The latter conviction followed a jury trial in 2019 after the man returned to the United Kingdom for what he thought was going to be a short time, to attend his trial on a newly laid charge for historical sexual offending.
He was charged with indecent assault on a girl under 16 after the victim had complained to the UK police in 2018 of an offence that was said to have been committed between October and December 1988.
In October 2019 he was sentenced to four years in prison and indefinite registration under the United Kingdom’s Sexual Offences Act 2003.
He spent two years in prison and two years on parole before he was permitted to leave the United Kingdom after October 30, 2023. He arrived back in New Zealand a week later but in the meantime, the UK police informed Immigration New Zealand of his 1976 conviction.
In February last year, Immigration New Zealand served him with a deportation liability notice because he failed to disclose his 1976 conviction.
He argued that he hadn’t disclosed it because his barrister had told him that he could treat the 1976 offence “as if it had never happened”.
The tribunal said the appeal on the facts failed - the man did conceal he’d been charged with a criminal offence at the time he applied for residence, but he succeeded in the second part of his appeal in that “exceptional humanitarian circumstances” existed that would make it unjust or unduly harsh for him to be deported.
The tribunal was satisfied that it would not, in all circumstances, be contrary to the public interest to allow him to remain in New Zealand.
When the man’s first marriage ended many years ago he took on the care of his and his former wife’s children. He later remarried and applied for residence in New Zealand with his second wife as a secondary applicant.
They were granted residence and arrived in New Zealand to live more than 20 years ago.
A couple of years later one of the man’s adult children moved to New Zealand, married and had a family while another adult child remained in the UK with family there.
The tribunal said that over the years, the man developed special relationships with his granddaughters. He was also especially close with his child here, for whom he was extremely concerned, knowing how much the man’s conviction had affected that person.
The man’s second wife died before he returned to the UK to face trial on the charge for which he was ultimately imprisoned.
During the two-year parole period after his release, he lived with his brother until six weeks before he was able to leave the UK.
The tribunal noted he was isolated and unable to visit his adult child there because of the probationary restrictions imposed on him.
The tribunal heard detailed evidence from many in support of the man being able to stay in New Zealand, including from his child here who said their family would be significantly negatively impacted if he was forced to return to the UK.
A report by a registered clinical psychologist detailed the likely impact on the family from another separation if the man was to return to the UK.
The tribunal said it was required to consider the best interests of any child affected by the outcome of an appeal.
It accepted that the loss of a well-established living situation and even separation from family were normal consequences of deportation but in this instance, it was satisfied that there were exceptional circumstances of a humanitarian nature.
In allowing the appeal the tribunal ordered the suspension of the deportation liability notice for three years, with a condition that the man commit no offence in that time that would lead to imprisonment.
Tracy Neal is a Nelson-based Open Justice reporter at NZME. She was previously RNZ’s regional reporter in Nelson-Marlborough and has covered general news, including court and local government for the Nelson Mail.
