Master prompt
Section 61 request + Section 49 mitigation — overstayer recovery (NZ)
Client is unlawfully in NZ (overstayed or visa cancelled). Map the Section 61 discretionary request, Section 49 condition-breach mitigation, and removal liability under Section 154.
New ZealandVisa extensionSection 61Section 49OverstayerUnlawfulRemoval liability
[CLIENT_NAME] became unlawfully in NZ on [VISA_EXPIRY_DATE]; today is [CURRENT_DATE]. NZ has no statutory restoration window — recovery is via Section 61 discretionary request only.
§1 — IMMEDIATE TRIAGE
Days unlawful = compute days between [VISA_EXPIRY_DATE] and [CURRENT_DATE].
Three pathways:
PATH A — Section 61 Request (Immigration Act 2009)
• Discretionary; INZ "may" grant a visa to a person who is unlawfully in NZ
• No statutory criteria; pure ministerial/officer discretion
• Stronger cases: compelling circumstances + genuine inadvertent lapse + clear pathway forward
• Weaker cases: deliberate overstay + no compelling factors + no clear visa eligibility
PATH B — Departure under Section 154 (deportation liability)
• If client has been here unlawfully > 42 days continuously: liable for deportation (S.154 (1)(a))
• Voluntary departure preferred to enforced removal
• Once deported under enforced removal: 5-year prohibition (S.180); waiver discretionary
• Voluntary departure within reasonable time: no statutory exclusion typically, but INZ records the breach
PATH C — Section 49 Mitigation (condition breach)
• If visa is technically still valid BUT client has breached conditions: Section 49 cancellation pending
• Apply to vary conditions or rectify breach BEFORE cancellation
• Once cancelled: client becomes unlawful + Section 61 territory
State the recommended path with one-sentence rationale.
§2 — SECTION 61 REQUEST PROCESS
A Section 61 request is typically filed via:
• Letter + INZ 1015 form (Specific Purpose Visa application) OR
• Online application with cover request invoking S.61
Document pack:
A. Cover letter invoking Section 61 + identifying intended visa pathway
B. Sworn statement / declaration from [CLIENT_NAME]:
• How status was lost — use [REASON_FOR_LAPSE] verbatim, active voice
• Why client could not act earlier
• Steps taken upon realising
• Future intent
C. Compelling-factor evidence: [COMPELLING_FACTORS]
• Medical certificates from NZ-licensed doctor
• Birth certificate of NZ-citizen child
• Marriage/partnership evidence (joint accounts, lease, photos)
• Long-residence evidence (lease history, IRD records, school enrolment)
• Letters from NZ community connections
D. Underlying visa eligibility evidence (the visa being requested under S.61, e.g. visitor, partner, student)
E. Character + health updates if outdated
F. Police certificate from country of citizenship (within 6 months)
G. Form INZ 1146 if IAA adviser acting
H. Application fee per the underlying visa class (S.61 request itself has no separate fee)
§3 — DECLARATION + CONTEXT (350-500 words)
§3.1 — Frame request (60-80 words)
"I, [CLIENT_NAME], am unlawfully in New Zealand from [VISA_EXPIRY_DATE]. I respectfully request that INZ exercise its discretion under Section 61 of the Immigration Act 2009 to grant a [intended visa class] visa, for the reasons set out below and supported by enclosed evidence."
§3.2 — How status was lost (100-150 words)
• Active voice ("I failed to lodge", "I missed the date")
• Use [REASON_FOR_LAPSE] verbatim
• Specific dated facts
• Documentary evidence cross-referenced
§3.3 — Compelling factors (100-150 words)
• Use [COMPELLING_FACTORS] verbatim
• NZ-citizen / resident family
• Length of NZ residence + integration
• Health / mental health / dependant care
• Best interests of NZ-citizen children (s.6 — UN Convention on the Rights of the Child)
• Partnership / marriage to NZ citizen / resident
§3.4 — Future intent + visa eligibility (80-120 words)
• Specific visa pathway requested (visitor, partner-based, student, etc.)
• Why client qualifies for that visa class
• Departure plan if S.61 declined
• Engagement of IAA adviser for ongoing compliance
§3.5 — Closing (30-40 words)
• Request grant of S.61 visa
• Aware of consequences if declined
§4 — IF UNAUTHORIZED WORK DURING GAP
If No is "Yes":
• Full disclosure required — IRD records visible to INZ
• Cease work immediately
• Employer may face penalties under Immigration Act + Employment Relations Act
• Concealment = misrepresentation; lifetime risk
• Mitigation: brief explanation; undertaking; possible labour exploitation context (if exploited, S.61 mitigation strengthens)
§5 — DEPORTATION LIABILITY UNDER SECTION 154
If unlawful > 42 days continuously:
• Deportation liability triggers automatically under S.154
• Deportation order may issue at INZ's discretion
• Voluntary departure preferred:
— Within ~7 days of S.154 notice: voluntary departure permitted; future-eligibility for visas not statutorily barred (case-by-case INZ assessment)
— Beyond 7 days: enforced deportation possible; 5-year prohibition under S.180
Recovery via S.61 is best filed BEFORE S.154 notice issues. Once S.154 issued + deportation order made: appeal to Immigration & Protection Tribunal (IPT) within 28 days on humanitarian grounds (S.207).
§6 — IMMIGRATION & PROTECTION TRIBUNAL (IPT) APPEAL
If S.154 deportation order issued, OR S.61 declined + still unlawful:
• Appeal to IPT within 28 days
• Grounds:
— Facts not justifying departure
— Exceptional humanitarian circumstances + unjust/unduly harsh if removed
— Best interests of NZ-citizen child
• Procedure: written submissions + sometimes oral hearing
• IPT determines de novo
• Further appeal to High Court on point of law only
§7 — OUTCOME SCENARIOS
• S.61 granted: visa issued (typically short-duration; client must apply for stable visa class promptly)
• S.61 declined: client remains unlawful; departure required; future S.61 reapplications possible but harder
• Deported under S.154: 5-year prohibition under S.180; waiver discretionary; future visa applications must address prohibition
• IPT appeal succeeds: deportation cancelled; visa typically granted
• IPT appeal fails: depart promptly or face enforced removal
§8 — IRON RULES
• S.61 has NO STATUTORY CRITERIA — outcome is pure discretion
• Do NOT promise client a specific outcome
• Concealment of unauthorised work / family relationships / identity = misrepresentation = lifetime risk
• Multiple visa breaches generally not curable via S.61
• If client has NZ-citizen minor child: highlight child's citizenship + best interests
• Engage IAA adviser early — many S.61 requests filed without legal help fail for evidentiary inadequacy
End with: "DRAFT NZ S.61 / S.49 recovery package — for IAA-licensed immigration adviser review. S.61 is discretionary; do not raise client expectations beyond evidence. Cross-check current Operational Manual chapter A4 on S.61 procedure + S.154 deportation liability timeline + S.180 prohibition periods before submission. Voluntary departure may be cleaner than recovery in many cases."Unlock the vault to see the full prompt