Leslie Smith and his daughter Courtney are desperate to stay in New Zealand but red tape, tragedy and an oversight looks set to cost the pair their future here.

Smith's working visa and an interim visa have expired and an application for residency is continuously delayed, leaving the 49-year-old struggling to survive without an income.

He has been out of work for seven weeks and must wait until at least mid-August for Immigration New Zealand [INZ] to decide his case.

But by then Smith said he will be out of savings prompting him to move back to England before he goes broke.

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The blow comes after his partner of 24 years, Michelle Tock, died of lung cancer in February last year.

The couple emigrated from Hull to Auckland in 2009 with their then 9-year-old daughter.

Smith has worked the whole time, and for the past seven years with Mainfreight as an instructor trainer.

In 2014 he applied for a Work to Residence visa where under the talent work category an employee can work for an accredited employer for two years before applying for residency.

But in March 2015 Tock was diagnosed with lung cancer and died less than a year later, aged 42.

The couple were married a month before Tock died and afterwards Smith took several weeks unpaid leave to cope with the grief and support Courtney, now 17.

It meant he could not claim to have worked for 24 continuous months when it came time to apply for residency in November last year.

Added to that Smith's Type 2 diabetes flared up as he and Courtney struggled to come to terms with Tock's death, and although Smith says it is now under control INZ has sought two specialist opinions.

One cleared Smith of any burden on the health system but he must undergo further tests, scheduled for August.

Meanwhile a private immigration adviser Smith paid $9000 to make the application, failed to point out a technicality which could damage Smith's chances of success.

This was that workers must earn more than $55,000 for a 40-hour week. The fact Smith had always worked a 50-hour week at Mainfreight had been missed by immigration officials until now and it could undermine his application, he said.

Copy photo of Shelly Smith who passed away last year.
Copy photo of Shelly Smith who passed away last year.

Complicating the situation further, Mainfreight lost its accredited employer status during the process which left Smith in limbo.

Smith was also told by the adviser if INZ decided against him he would have one week to leave the country.

Now he is investigating the cost to ship two cars, furniture, possessions and a German Shepherd dog home.

"I've decided to go back to the UK which is not where I want to be, but I can't survive without work."

Smith said he was desperate to stay in New Zealand so that his daughter could finish her final year of high school and gain university entrance.

"She's only got five months left to go. She's gutted. She's got no life to go back to in the UK."

He worried that Courtney would have to repeat her final year in the UK.

I've decided to go back to the UK which is not where I want to be, but I can't survive without work.

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And it was Tock's dying wish that her daughter remain in New Zealand.

Before the debacle Smith and Courtney scattered Tock's ashes, together with baby son and brother Sam who was stillborn in 2004, at Cathedral Cove on the Coromandel Peninsula where Tock loved to visit.

"It means my daughter can never go to her mother's resting place," Smith said.

"They've forced my hand to leave. They've tied me up. Every time I get over one hurdle they put another one up.

"I've never been out of work. I've paid my taxes. I've never been in any trouble with the law and this is how they treat me. Hasn't anybody got any compassion?"

Smith even considered returning to the UK alone until he discovered it would cost $13,500 in international student fees for Courtney, whose student visa has also expired, to continue at Rosehill College.

INZ area manager Jock Gilray said he could not comment on the case because it was being investigated.

"Immigration New Zealand is actively reviewing Mr Smith's case and will be contacting him in the next week."