Section 61 Question

[Katsuki92]

Hi all first post here and seeking some advice re s61.

I'm a NZ citizen and has been in a relationship with my current partner for about 6 months. We don't live together. A few days ago I found out I am 4 weeks pregnant (despite taking contraceptive measures...) and after some discussion we decided to keep the baby.

HOWEVER, my partner also confessed to me that he's overstayed in NZ for 6years (!!). He hasn't received any deportation notice / order though.

We are planning to get married in a couple months time. My question now is what the best option is:
1. Apply for s 61 or
2. My partner to leave NZ and apply for a new visa off shore.

In relation to s61, i wonder whether the following factors will be in our favour with INZ:
-my occupation is jurisdiction specific so I cannot work in my partners country even if i wanted to;
-my parents are immigrants but one is citizen and other is PR. Leaving NZ would mean leaving my family behind.
-my salary alone won't be able to raise the baby. Also - how can I work a highly stressful job while taking care of a baby all alone...
-I will need to be on a visa and so will the baby if I am to go to my partners country.

I pretty much just want to get a gist of what INZ looks for in these situations. I understand my partner has breached the law (by farrrrr) but wonder if INZ will be lenient in light of the circumstances.

Any advice will be much appreciated!!!

[JandM]

Has your partner been working in NZ during these six years? I'm asking so that anyone with knowledge on this matter which they might be able to share should have the full picture.

[Karen Phillips]

A lot will depend on why he has overstayed. If he can offer a really good, genuine answer to this, it might help. If he leaves NZ, when gets to the border to leave, he will almost certainly be given an exclusion order, stating that he cannot return to NZ for at least 3 years. I am not sure what his chances are of being granted a section 61 order to remain, given how long he has overstayed. As the partner of a NZer, he might have a better chance. But, as you don't live together, he isn't going to be counted as your partner. The fact that he is the father of your unborn child might help. I think you need help from an Immigration Lawyer as a matter of some urgency!

[JandM]

Thank you, Karen.

(Karen is an LIA who regularly posts on our forum, so her opinion is really worth having.)

[ChrisMwn]

these situations are often difficult. Karen makes some good points. One issue that is always looked at in a S61 situation is eligibility for a visa on an ongoing basis. So you'll need to firm up on your relationship and demonstrate that long term your partner would be eligible for residence.

[JandM]

Thanks, Chris - our other LIA.

[Katsuki92]

Thanks everyone for your answers! sorry about the late response... been busy for the past few days.

JandM - he has been working for the past 6 years but obviously no tax records. He works for his uncle's business and actually earns quite a bit (legal except for the tax part). Not sure how INZ will look upon that though.

I don't think the reason for his overstay is very convincing at all so that probably won't help. With most of the overstayers I've come across personally it's all the same sob story involving a really crappy immigration agent/lawyer. We are moving in together in April and will probably engage an immigration lawyer when my due date closes in.

[JandM]

He works for his uncle's business and actually earns quite a bit (legal except for the tax part). Not sure how INZ will look upon that though.

It's only fair to yourself to be realistic about this. NOTHING is legal about what your partner has been/is doing, since he doesn't have a visa that permits him to live and work in NZ, and all workers in NZ are supposed to pay tax. That's how INZ will look upon it.

For proof of partnership, INZ require evidence that a couple are living together. Until you do this, you have no chance of being regarded as partners. Even if you were in a position to apply for a partner-sponsored work visa, you would require a minimum of around three months' evidence for the application to be taken seriously. If you are not planning on moving in together until April, you are cutting back on the ammunition you will give that immigration lawyer.

[luckylovemom]

Hi Karen Phillips, sorry but you sure even if someone who is overstayer later leave nz voluntarily ,get exclusion order??

As I overstayed nz for one n half years and leave voulantarily but never served with any exclusion order,

[JandM]

You are replying to a thread from 18 months ago, so people may not see your question.

As Karen said at the time, MOST overstayers who eventually leave get given an exclusion order at the border. If you didn't, you are in the minority.