Section 61 requests — getting a visa while unlawfully in New Zealand

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, and 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, and no reasons need be given beyond the fact that the discretion applies. There is no appeal against a refusal; 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: an appeal to the Immigration and Protection Tribunal on humanitarian grounds, lodged not later than 42 days after first becoming unlawful. The tribunal cannot extend that deadline, and making a section 61 request does not pause it — nor does a pending request stop deportation action. 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

INZ's process is deliberately simple: 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, and what visa you want and for how long. Do not send credit card details; 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 adviser or lawyer who has run section 61 requests knows what a senior officer needs to see. INZ publishes no time frame for deciding requests.

Risks, bans and the future-application shadow

Overstaying carries consequences beyond the immediate problem. If you are deported within 12 months of becoming unlawful, a 2-year ban on returning applies; deported later, or unlawful a second time, it is 5 years. But leaving voluntarily before a deportation order is served attracts no statutory ban — INZ's own guidance says voluntary departure preserves future eligibility in a way deportation does not. That trade-off, between staying to fight and leaving to preserve the record, 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 — those 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

Section 61 is sometimes confused with special directions under section 378 — ministerial directions to officials on matters the Act specifically contemplates, such as waiving prescribed requirements. Since November 2025 the Act also contains a new section 61A power to grant visas to people outside New Zealand or holding temporary visas even contrary to immigration instructions — a different tool for different facts. And the Immigration (Enhanced Risk Management) Amendment Bill before Parliament would replace section 154 and narrow the humanitarian appeal rights of some unlawfully-present people. The rules described here are current at July 2026; if you are unlawful now, acting under the current rules is safer than waiting.