Deportation risk for residents after a guilty plea: the 2026 change to section 161

From 27 May 2026, a resident visa holder in New Zealand can become liable for deportation after pleading guilty to, or being found guilty of, a criminal offence. Before that date, liability under section 161 of the Immigration Act 2009 depended on a conviction. A discharge without conviction therefore kept many residents outside the deportation rules. That is no longer the case.

This article explains what changed, who it affects, and what residents and their families should consider when a charge has been laid.

What changed on 27 May 2026

The Immigration (Fiscal Sustainability and System Integrity) Amendment Act 2025 amended section 161. A residence class visa holder (someone holding a resident visa or a permanent resident visa) is now liable for deportation if they are convicted or found guilty of, or plead guilty to, an offence that falls within the section. The offence can be committed in New Zealand or overseas.

The change came into force on 27 May 2026, six months after the Act received Royal assent. The time limits and offence thresholds in section 161 are the same as before. What changed is the event that makes a person liable, and Immigration New Zealand (INZ) has updated its operational instructions to match.

Which residents can be made liable for deportation

Liability depends on how serious the offence is and when it was committed. The time is measured from the date the person first held a residence class visa. That is usually the date the first resident visa was granted in New Zealand, or the date the person first arrived on a resident visa granted overseas. A continuous absence from New Zealand of five years or more can reset that date.

For the first two tiers, the test is the maximum penalty the court could impose, not the sentence actually given. A first drink-driving offence, for example, carries a maximum of three months’ imprisonment. It can fall within the first tier even if the court imposes only a fine. Time spent in prison after a conviction does not count towards these periods.

Why a discharge without conviction no longer prevents liability

A court can discharge a person without conviction under section 106 of the Sentencing Act 2002. It can do so only if the consequences of a conviction would be out of all proportion to the gravity of the offence. For residents, the risk of deportation was often central to these applications. In Bolea v R [2024] NZSC 46, the Supreme Court confirmed that sentencing judges must consider the likelihood of deportation liability when deciding sentences.

Because section 161 used to require a conviction, a discharge meant the section was not triggered. The Government’s stated aim in amending the Act was to make deportation liability a consequence of the offending itself, with those decisions made within the immigration system rather than by the criminal courts. Since 27 May 2026, a guilty plea or a finding of guilt is enough for section 161, whether or not a discharge follows.

A discharge without conviction can still matter for other purposes, including a person’s criminal record, employment and travel. It is no longer a way to avoid liability under section 161.

Offending or court steps before 27 May 2026

The amending Act does not say how the change applies to offending, guilty pleas or discharges that occurred before 27 May 2026. No court or tribunal has yet decided the question.

If the offending, plea, or discharge in your case happened before that date, or your case was under way when the law changed, the position depends on the facts. Get advice before INZ makes a decision, and before you respond to any letter from INZ.

Being liable is not the same as being deported

Liability starts a process. It does not decide the outcome. INZ considers whether to serve a deportation liability notice, and the Minister of Immigration, or an officer acting under delegation, can suspend or cancel liability under section 172. If INZ writes to you about potential deportation liability, you can respond before it makes a decision.

A resident served with a deportation liability notice under section 161 can appeal to the Immigration and Protection Tribunal on humanitarian grounds within 28 days of the notice being served. The Tribunal must allow the appeal if exceptional humanitarian circumstances would make deportation unjust or unduly harsh, and allowing the person to remain would not be contrary to the public interest. MK Law’s pages on IPT appeals and deportation matters explain the process.

Government figures give some context. According to a Cabinet paper released in August 2026, 325 residence class visa holders were made liable for deportation under section 161 in 2025. The same paper reports that, on average, fewer than 20 percent of residents made liable for deportation are actually deported.

If you hold a resident visa and have been charged

The plea is now the main decision point. Before entering a guilty plea, check the immigration consequences against section 161. That means looking at the maximum penalty for the charge, the date of the alleged offending, and the date residence was first held.

A withdrawn or dismissed charge, or a not-guilty verdict, does not trigger section 161. Whether another resolution is available is a question for the criminal proceedings, so raise it with the lawyer acting on the charge.

Criminal and immigration advice must be consistent. MK Law acts in criminal proceedings and on immigration matters, and can advise on both. Residents who have been charged, and family members helping them, can contact the firm before the next court date.

Proposed further changes: the Enhanced Risk Management Bill

The Immigration (Enhanced Risk Management) Amendment Bill, introduced on 18 March 2026, proposes longer time windows under section 161:

• from 2 to 5 years for offences with a maximum penalty of 3 months’ imprisonment or more
• from 5 to 10 years for offences with a maximum penalty of 2 years or more
• from 10 to 15 years where a sentence of 5 years or more is imposed
• a new 20-year window where a sentence of 10 years or more is imposed

It would also set out factors the Tribunal must consider on appeal, and allow victims to make submissions.

The Bill is not law. The Education and Workforce Committee reported it back on 7 August 2026. It did not complete its remaining stages before the House adjourned on 23 September 2026, and it will not progress before the 2026 election. Whether it proceeds is a matter for the next Parliament.

Frequently asked questions

Can a permanent resident be deported for pleading guilty in New Zealand?
Since 27 May 2026, a guilty plea can make a resident or permanent resident liable for deportation if the offence falls within section 161. Liability does not mean deportation will follow. INZ and the Minister have discretion, and there is a right of appeal.

Does a discharge without conviction stop deportation?
Not under section 161 for guilty pleas or findings of guilt from 27 May 2026. Where the plea or discharge came before that date, the position is not settled and depends on the facts.

How long can a resident be made liable for deportation after an offence?
Under the current law, up to 10 years from first holding residence, depending on the seriousness of the offence. The Enhanced Risk Management Bill proposes up to 20 years, but it has not been passed.

How long do I have to appeal a deportation liability notice?
An appeal to the Immigration and Protection Tribunal must be filed within 28 days of the notice being served.

This article is general information about the law as at 9 October 2026. It is not legal advice about any particular situation.