A former minister says dozens of families with babies born since a change to citizenship rules have asked him to help keep their children in New Zealand.
The case of 18-year-old Daman Kumar - who awaits the outcome of an eleventh hour appeal to Associate Immigration Minister Chris Penk against being deported to India - has highlighted a generation of New Zealand-born children who have always been overstayers. Kumar was born here to parents who did not have residence, and has never been to India.
An immigration lawyer and former Progressive Party MP, Matt Robson, said the 2006 citizenship changes were 'mean-spirited' and should be reviewed. He estimated hundreds of migrants had appealed their cases since then, or been forced to leave.
Youngsters often only found out they were overstayers when asked for a visa or proof of citizenship for work or university, and more would approach those milestones in the coming years, he said.
"Those born before 2006, happy New Zealanders. Those born the day after, unhappy children.
"The demographic now - they can get through high school, without being challenged [about visas] but when they get to university, that's what I've had some people come forward. For some children that's probably when they find out that they're not New Zealand citizens."
He said dozens of clients, mainly parents, had approached him as their children got older to launch appeals, but were reticent to speak out publicly. Some have 'split' families, where one child was a New Zealand citizen and others not.
Generally, ministers over the years had sided with families and overturned threatened deportations in similar cases to Kumar's, he added.
Who decides?
A change to who makes decisions on appeals has led to the current problem, said Robson, blaming Penk for passing the buck to INZ officials, who were judging decisions that other departmental colleagues had made.
"I don't think he has been completely open about this process, of just not doing his job on many of the cases, saying 'I'm too busy, I'll farm it out to what's called a delegated decision-maker'. But it violates the basic principle of constitutional law, you don't allow an institutional organisation, when you have an appeal, to judge itself."
Penk told RNZ in a written statement: "It is my responsibility to consider whether individual cases may have special circumstances, which merit intervention," while also confirming it was a delegated decision-maker who had made that call in Kumar's case. Penk himself is now reviewing the appeal decision.
"Questions of legislative changes concerning immigration fall outside of my delegation as Associate Minister of Immigration," he added. "However, I understand there are no current plans to make changes to the Citizenship Act."
The Helen Clark-led Labour government brought in the original changes, backed by National. Before that, New Zealand had what Americans call 'birthright citizenship', where country of birth confers automatic citizenship.
Robson said opponents of the original legislation saw that it would turn newborns into overstayers, and did not see evidence that the policy was needed.
It was 'slipped in' as an amendment when the bill had got to its later stages, he said, and recalled having a row with Clark about it on national TV.
"There was no economic reason to stop people having children and being able to stay. I saw it as a mean-spirited move. I don't think there was any statistics to show that people would hop on a plane, come to New Zealand and make babies. I think again that it was just one of those tightening things where bureaucrats believed that there were those out there that are 'getting away with it' and we're not going to allow them."
