When Leaving a Violent Partner Will Make You “Unlawful”

Domestic violence affects every community in New Zealand. People remain with abusive partners for many reasons, including fear, isolation, lack of support, lack or resources, and their cultural or religious values. This article discusses an option for clients when immigration status appears to be a reason to stay in a violent relationship.

Community Law Wellington and Hutt Valley (“CLWHV”) includes a specialist Refugee and Immigration Legal Advice Service (“RILAS”). RILAS assists former refugees with family reunification, as well as running drop-in sessions for general assistance with immigration enquiries. An April 2013 Wellington Family Courts’ Association session with Judge Bill Hastings examined the difficult interactions between immigration law and family law relating to relocation. Recently RILAS has assisted a number of clients in cases involving immigration law and domestic violence. The RILAS team and CLWHV recognise that this is a high need area. We hope that together with migrant communities and support groups we can effectively address the needs of our most vulnerable migrants, such as women and children in relationships involving domestic violence.

Refugee and migrant women are often very isolated, having left their family support back in their home country. Further, for many migrants mainstream New Zealand culture is very different to their ethnic culture and accordingly support from the appropriate agencies is not always easily understood and accessed. Many do not speak English. Often the abusive partner will forbid access to education and/or their ethnic community to seek support. This disempowerment is further exacerbated if the women do not have permanent residence status in New Zealand.

In general, the migrant women we see whose immigration status can incentivise them to stay in an abusive relationship are either:

1. in a relationship with a partner who is a New Zealand citizen or residence visa holder; or
2. in a relationship with a partner who is a holder of a temporary visa such as a work or student visa.

In both of the above categories, women may stay in abusive relationships to retain their immigration status in New Zealand or to meet immigration requirements for a temporary or residence visa. When migrant women leave their partners in New Zealand, they could become “unlawful”, as often their visa in New Zealand is linked to that of their partner. Further, if they end the relationship, it is likely their New Zealand partner may remove their support. Thus, women leaving such relationships need to obtain a legal immigration status in New Zealand in their own right with little or no financial support, and often with limited opportunities for obtaining employment due to childcare arrangements, lack of English language or appropriate education.

Immigration New Zealand has a special category for victims of domestic violence (“special visas”) whose partner is a New Zealand citizen or resident visa holder. The special visas are available to the first category of women stated above.

Special visas allow women to apply without the support of their partner and, if they meet the requirements, be granted an independent legal immigration status in New Zealand. Special visas include temporary work visas (and resident visas in some circumstances).

For the purposes of these special visas, “domestic violence” is defined broadly. A sole violent act may amount to domestic violence, as may a series of apparently trivial violent acts. Violence includes physical abuse, sexual abuse and psychological abuse.[1] The primary victim is the applicant in an application for a special visa.

A woman whose relationship ended due to domestic violence may apply for a special work visa valid for six months. If an application for residence is also lodged, the work visa can be extended for a further three months while Immigration New Zealand considers the residence visa application.

The basic requirements for the special visas are as follows:

1. the applicant is living in New Zealand;
2. the applicant was previously in a partnership with a New Zealand citizen or residence visa holder, and that partnership ended due to domestic violence; and
3. the applicant intended to seek residence in New Zealand on the basis of that partnership.

The applicant must provide evidence of the past partnership with a New Zealand residence visa holder or citizen, including evidence that they were living with their partner and evidence of domestic violence. The applicant will also have to provide financial evidence, such as bank statements, to show that they need to work to support themselves.

With their application for a special work visa, the applicant may also submit a special residence visa application under the category for victims of domestic violence. Unlike the special work visa, this residence visa also requires the applicants to prove that they cannot reasonably return to their home country as they would face abuse or exclusion from their community or be unable to financially support themselves. If successful, the applicant and their children can live and work in New Zealand indefinitely.

When a parent applies for the special visas, their children can also be included in the application. The application for the special visas is confidential and Immigration New Zealand will not notify the former partner.

It is important that the applicant contact Immigration New Zealand as soon as practicable to state that the partnership has ended due to domestic violence and that the applicant intends to apply for the special work or residence visa for victims of domestic violence.

The special visas only apply to victims of domestic violence whose former partners are New Zealand residents or citizens. If the partner is in New Zealand on a temporary visa such as the work or student visa, the special visas do not apply. Please contact us if you require assistance. We are happy to work alongside family lawyers dealing with protection and care of children issues for their clients.

Inna Zadorozhnaya, Community Lawyer, Refugee and Immigration Legal Advice Service, Community Law Wellington and Hutt Valley