David Ryken: Consultants may be giving false hope to overstayers

There appears to be misinformation concerning an immigration ruling recently made by the Supreme Court of New Zealand.

A number of immigration advisers have expressed the opinion that thousands of overstayers could have their cases re-opened. Much of what has been said, however, is exaggerated and incorrect.

It is of concern that certain immigration advisers may use this debate to convince ill-informed clients to pay large amounts of money for legal action which has little or no prospect of success.

There has been mention of mass meetings designed to promote applications en masse.

In July, the Supreme Court ruled in Ye, Ding, available on the Supreme Court website, that the humanitarian test in the Immigration Act in Section 47 should be applied when removing an overstayer.

Where a case involves New Zealand citizen children, this will involve a proper consideration of whether or not a humanitarian case has been made.

The humanitarian test referred to, however, is a high test. It requires exceptional circumstances of a humanitarian nature that would make the removal unduly harsh or unjust.

The received view has always been that this test applied only to appeals against removal before the Removal Review Board and when an officer came to remove an overstayer parent perhaps several years after a decision had been made by the Removal Review Authority, then a different humanitarian test applied.

The standard approach was that the decision made immediately prior to removal had to consider the rights of New Zealand citizen children but that the decision was discretionary.

What the Supreme Court has pointed out is that the different sections of the Immigration Act must be read alongside each other and the exceptional circumstances of a humanitarian nature test also applies pending removal. Circumstances may have changed.

The reality is, however, that the test of exceptional circumstances is quite high. This is also discussed by the Supreme Court.

Where there is a genuine problem with access to education, medical care or a decent standard of living, where there is a civil war or potential discrimination against the family, then one may be able to label the case as "exceptional" and as a case that will involve hardship or injustice on the New Zealand citizen child (or New Zealand partner).

Although it may no longer be the case, there certainly was a problem involving second, third or fourth children born of Chinese parents who might, if they return to China, not have access to education or healthcare as a result of the one-child policies. Whether that still applies needs to be tested.

In the Ye, Ding case, by insisting that family unity overrode all other considerations, effectively the immigration officer had failed to consider the potential humanitarian issues in the case. The Supreme Court has quashed that decision and ordered a new one.

The suggestion made in the media is that Immigration has potentially made hundreds of decisions that are invalid. Given the generosity of the most recent ministers and associate ministers it is unlikely that there are many who truly had exceptional circumstances and who have been removed.

If there are medical issues, or if there is a serious problem facing the overstayer or his family in the home country, this needs to be properly explained and supported with evidence. Sending New Zealand citizen children into a civil war zone is of grave concern.

New Zealand citizen children of overstayers from Afghanistan, Iraq, Somalia or even the Congo might well amount to exceptional circumstances of a humanitarian nature. It may be quite wrong to send New Zealand citizen children into such situations.

Circumstances also arise which are particular to the individual case. The plight of the children of apostate Christians required to live in Iran is of concern.

Children of HIV parents from countries which do not provide antiretroviral medication might also create exceptional circumstances that impact on the New Zealand citizen children.

Children who have grown up in New Zealand who cannot access education in another language in the country of their parent is another area of real concern. These are only examples.

The suggestion that thousands of overstayers have been removed unlawfully, and can now have a new crack of the whip because of the Ye decision, overstates the reach of the Supreme Court ruling.

The Supreme Court did not rule that the overstayer parents of citizen children should be granted residence and allowed to remain. It ruled that an immigration officer in the exercise of his or her discretion when making a decision concerning removal must consider these matters and that removal should not normally occur if there are exceptional circumstances of a humanitarian nature.

Clients should, therefore, carefully consider whether they should fund legal action if the proposal involves a case which did not clearly establish at the time of the removal, or for those currently in the country, does not have exceptional circumstances. Borderline cases of course should be promoted.

Exceptional means exceptional. Run-of-the-mill overstayers, even if they have citizen children, may be removed. Neither can immigration officers, except in extreme cases, be required to make extensive inquiries; overstayers are required to establish their case.

Drumming up unrealistic hope in cases in which there are no exceptional humanitarian circumstances, either by lawyers or by consultants, raises ethical issues. Clients without special circumstances should think twice before funding hopeless cases.

* David Ryken is an Auckland lawyer who specialises in immigration and refugee law. He is deputy chairman of the International Bar Association immigration and nationality subcommittee.