Our firm principal, Simon Laurent, discussed the implications of applying for refugee status as a means of staying in New Zealand in his blog last year. Today, I want to delve deeper into this topic, especially in light of Immigration New Zealand’s (INZ) media release regarding the Auckland District Court’s decision on 23 February 2024. The court sentenced a woman to 11 months of home detention for filing false refugee claims on behalf of other migrants, highlighting the severity of this issue.
The sentence highlights the serious repercussions of manipulating the immigration system. The national manager of Immigration Investigations, Jason Perry, emphasised that such devious behaviours will not be tolerated, it will be uncovered by INZ and prosecuted to the fullest extent. This case serves as a stern warning to those contemplating similar actions. Filing fraudulent refugee claims is a misuse of the immigration system and it diverts INZ’s time form processing legitimate refugee claims.
International Obligations and Genuine Claims
New Zealand is required under international law to protect people who face danger in their home countries. We are signatories to several international conventions, including the 1951 Convention Relating to the Status of Refugees, the 1984 Convention against Torture, and the 1966 International Covenant on Civil and Political Rights. However, it is crucial that asylum claims are genuine and based on well-founded fears of persecution.
A refugee is a person who:
- is outside of their home country or country of habitual residence.
- faces a real chance of facing a sustained or systemic breach of a fundamental human right in their country.
- their country’s government is unable or unwilling to protect them.
- the harm faced is for reasons of who the person is, or what they believe. The reasons may be race (or ethnicity), religion, political opinion, nationality or membership of a particular social group (such as family status, gender, or sexual orientation or identity).
- they need and deserve protection in New Zealand.
A protected person is a person:
- whose deportation from New Zealand would violate the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment 1984 (Convention against Torture) and/or the International Covenant on Civil and Political Rights 1966 (ICCPR).
- who has substantial grounds for believing they would be in danger of torture, arbitrary deprivation of life or cruel treatment if deported from New Zealand.
If a person can get effective protection from the authorities of their country or a third country, New Zealand is not obliged to protect them.
Legal and Social Implications
The implications of claiming refugee status can be severe, particularly if the claim is unsuccessful. Many migrants do not fully grasp the potential consequences of filing such a claim. Those seeking to remain in New Zealand might be misled into thinking that applying for asylum is a viable option. While genuine refugee cases exist, many individuals who choose this route are unaware of the significant drawbacks. As Simon Laurent mentioned in his blog, “it’s a one-way street.“
When a person applies for refugee or protection status, their claim is assessed by the Refugee and Protection Unit (RPU) of INZ. If the claim is declined, there is a right of appeal to the Immigration and Protection Tribunal. However, while the claim is being processed, the individual is typically granted a visa to remain in New Zealand lawfully. The catch is that once they have applied, they can only hold a visa for the purpose of pursuing their claim. If the claim ultimately fails, they must leave the country. The only way out of this bind is to withdraw their claim before the RPU makes its decision, and apply for a visa upon different grounds.
Also, their record of having claimed asylum may be accessible to other countries, such as Australia, USA, UK, or Canada. This can severely hinder their ability to obtain visas for these destinations in the future.
One of the major obstacles in refugee claims is credibility. Claimants must provide evidence to back their account of events. Many cases are declined because the decision-maker did not believe the claimant’s story. Legal tests are applied to every claim, and even if a person has a strong reason for seeking protection, there is no guarantee that they will be recognised as a refugee or protected person. For instance, if you do show that you have a genuine fear of serious harm because you belong to a particular religious or political group, the RPU can still decide that you are able to find safety in another part of your own country.
Therefore, following advice from friends, social media groups and community can be misleading and place you in a vulnerable position. Advice must be sought from a professional lawyer or a licensed immigration adviser who has expertise in this area.
Alternatives to Refugee Status
To be recognised as a refugee or protected person you must have a well-founded fear of returning to your home country. The bar to meet this requirement is high and INZ will carefully assess your situation to make sure you meet it. Currently only around one fifth of refugee and protection claims made with INZ are successful.
Even for those with a strong case for asylum, we often recommend exploring other options, such as obtaining a work visa based on a job offer, or a student visa, or partner visa if they had a partner in New Zealand. This approach can lead to a more stable and secure pathway to residence.
Applying for refugee status should be pursued only if the claim is genuine, credible, with evidence to back up your claim and when no other options are available.
Conclusion
Filing a refugee claim is a serious step with potentially severe consequences. Non-genuine claims slow down the processing for everyone and can lead to legal troubles for the claimant. Therefore, it is essential to seek professional advice before pursuing this route. Simon Laurent has handled many refugee cases and can provide guidance on conventional visa options. If you or someone you know needs to explore this option, please get in touch with us.