.
For educational and illustrative purposes only. This is not immigration advice, and no warranty is given as to its appropriateness or accuracy. If in doubt, talk to an immigration adviser or an immigration lawyer about your specific circumstances.
Frequently asked questions
Sources
- Immigration Act 2009, s 61 (grant of visa in special case)
- Immigration Act 2009, s 11 (meaning of absolute discretion)
- Immigration Act 2009, s 154 (deportation liability; 42-day appeal)
- INZ: if you stay in New Zealand after your visa expires
- INZ operational manual A23 (section 61 requests)
- INZ operational manual E5.10 (bona fide applicants: prior compliance)
- Immigration (Enhanced Risk Management) Amendment Bill 267-2, as reported from the Education and Workforce Committee on 7 August 2026 (pending)
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