Overstayed Your Visa in New Zealand?A Complete Guide to Section 61 and How It Can Restore Lawful Status | visa overstay unlawful in New Zealand Section 61 request
- JessieCHEN
- Oct 3
- 5 min read
Updated: Oct 17
For many people, the moment a visa expires feels like the end of the road. You are suddenly unlawful in New Zealand, you cannot legally work or study, and the normal visa pathways are closed. Friends might tell you that marrying or moving in with a Kiwi partner will “fix it.” That is not how the law works. When you overstay, your only in-country remedy is a discretionary process called Section 61 under the Immigration Act 2009. It is not a normal visa application. Immigration New Zealand (INZ) is under no obligation to consider it, and officers do not have to provide reasons if they decline. Yet, for those who prepare carefully, Section 61 can reopen the door to lawful status and create a bridge to future visas. This article sets out what happens when you overstay, what Section 61 is and how it works, the key steps in building a strong request, common mistakes that sink applications, and a real case study of how one applicant went from unlawful to resident.
What happens when your visa expires?
The law is blunt. If your visa has expired and you remain in New Zealand, you are unlawful. The consequences are immediate and serious:
You cannot legally work or study.
You may be issued with a deportation order and removed from New Zealand.
You lose the right to apply for visas in-country.
Any existing residence application will be suspended.
Unlawful status is not a grey area. It is an on–off switch: either you have a visa, or you do not. The longer you remain unlawful, the harder it is to persuade INZ to consider any kind of remedy.
What is Section 61?
Section 61 of the Immigration Act 2009 gives the Minister of Immigration, or a delegated INZ officer, the absolute discretion to grant a visa to someone who is unlawful.
Key features to understand:
Absolute discretion – INZ can decide not to consider your request, or decline without giving reasons. You have no right of appeal.
Available only to overstayers – It is not a pathway for people still on a valid visa. If you are still lawful, you must use normal partner, visitor, work, or student visa routes.
Any visa type possible – Officers can grant a visitor visa, a work visa, or even a residence visa in theory, but it is rare. In practice, short-term temporary visas are most common.
No set form – A Section 61 is not an “application” in the usual sense. It is a request letter with supporting documents. INZ decides whether to look at it at all.
Think of it as asking for an exception to the rules because your situation is genuinely special.
When should you consider Section 61?
Only if:
You are unlawful (visa expired, no current visa).
You are not already subject to a deportation order.
You have strong positive factors that justify an exception, such as a genuine relationship with a New Zealander, dependent children, community contribution, or compelling humanitarian circumstances.
If you still hold a valid visa, Section 61 does not apply to you. You must use the ordinary application process.
How to prepare a strong Section 61 request
1. Check your eligibility
Confirm you are not under a deportation or removal order. If you are, Section 61 is unlikely to be considered.
2. Act quickly
The shorter the overstay, the less negative weight against you. Submitting promptly shows you are serious about regularising your status.
3. Build a “positives versus negatives” balance sheet
INZ officers weigh positive and negative factors.
Negatives include the length of your overstay, past visa breaches, or inconsistent study/work history.
Positives include strong family ties to New Zealand, evidence of a genuine partnership, community contribution, good character, or clear future visa pathways.
Your submission should show why positives outweigh negatives.
4. Create a seamless timeline
Every claim you make must be backed by evidence. Construct a timeline of your life in New Zealand: study history, employment, living arrangements, and relationship milestones. Attach tenancy agreements, utility bills, bank statements, communication records, and any other documents that verify events.
Most rejections occur because of gaps or contradictions in the timeline. Close every gap.
Plan the next step after approval
A Section 61 approval usually restores lawful status with a short-term temporary visa. From there, you must apply for an appropriate substantive visa—such as a partnership work visa or residence—using the normal rules. Section 61 is a bridge, not the final destination.
Real case study: from a three-month overstay to residence
One applicant came to us after his student visa had expired three months earlier. His record was weak: five years of study in New Zealand with multiple course changes and no completions. INZ had already declined his most recent student visa.
Applying again for a student visa was hopeless. Instead, we identified that he was in a committed relationship with a New Zealand citizen. This opened the possibility of a Section 61 request based on partnership.
We built the case around three pillars:
Overstay explanation – a detailed account of why his visa lapsed, backed by documents.
Partnership evidence – tenancy agreements, joint bills, shared financial records, photos, travel history, and correspondence, all arranged into a month-by-month timeline.
Future pathway – a plan to transition from Section 61 to a partnership work visa and then residence.
During assessment, INZ queried a mismatch between the declared cohabitation start date and some documents. We immediately supplied supporting records—rent receipts, utility accounts, and bank transfers—that reconciled the timeline.
The Section 61 request was approved for a one-month visitor visa. A partner work visa followed. Eventually, after interview preparation and further evidence, the residence visa was granted.
This outcome was not luck. It was the result of careful legal framing, airtight evidence, and proactive management of risks.
Common myths and mistakes
Myth 1: Marriage guarantees success.Reality: Marriage is only one piece of evidence. You still need comprehensive proof of a genuine and stable living together relationship.
Myth 2: A touching story will persuade INZ.Reality: Section 61 is evidence-based. Officers do not have to consider your request at all. Emotion is not a substitute for documents.
Myth 3: If declined, I can appeal.Reality: There is no appeal right for Section 61.
Mistake: Submitting piles of irrelevant papers. More is not better. Irrelevant documents make contradictions easier to spot. Focus on relevance and consistency.
Practical checklist for overstayers
Here is a step-by-step action list if you are considering Section 61:
Eligibility check – confirm you are unlawful and not under a deportation or removal order. If it is possible to apply for a visa from countries outside of NZ.
Overstay explanation – a clear written statement with evidence.
Identity documents – passport, visa history, and previous INZ decisions.
Partnership evidence (if relevant) – tenancy, bills, bank accounts, correspondence, photos.
Timeline master sheet – month-by-month, closing every gap.
Positive factors – community involvement, employment offers, tax records, and good character references.
What you can do right now
If you are overstaying, do not wait. Every extra day of unlawful status makes your case weaker. Start by writing down your personal timeline and collecting supporting evidence. Then seek professional advice to assess whether Section 61 is a viable path for you. Remember, Section 61 is not about “getting away with it.” It is about demonstrating why your specific circumstances justify an exception to the rules, and why you can be trusted to stay lawful in the future.
*Compliance note
This article is based on a real case but has been de-identified to protect the applicant’s privacy. It is for general information only and not legal advice. We do not guarantee outcomes. All services comply with New Zealand immigration law and IAA standards.
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