Immigration fight tests child rights

The Immigration Service has been accused of acting unlawfully in trying to kick out a Chinese woman whose three children are New Zealand citizens, in a case which could have far-reaching immigration implications.

A judicial review of the service's action has been heard in the High Court at Auckland. If the children's case is successful it could significantly increase the chances of parents who are illegal migrants gaining residence through their children.

The case, argued before Justice David Baragwanath, concerns a removal order issued against Yueying Ding, 44, in August. She had arrived in New Zealand from China in 1996 with her husband on a visitor's permit but they stayed on illegally.

The couple had three children, born in 1997, 1998 and 2000, and Ding's husband, a painter, was kicked out last year.

In August, Ding was interviewed by an immigration officer while in custody.

Her removal order was upheld.

Friends took her children into hiding and Ding was later granted bail, reunited with them, and both parties have now issued legal challenges to the removal order.

Counsel for the children, Dr Rodney Harrison, QC, argued the Immigration Service and its officer acted unlawfully and in breach of the Care of Children Act 2004, which replaced the Guardianship Act.

Dr Harrison said the children had rights of protection both as New Zealand citizens and under international law, including the United Nations Convention on the Rights of the Child.

He said the immigration officer had ignored the welfare and best interests of the children.

The removal order was also unlawful and invalid as it had occurred without hearing the views of the mother or children.

Dr Harrison said the principles of the Care of Children Act included that parents had the primary responsibility for their children's care, development and upbringing.

If the children were to follow their mother to China they would be removed from the only society and culture they had ever known, he said.

They would lose access to New Zealand's superior education, health and social welfare system and experience a markedly lower standard of living.

Dr Harrison said the only satisfactory outcome would be for the children to remain in New Zealand with their mother.

The Crown's position was that the family should be dealt with as a unit and the decision as to what happened to the children was that of the parents, not the state.

Auckland District Law Society family law spokesman Stuart Cummings said if the case succeeded it would increase the value put on the welfare of children in immigration issues.

It might prove difficult to force parents out of New Zealand in cases where it could be shown that the country they returned to would not be in the best interests of their children.

From next year a law change will mean children born here whose parents are not citizens or permanent residents will no longer be eligible for automatic citizenship.

Mr Cummings said the Care of Children Act appeared to cover all children living in NZ, whether citizens or not.


In brief:
* A Chinese woman argues that kicking her out would breach the Care of Children Act with regard to her three offspring, who are New Zealand citizens.
* The case could boost the chances of illegal-migrant parents gaining residence through their children.