Character waiver etc...

[chasingfearne]

Hi there,


This is my first time posting on this forum :-)


I am a NZ citizen living in London. I have been with my partner three years; we have a child together. We are about to go through the process of applying for my partner's residency visa, as we plan on moving back home at the end of 2013.


Now, my partner has a criminal history - he has had a number of warnings (sigh) for cannabis possession, the last of which was about four years ago. I know precisely what this means, having done my research. He will require a character waiver. The NZ Immigration website describes this as a 'Special Direction' and from what it says on there, it appears that you need to apply for this *before* actually initiating the process of applying for a visa. However, this seems to contradict some of what I have read on this forum.


I have gotten my information from here: http://www.dol.govt.nz/immigration/k...base/item/1184.


Has anyone gone through this process before? I know that various new rules have recently been implemented, but I am also aware that the phrase 'special direction' has popped up on the website before.


I am really nervous about getting this right. I just want to go home.


The other thing I'm unsure about is whether to apply for the working visa for my partner first, and then go for residency once his two years expires. But then there is no guarantee they will let him stay....


I would appreciate any help/advice anyone has to offer.


Thanks :-)

[JandM]

Hello and welcome.

You may be getting ahead of yourself. The page you linked to links again to where there is mention of Section 15 and 16 of the Immigration act. Here's their explanation of that.

Summary of Terms
Sections 15 and 16 of the Immigration Act 2009

Section 15 of the Immigration Act 2009

Under section 15 of the Immigration Act 2009 we will not grant you a visa, entry permission or a visa waiver if:

•you have been convicted and sentenced to imprisonment for 5 years or more (this applies even if any of your offences have later been taken off the record),
•in the past 10 years you were convicted and sentenced to imprisonment for 12 months or more,
•you are subject to a period of prohibition on entry to New Zealand under section 179 or section 180 of the Immigration Act,
•you have been removed or deported from any country, including New Zealand,
•you are excluded from New Zealand under any enactment.

Section 16 of the Immigration Act 2009

Under section 16 of the Immigration Act 2009 we will not grant you a visa, entry permission or a visa waiver if:

•you are a member of a terrorist entity designated under the Terrorism Suppression Act 2002, or
•the Minister has reason to believe you:
◦are likely to commit an offence in New Zealand that is punishable by imprisonment; or
◦are, or is likely to be, a threat or risk to security; or
◦are, or is likely to be, a threat or risk to public order; or
◦are, or is likely to be, a threat or risk to the public interest.

http://glossary.immigration.govt.nz/section15and16.htm

You talk about his having been warned by the police for cannabis use (not dealing, I assume, as this would be more serious and not stop at a warning) - has he had any terms of imprisonment that would make him fall under this act?

The information you have found seems to come from an area of law that comes into force if someone has some serious breaches of the law, not slight brushes.

[chasingfearne]

Hello and welcome.

You may be getting ahead of yourself. The page you linked to links again to where there is mention of Section 15 and 16 of the Immigration act. Here's their explanation of that.

http://glossary.immigration.govt.nz/section15and16.htm

You talk about his having been warned by the police for cannabis use (not dealing, I assume, as this would be more serious and not stop at a warning) - has he had any terms of imprisonment that would make him fall under this act?

The information you have found seems to come from an area of law that comes into force if someone has some serious breaches of the law, not slight brushes.

Thank you so much for your reply; it is much appreciated.
It's only ever been cannabis use - no dealing, ever. No imprisonment; he has, however, received a fine, but this was in relation to one conviction that he does have which was due to civil disruption…basically, he was with a bunch of drunken friends (ironic as he doesn't drink) who ended up getting in a brawl, and they were all arrested - a case of punishment of association I guess. So there was that, and the cannabis warnings. I know the latter will definitely come up on his police certificate as they were mentioned when he went to court for the brawl. It's very upsetting because I know that his fault in this would have been being too passive to stand up to his friends and stop them :/ I think this happened about four years ago now.

[chasingfearne]

Is it therefore possible that he would be considered a risk to public order?

[JandM]

In answer to your last question, maybe, but it's unlikely at the level you describe.

What has usually happened (as you've perhaps seen on the old threads on this site) is that he needs to come clean to INZ (as in, list what there is, frankly) about what does come up in the police check. Either with the application in a cover letter, or when the CO asks for his comments, he needs to give the background to the incidents in question. This is often a matter of saying (in a lot more words and detail), 'I was younger then, and stupid not to stand up to what the crowd were doing, and of course I can see now this was a big mistake, as you can tell from the way my life has turned around since.' He needs to be humble and apologetic. He will need to say in what way he is now different. He will need to find people who know him now, who have some standing in the community, to give him a character reference.

And then you hope for the best.

[chasingfearne]

I have already helped him to put together such a letter. I, too, have written a very lengthy letter (as his sponsor), and we have arranged for at least 6 references from friends and family. Do you think this is enough? How many references would be considered a good number to make a solid case? I'm sorry if I'm waffling and asking lots of questions; I'm just so worried that we may end up stuck here.

[JandM]

It sounds as if you have done everything you should - everything you can. Now you're going to have an uncomfortable time while you wait for reactions. Hang in there.

[jawnbc]

If you have anything on your police checks, you'll be in big trouble if you don't disclose them upfront. I won't go into details but I had something on mine from over 20 years ago. I disclosed it and was asked to explain the circumstances. In my instance a fine was paid, After explaining in detail my CO advised "a character waiver won't be necessary." And that was it. But it was one thing only from years ago with a tiny fine.

[chasingfearne]

Oh there is no way we wouldn't disclose anything. I know that the best approach is to be as honest as possible. My concern isn't so much the *type* of situation in which he has gotten himself in trouble; it's more the number of them. I think there are 6 in total, the majority of which are warnings. I doubt if there were a single cannabis possession warning on his record it would require a character waiver (though we would still disclose it), but the fact that there are many is the main source of concern here. So yeah, fingers crossed we can convince them it was all down to a 'misspent youth'...

[jawnbc]

It might be worth using a good immigration consultant or immigration lawyer then.