WELLINGTON
Immigration Policy and Law Change for children born in New Zealand without lawful Immigration Status
I am writing to raise and highlight a matter of significant humanitarian concern for the rights of older children born in New Zealand from 2006 onwards to parents without lawful Immigration Status.
Background
On 25 April 2005 the New Zealand Parliament passed the Citizenship Amendment Act 2005 which had the practical effect of limiting birthright citizenship to those who had at least one parent who was either a New Zealand citizen or had the right to remain in New Zealand indefinitely.1 As a result of the passing of this Act there is now an unknown number of children aged between newborn and 19 years of age, born ,raised and who have lived their entire life in New Zealand, without legal status and liable for deportation under s154 of the Immigration Act 2009.
Cases of children without legal status are now beginning to come to light as this generation of children reach adulthood and find that their ability to enter into normal adult life is constrained by their inability to work, study or build a life of their own. These children have no experience of the country of their parent’s origin2, nor the education systems, community and friendship networks, or even, for many of them, the language and culture of that country or roots. They are in essence, kiwi kids, no different from our own children; born and raised in New Zealand, sometimes educated in our own education system (when schools enrol the children despite the absence of lawful authority to do so), a part of our local communities, developed friendships with their neighbours and classmates, speaking kiwi English, developing kiwi values, connections to the community, roots to the whenua and in every conceivable way, are kiwis, apart from having to live under the ever present shadow of fear that knock on the door could mean deportation to a foreign country.
Immigration New Zealand appears, rightfully in my opinion, reluctant to test the limits of New Zealand’s obligations to international human rights norms by deporting these kiwi kids to a foreign country. But this does not free these kids from harm, because being left in legal limbo continues to deny them the fundamental human rights that other kiwi children enjoy of being able to educate themselves, earn a living, develop relationships, set down permanent roots, build their own families and create a life for themselves.
1 An exception was included to account for abandoned children born in New Zealand where the identity of at least one parent is unknown
2 Because if they ever departed New Zealand, they would be ineligible for re-entry having previously lived in New Zealand unlawfully.
This understandable reluctance to deport kiwi kids is, in itself, a challenge to the Rule of Law; whilst for while New Zealand has given itself the legal authority to deport these children to the country of their parent’s origin, the spectre likelihood of significant human right’s challenges to any deportations looms as domestic legislation must be interpreted in light of our international and common law obligations to human rights norms3; with such rights having been amplified significantly by the long duration of the children’s settlement in New Zealand, their roots in the community and the total absence of any personal culpability in their legal situation. Further, from the real life cases that have come to light in recent months4, some schools would appear to have ignored the requirement to enrol only those students with valid visas, hospitals have continued to treat these children5 and the public outrage expressed in response to recent news stories about the threats of deportation to one such child, demonstrates a clear position by the New Zealand public that each of these kids are one of us; they are kiwi kids, and we must look after our own. The Citizenship Amendment Act 2005 does not appear to be consistent with the values held by the majority of New Zealanders.
Justification for the 2005 Citizenship Amendment Act 2005
The basis for the Citizenship Amendment Act 2005 would appear to be a fear that the rights of New Zealand Citizen children would create a potential anchor for over-stayer parents to remain in New Zealand. By denying the ability of these children to obtain citizenship status, it appears that the purpose of this amendment was to remove an incentive for such parents to have children solely, or in part, for the purpose of providing a pathway for the parents to remain permanently in New Zealand.
Leaving aside the self-evident prejudicial undertones of implying that parents would have children for such a mercenary reason, there is a total absence of any evidence that such birth tourism was ever a problem that needed solving. Even in countries where birth tourism is actively promoted, the actual numbers are negligible6. Several legal academics have published journal articles postulating that the citizenship law change was an urgent reaction to suggestions by lower courts that a child’s rights approach would interfere with the ability of Immigration New Zealand to remove the parents of New Zealand citizenship children.7 However these authors noted that such fears were deemed unnecessary as the New Zealand Supreme Court8 and Parliament9made it quite clear that the rights of New Zealand Citizen children would have very little legal effect on the ability of Immigration New Zealand to take deportation action against the parents of New Zealand children; thus rendering the purpose of the Citizenship amendment obsolete, but nevertheless left in place to continue inflicting significant harm on children.
New Zealand now finds itself as an outlier internationally on birthright citizenship. Whilst the USA is an unusual example, with Birthright Citizenship having historical antecedents in the Civil War and enshrined in the US Constitution, Canada has retained its birthright citizenship laws. The European Union have additional protections in the European Convention on Human Rights, regarding the right
3 Attorney-General v. Zaoui and Ors (Zaoui No. 2), [2005] NZSC 38, New Zealand: Supreme Court, 21 June 2005,
https://www.refworld.org/jurisprudence/caselaw/nzlsc/2005/en/61860 [accessed 26 April 2025]
4 https://www.stuff.co.nz/nz-news/360582079/kiwi-kid-who-faces-being-deported-country-hes-never-been
5 However in some cases, children and their parents live in such fear of deportation that they neither send their children to school nor seek medical treatment.
6 Leslie F. Goldstein, Technologies of Travel, “Birth Tourism,” and Birthright Citizenship, 79 MD. L. REV. 177 (2019) Available at: https://digitalcommons.law.umaryland.edu/mlr/vol79/iss1/9
7 Sawyer, C. (2013). The Loss of Birthright Citizenship in New Zealand. Victoria University of Wellington Law Review, 44(3/4), 653– 674. https://doi.org/10.26686/vuwlr.v44i3/4.4975; and Geiringer, C (2008). Ding v Minister of Immigration; Ye v Minister of Immigration. New Zealand Centre for Public Law. VUW-NZCPL-001. https://www.wgtn.ac.nz/public-law/publications/working- papers/pdfs/VUW-NZCPL-001.pdf
8 Ye and ors v Minister of Immigration and Anor; SC 53/2008 [20 July 2009]
9 s177(3) of the Immigration Act 2009
to be able to build and plan a future in the country in which migrants are well settled10 and Australia and the United Kingdom have a compromise Citizenship right that recognises that children born in those countries and having been settled there for the first 10 years of their life, have set down sufficient roots to be awarded citizenship status11. New Zealand therefore is left as the outlier, being possibly one of the only OECD countries that retains the right to physically deport a well settled child born and raised within its territories, to a foreign country.
The question must be asked therefore as to how, as a country, we can morally justify treating children this way? Obviously, the child carries no moral agency; they don’t ask to be born, and they are morally and legally incapable of making decisions on their own legal status. When a child is abandoned in New Zealand, regardless of the parent’s legal status here, we undertake to care for that child to adulthood. Similarly, when a child is left without parents to care for them, even if the parents have committed serious criminal offences and are imprisoned, we as a country undertake to provide the social services necessary to care for that child. There are simply no circumstances where we punish a child for the sins of the parent; it is something which is morally repugnant to all right- thinking New Zealanders. Yet, this is exactly what we are now doing, and the only morally significant difference between how we treat these children, and how we treat other children who may have been either abandoned, or whose parents have been imprisoned upon committing a serious crime, is that these children were born to migrants.
What is the solution?
I am of the view that this is a matter of significant concern with how, as a country, we look after our children. I therefore ask for the following steps to be taken:
Short term
That the Minister of Immigration direct Immigration New Zealand to take no action in deporting children born in New Zealand and direct the Associate Minister of Immigration be directed to grant Resident Visas under powers invested in him by s378 of the Immigration Act to any children born in New Zealand between 1 January 2006 and 31 December 2015 (i.e.: over the age of 10) who have never left New Zealand, regardless of their parent’s immigration status.
Medium Term
That the Minister of Immigration introduce a policy enabling children born in New Zealand between 1 January 2006 and 31 December 2015, who have never left New Zealand, to be granted Resident Visas upon application.