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Ambiguous law creates stateless children

Prior to January 1, 2006, overstayers’ children born in New Zealand were given automatic New Zealand citizenship at birth.

Currently, it is believed there are about 2000 NZ citizen-children whose parents are overstayers. The Government’s position is that all of these overstayers should immediately leave New Zealand or face being arrested and then deported.

Following the enforcement of the new law on January 1, 2006, overstayers’ children are no longer granted New Zealand citizenship automatically.

This means the number of these citizen-children is now capped. It also means that the number of overstayer parents with citizen-children is also capped.

The issue remains unresolved and we have hundreds of families in New Zealand facing the potential destruction of the sanctity of their family unit.

If these overstayers were removed, the inevitable outcome would be our most vulnerable citizens – our children, will be de facto deported to the home country of their parents.

As the great majority of these overstayers come from countries substantially less developed than New Zealand, these citizen-children face the prospect of growing up in a country where they have limited or no entitlement to adequate medical and education services.

Alternatively, the children could be left behind in New Zealand by themselves, without their parents, and effectively grow up as orphans in the care of a Government agency at the cost of the taxpayer.

Illogical legislation

Even though New Zealand supposedly protects the welfare and safety of our children as well as the sanctity of the family unit, the current legal situation is far from clear.

A Supreme Court decision in July 2009 [Ye v Minister of Immigration] gave hope to these families as the Court ruled that Immigration New Zealand (INZ) were required to consider their humanitarian circumstances and the best interests of the children.

The Supreme Court also ruled that if there was a public interest factor that put New Zealanders at risk (such as criminal parents), then this could override the interests of the children.

I believe the Court provided a sensible and commonsense solution to a difficult but capped problem. However, in my opinion, inexplicably the Government refused to accept the ruling of the Supreme Court and amended the Immigration Act 1987 to allow immigration officers to ignore the Supreme Court’s ruling.

The new Immigration Act 2009, which has not adequately addressed this issue.

I believe that INZ should apply the test as per the Supreme Court decision.

Fair assessment needed

If INZ were to assess, on a case-by-case basis the humanitarian circumstances, the best interests of our citizen-children would take priority, unless there are exceptional public interest factors against the parents.

This would be what a Government that cares about the safety and welfare of its children would do. A Government that actually cares about the safety and welfare of its children would never contemplate taking an action that would risk a New Zealand citizen-child having to grow up in the slums of a third world country and/or risk living in the middle of the violence endemic in some other countries.

I sought clarifications on this issue from Immigration Minister Dr Jonathan Coleman and INZ Chief Executive NZ.

I invited INZ to join with TD&A in moving the High Court for a declaratory judgment on interpretation of the law on these issues.

Regrettably, INZ has to date not agreed to our suggestion.

Our children deserve the right to live in New Zealand and to live with their parents.

We intend to request the Court for an interpretation of the law.

Tuariki Delamere is a former Immigration Minister. He runs his own (TD&A) Immigration Consultancy firm and is a licensed Immigration Advisor. He can be contacted on (09) 3370380. Email: tuariki@delamere.co.nz

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