Hemani Mall is one of hundreds of New Zealand citizen-children facing the prospect of being deported because one or both parents are overstayers.
Hemani is nine years old and her parents Sital Ram and Usha Rani were overstayers for 10 years.
There is no doubt that Hemani’s parents should have been deported back to India. They have no right to be in New Zealand; and if I were the Immigration Minister, I would have had them arrested and deported.
However, the equation changed with the birth of Hemani in 2003.
Her birth right of citizenship entitles her to live in New Zealand. She has the right to the benefits of being a kiwi child living in a modern and developed country.
She has the right to access a world class health and education system and a future with prospects.
New Zealand and international law also states that as a New Zealand born child, she should grow up within her family unit. New Zealand law also says that all Government agencies have a duty to protect the safety and welfare of our children.
Judicial precedents
But for Hemani to be able to grow up in New Zealand within her family unit, the Government must give up its rights to deport her parents.
Unfortunately for Hemani and hundreds of others in a similar situation, our Government has decided not to protect their safety and welfare.
Prime Minister John Key is happy to see Hemani remain in New Zealand as a State-created orphan or accompany her parents to India.
Sital and Usha Rani are poor. They are Dalits (untouchables) and therefore occupy the lowest rung on the Indian socio-economic ladder. The likelihood of Hemani living a life of poverty is very high.
Justice Susan Glazebrook, in her decision at the Court of Appeal, made it clear that when overstayer-parents are deported, the Government is deporting the citizen child.
In July 2009, in a case involving over-stayer parents with citizen children, The Supreme Court ruled that Immigration New Zealand had to (a) conduct a humanitarian assessment and decide what was in the best interests of the citizen children (b) consider whether it was unjust and unduly harsh on the children if the overstayer parents were removed from New Zealand and (c) determine whether it was against the public interest for the overstayer parents to remain in New Zealand.
I believe this was a sensible solution to a difficult situation.
Unjust directive
However, the Government was unhappy with this ruling and in October 2009 passed an amendment to the Immigration Act allowing immigration officers to ignore the ruling of the Supreme Court.
The Amendment was introduced without warning or consultation.
Immigration Minister Nathan Guy told Parliament that the test imposed by the Supreme Court was too complex for immigration officers to consider.
With due respect to Mr Guy, suggesting that immigration officers are too stupid to cope with the Supreme Court’s ruling is ludicrous and an insult to them.
The ruling was not at all complex.
Mr Guy also intimated that the Amendment was taking away the rights of overstayers that had been conferred on them by that Supreme Court decision.
This was not true. The Supreme Court did not confer rights on the overstayers but on their citizen children.
Ambiguous debate
I believe the Immigration Minister was obliged to inform Parliament that his amendment would strip away those citizenship rights.
If he had been honest and said that the Amendment would erode the rights of New Zealand citizen children (as affirmed by the Supreme Court), I doubt if Parliament would have passed the legislation.
I say this because recently I discussed this issue with Labour leader David Shearer and National MP Simon Bridges. I asked them why they voted for the Amendment. Neither of them had any idea what I was talking about, even though they voted for it.
I am not fighting for Sital Ram, Usha Rani or any other long term overstayers.
I am fighting for the citizenship rights of our children and grandchildren.
Hemani Mall is the face of those children.
I had many uncles who went to war to fight against the threat to our citizenship rights posed by the Nazis. Many of them died fighting for those citizenship rights.
If I do not fight for Hemani, then I am turning my back on future generations.
I am so passionate about this issue that I have made a video of my granddaughters interviewing Hemani.
It is hard-hitting, pulling no punches. You can view it on ‘You Tube’ (Save Hemani Mall).
Tuariki Delamere is a former Minister of Immigration. He is now a Licensed Immigration Adviser and Managing Director of TDA Immigration Services based in Auckland.
