‘Human rights’ are words sometimes loosely referred to in the context of different types of decision making which can affect a person. Often the phrase is inaccurately applied, or there is a misunderstanding as to what it means. I will discuss the topic a bit here and describe the relevance in immigration decision-making.
New Zealand is party to (has ‘ratified’) several international agreements which can impact on decision making by Immigration New Zealand (and also, the Immigration & Protection Tribunal).
For example, it is described here, on the Ministry of Justice website;
“New Zealand is party to 7 core international human rights treaties of the United Nations. By signing up to these instruments, New Zealand has assumed obligations under international law to respect, protect and fulfil the human rights of everyone in New Zealand. This means that the State must refrain from actions that interfere with or curtail the enjoyment of human rights, protect individuals and groups against human rights abuses and take positive action to facilitate the enjoyment of basic human rights.”
For example, it is also described here, also on the Ministry of Justice website;
“Since the adoption of the Universal Declaration (on Human Rights by the United Nations General Assembly in 1948), a large number of international human rights instruments have been developed, both within and outside the United Nations. Many of these treaties address matters of concern to particular groups such as women, persons with disabilities, ethnic minorities and children. New Zealand is a party to these core international human rights instruments of the United Nations.”
The ‘core human rights instruments identified’ and the year New Zealand ratified them are:
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- International Covenant on Civil and Political Rights (ICCPR) (1978)
- International Covenant on Economic, Social and Cultural Rights (ICESCR) (1978)
- International Convention on the Elimination of All Forms of Racial Discrimination (CERD) (1985)
- Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (1985)
- Convention on the Rights of the Child (CRC) (1993)
- Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) (1989)
- Convention on the Rights of Persons with Disabilities (CRPD) (2008)
How are these Conventions (specifically these identified as ‘core human rights instruments’), relevant in immigration decision making)?
These Conventions are not binding on decision makers such as Immigration New Zealand and the Immigration & Protection Tribunal in the same way that legislation (statute) is, which is passed by the New Zealand Parliament. Instead, these Conventions can be ‘relevant considerations’ for a decision maker to take into account. There are decisions of higher New Zealand Courts such as the Court of Appeal which say this. For example, see Puli’uvea v Removal Review Authority (1996) 2 HRNZ 510 and Huang v Minister of Immigration [2009] 2 NZLR 700. The idea is explained in a bit more detail here, on Courts of New Zealand website.
We will put forward one or more of these Conventions for consideration by an Immigration Officer in a particular case, where there is a good reason. However in practice, often what one of these Conventions might suggest about the way an immigration matter should be decided, is one factor amongst others that might be considered. What the Conventions say are not binding and may be overridden by other factors. Our experience with Immigration Officers (who are not Lawyers or Judges) is that they will apply a ‘template-style’ or ‘checklist’ approach to considering relevant matters, such as the Conventions. The effect is that sometimes the Conventions are considered but overridden by other factors, so decisions get made which may be seen as an affront to the idea of ‘human rights’ as loosely understood.
For example, a common type of Convention consideration is the ‘best interests of the child’ under the Convention on the Rights of the Child, especially where the child is a New Zealand citizen or resident. While this can sometimes be an important factor that both Immigration New Zealand and the Immigration & Protection Tribunal will consider, we have seen situations where the ‘best interests’ of a New Zealand citizen or resident child, in the form of an ongoing relationship with a parent, are overridden by other factors. For example, it may be that the parent is facing deportation from New Zealand and the decision-maker considers the reasons why are serious enough so that deportation will proceed.
Another type of Convention consideration that can arise is ‘protection of the family unit’ under the Covenant on Civil and Political Rights. The Immigration and Protection Tribunal will give effect to this, for example in the context of a humanitarian appeal against liability for deportation, under the heading of whether it is contrary to the public interest for a person facing deportation to remain in New Zealand (the Tribunal can say that is in the ‘public interest’ for New Zealand to comply with its commitments under international human rights treaties … ‘although ultimately the New Zealand government determines whether foreign nationals are given lawful status to remain here’, see Van Der Merwe [2024] NZIPT 506470 at [39].
The statement referred to here that ‘the New Zealand government determines whether foreign nationals are given lawful status to remain here’, reflects the idea that the Conventions are not binding. Ultimately, Immigration New Zealand or the Immigration & Protection Tribunal (both as a branch of ‘government’), decides whether a person is granted a Visa, or gets to remain in New Zealand. This is because, ‘every sovereign nation has the right to decide and manage its immigration policies, which set out which non-citizens may enter and remain in its territory and under what circumstances. The purpose of the Immigration Act 2009 is to manage immigration in a way that balances the national interest, as determined by the Crown, and the rights of individuals’, see here (on the website of the Ministry of Business Innovation & Employment, which Immigration New Zealand comes under).
Conflicting views around the roles of ‘human rights’ in immigration decision-making are seen in a proposed Members’ Bill (proposed law) put forward by the New Zealand Green Party, see a short video describing this here. This Members Bill expressly attempts to repeal section 392 of the Immigration Act, which states that ‘(2) despite anything in the Human Rights Act 1993, ‘(a) no complaint may be made under that Act in respect of (i) the content of application of this Act or any regulations made under this Act; or (ii) the content of application of any immigration instructions…, (3) this section recognises that immigration matters inherently involve different treatment on the basis of personal characteristics’, (although the Human Rights Act 1993 is a statute passed by Parliament, which differs from the Conventions referred to above).
Understanding how ‘human rights’ in the form of Conventions are applied is relevant. However, there are conflicting views around the degree to which they might bind a decision-maker and this can be a topic on which there are different views.