The overstayer issue is back on the political agenda with the Supreme Court decision that there are fundamental flaws in Immigration New Zealand’s removal processes

Recent Supreme Court decisions that deportation orders against two Chinese families had not been made on a correct legal basis by the New Zealand immigration service are kicking the contentious overstayer issue back to life.

Former immigration minister, now licensed immigration adviser, Tuariki John Delamere has returned from Samoa with briefs from 50 families who believe the court decisions create grounds for a review of removal orders enforced against them by Immigration New Zealand. He believes several thousand cases may need to be re-opened.

Current immigration minister Jonathan Coleman is waiting for advice from officials on the implications of the court decision, issued on 20 July, which upholds appeals by Willie, Candy and Tim Ye and Alan Qiu and Stanley Qiu and requires Coleman to review removal orders in each case.

Immigration New Zealand ’s head of legal services Graeme Buchanan says he would be “very surprised” if the Court’s decision offered any hope for overstayers who’ve already been deported.

Buchanan argues that appeals under the Immigration Act must be made within three months. They are expensive and deported overstayers will not qualify for legal aid. Finally, he asserts that the decisions made by the Supreme Court involve cases about specific families, suggesting that they have little general application.

Delamere disputes Buchanan’s view on all counts. Courts, he says, have the discretion to re-open cases despite the three month limitation. He sees a group action with cost-sharing as the means of bringing the expense of an action down to affordable levels. He has legal advice that the Ye and Qiu decisions provide scope for the review of other removal orders enforced by Immigration New Zealand.

The Ye and Qiu cases involved removal orders issued against overstayer parents of children born in New Zealand at a time when they were automatically entitled to New Zealand citizenship. This automatic entitlement was removed by an amendment to the Immigration Act in 2006, an important point because it imposes one cap on the potential for further appeals.

The Supreme Court decision confirms that the appeal provisions of the Act relating to decisions by the Immigration Removal Review Authority also embrace the final consideration of removal orders by immigration officers when the time for appeals to the review authority has expired.

The appeal provision states that “an appeal may be brought on the grounds that there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the person to be removed from New Zealand, and that it would not in all the circumstances be contrary to the public interest to allow the person to remain in New Zealand.”

Removals often happen without an overstayer’s case being taken to the review authority because of the short time provided for an appeal [42 days], or because an overstayer may be unaware of their appeal right, or because they are concerned about the effect a negative review authority decision would have on any application they could make to the Minister of Immigration to have their case reviewed.

In the Ye and Qiu cases, the court effectively decided that the humanitarian purpose of the appeal provision must be served when an immigration officer considers enforcing a removal notice.

The court decision finds that there is “a fundamental legal flaw” in the questionnaire used by immigration officers to interview overstayer parents when they make a final determination whether there are humanitarian grounds for cancelling a removal order before it is finally enforced.

“In short, the decision-makers, in coming to their decisions, did not direct themselves correctly in law. They did not ask themselves the right questions,” say Judges Blanchard, Tipping, McGrath and Anderson .

“The case is disposed of on the basis of failure to address the right humanitarian questions, not the application of the wrong standard,” says Chief Justice Elias.

The second flaw in Immigration New Zealand’s processes for removing overstayer parents concerns the manner in which the interests of their children are considered.

‘We cannot accept the Crown’s argument that officers are never obliged to look beyond what parents may advance in the interview process,” the judges say.

“Generally, children’s interest in this kind of litigation should be represented by parents. A child may, however, need to be separately represented if there is good reason to believe that the parent will not adequately represent the child’s interests.”

These two elements of the Supreme Court decision suggest that many other overstayers’ cases may have been mishandled as a result of the flaw in the Immigration New Zealand questionnaire used during the final interview before removal, and as a result of inadequate consideration of the best interests of the children of overstayer parents.

Clearly, the decision presents immigration minister Coleman with a significant problem, Immigration New Zealand head of legal services Buchanan with a surprise, and immigration adviser Delamere and many overstayer parents with an opportunity.

The overstayer issue is firmly back on the political agenda.