MIQueue: Is it legal to stop New Zealanders coming home?
The Bill of Rights promises every New Zealand citizen the right to enter Aotearoa. So is it legal to shut 30,000 Kiwis out? Nikki Macdonald investigates.
Grace Ritchie is trying to hold it together.
The managed isolation and quarantine (MIQ) system has already purged her of tears once in the past week.
The 21-year-old should be celebrating the last few months of one of life’s great adventures – four years on a running scholarship to the University of Portland, in the US state of Oregon.
Instead, she’s seeing a counsellor once a week, the stress and uncertainty clawing at her mental health.
Because in December, she finishes her finance degree. She wants to take a year out before starting her career, to work in hospo back home in Taupō. But in December, her US student visa expires, and she’ll become an illegal alien in a foreign country, with no way home.
For three months Ritchie had tried all the tricks – the Twitter account showing new spots opening up in managed isolation; the background auto-refresh that allowed her to do something else – like study – while still trying, and failing, to book a place in managed isolation.
So when last week’s MIQ lottery rolled around, Ritchie was nervous.
“I was like, maybe this is my chance. I can finally plan for the future, know when I can go home and see my family.”
Then she got her place in the queue – 12,500. With 3205 rooms up for grabs, that was game over.
“I honestly just cried.”
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She hadn’t thought about the legality of her situation until someone posted a photo of a New Zealand passport, which promises passage without delay or hindrance.
“It made me realise, it’s against our rights as a New Zealander to not be able to go back into the country as you wish.”
The right to return home is enshrined in the International Covenant on Civil and Political Rights, which New Zealand has ratified. Article 12 states “No one shall be arbitrarily deprived of the right to enter his own country”.
We’ve gone a step further, writing it into domestic law. Section 18 of The New Zealand Bill of Rights Act declares that “every New Zealand citizen has the right to enter New Zealand”.
That’s reinforced again in the Immigration Act, which says “New Zealand citizens may enter and be in New Zealand at any time”.
Victoria University public law expert Dr Dean Knight says both legal mentions mark out the right of return as “a very cherished right”.
“Some people say one of the most fundamental in our Bill of Rights, in terms of who we are. The right to belong somewhere.”
So surely MIQ – which clearly restricts citizens’ ability to enter – must be illegal?
Not so fast, says Otago University law professor Andrew Geddis. The Bill of Rights includes an escape hatch. Section 5 allows for the rights and freedoms protected by the act to be subject to “reasonable limits”.
The test is that the limit has to be “demonstrably justified in a free and democratic society”.
MIQ was set up under the Public Health Response Act, which has to be consistent with the Bill of Rights, Geddis says.
“So is the current MIQ system a demonstrably justified limit on the right to return to New Zealand as guaranteed by the Bill of Rights Act? If it is, then it's fine.
“If it's not, then the order can't be made, you can't have that system, because the Bill of Rights Act takes precedence.”
The idea of limiting the rights of returning Kiwis to protect the health and wellbeing of those already in New Zealand is probably justifiable, Geddis says.
Knight agrees. Having an MIQ system is not barring citizens from entering, it’s trying to manage the timing, number and entry requirements. And that seems proportional to the risk Covid poses.
“We're not leaving people fundamentally stranded, but trying to manage how people present in a way that does not present an alarming risk to inhabitants here. So on a broad brush level, even against that important human right, you might say what the government is doing is in principle justifiable.”
So the idea of MIQ is not illegal. End of story? Not so much. The devil is in the detail. There’s principle, and then there’s practice.
“The question comes, when does it tip over too far,” says Knight. “When do the hoops and hurdles that citizens have to jump through to come home mean that they impose a disproportionate burden on their fundamental rights?”
As Geddis puts it, it’s not enough for the idea of an MIQ system to be justifiable. You’ve got to run that same ruler over all the bits of MIQ and how it’s run.
“Is it demonstrably justified to allow English netballers to come over here and play a test in front of nobody, at the cost of allowing New Zealand citizens to come home who haven’t been here for two years? On these sorts of sub-questions, I think some do look to me to be at least questionable.”
Last Thursday, Joe Russell’s 90-day Schengen European visa waiver expired. He’s spent those three months trying multiple times a day to get a place in managed isolation. At number 698 in the queue in last week’s MIQ lobby, he thought he’d hit the jackpot. But by the time he’d found workable flights, the spots were gone.
The 33-year-old works as an engineer on yachts – a job that only exists overseas. After a six-month stint in the Mediterranean he wants to come home to Paraparaumu, to his ageing parents, his half-built tiny house and his English pointer Lace.
Instead, he’s considering moving to Germany, where he can remain if he buys land.
“It would mean I would have somewhere to stay, and maybe somewhere to call home.”
Whatever happens he’ll have to leave Spain, where he’s living off savings and the kindness of friends.
Yes, he left during the pandemic and realised there was some risk. But many Kiwis need to work overseas and that doesn’t relieve the government of its responsibilities to its citizens, Russell says.
“I feel abandoned...Four months of just trying to get the ability to go home, it’s pretty heartbreaking actually. It’s very stressful...We just want the option to go back to New Zealand, as a human right.”
In theory, New Zealanders unable to legally remain in their current location are eligible for an emergency MIQ allocation.
But there’s a catch – you have to show you’ve tried to extend your stay. In the United States context, that means being declined for a visa that takes up to six months to process.
You can also only apply within 14 days of your flight. And even if you meet the criteria, there’s no guarantee of a spot.
The emergency allocation system also provides a theoretical pathway home for Kiwis overseas needing to return for medical treatment or to care for someone, to visit a dying relative or after a bereavement.
That system was a key target of New Zealand’s one case so far challenging the legality of MIQ.
Bergen Graham had a high risk pregnancy and had been trying to return to New Zealand from El Salvador, where her husband is from, for months.
Repeatedly denied an emergency place and stuck in transit in the United States, Graham took her case to the High Court.
Her lawyer, Frances Joychild QC, says the case challenged the excessively high emergency threshold.
“We argued that the whole emergency criteria system is broken.”
She also argued a Bill of Rights Act breach, that the limits on Kiwis returning home were not demonstrably justified.
“At the same time they are stopping people in desperate situations from returning home, they were letting in all sorts of foreign sportspeople.”
The case never made it to court. Within a day of filing the claim, Graham’s application – which had been rejected six times – was approved.
While the law is yet to be tested, Joychild believes the Government is “very vulnerable and exposed” in how it’s operating MIQ.
“It reminds me of people in a lifeboat. The lifeboat is New Zealand and other people are swimming in the sea, and they're pushing them away and won’t let them into the lifeboat.”
Since taking Graham’s case, Joychild has been deluged with requests for help. Stranded Kiwis in Asia forced to live off charity. A young mum in New Zealand needing cancer treatment overseas, with no assurance of an MIQ place on return.
The fact emergency applications can only be made within 14 days of travel is “outrageous” and a “major vulnerability”, Joychild says.
“It’s just cruel and inhumane. People need certainty before then.”
Alexandra Birt apologises for being overtired.
By day, Birt is an expat Kiwi lawyer in London. By dawn and dusk, she helps run Grounded Kiwis – a group supporting and advocating for stranded expats, and those in New Zealand needing to leave and return.
Every day, 10-20 emails land in the mailbox of desperation. Some are stranded and broke. Others are mentally fragile. When one of three suicidal people she’d been working with got a spot in last week’s lottery, Birt was so happy she could have cried.
“I was so worried about them. It was keeping me up at night.”
Birt says the emergency allocation criteria are too narrow and the process is excessively bureaucratic.
About 10 per cent of respondents to a Grounded Kiwis survey reported serious mental health impacts, but there is no mental health emergency criteria.
Australia seems to have a better system, with a broader vulnerability test, Birt says. A pregnant Aussie friend got an emergency allocation and flight home within three weeks.
Grounded Kiwis wants a significant increase in MIQ rooms for vulnerable people who need to return urgently and a waiting list system for everyone else. But they’re also considering legal action, Birt says.
“If that’s the only option available, to go to the courts, that’s what I think we have to do...It’s not acceptable that 18 months on there’s still no solution.”
Geddis says court action would be hard, against the might of the Crown.
“There’s probably thousands of New Zealanders overseas who the system may be treating unfairly, but for any one individual to be able to do anything about is very hard.”
Chief Ombudsman Peter Boshier is also considering investigating the system, following more than 800 MIQ and border-related complaints.
An MIQ spokesperson says the system is a “necessary and proportionate response to protect New Zealand against the risks of Covid-19”.
“The Government is confident the system is a justified limitation on the rights of New Zealanders to enter New Zealand.”
The reasons the Government settled Bergen Graham’s case are confidential, but did not include any lack of confidence in the MIQ system, the spokesperson says.
Knight says the fact 31,800 people logged in to last week's MIQ lobby might indicate a legal tipping point.
“If we’re leaving too many people abroad for a long period of time, where they can’t come back, it may be incumbent on the government to increase supply.”
But it’s a difficult balancing act, between protecting New Zealanders in New Zealand, and the rights of those wanting to return.
“It’s a really really hard conundrum. If this went to court, I think that would be recognised by the court. It’s really hard to get that balance in its sweet spot... I think the Government has been sweating this deeply every time they make a move on MIQ.”
Probably not as much as the 26,000 Kiwis who missed out last week will be sweating it when tomorrow’s MIQ lobby rolls around. Not least of them, Grace Ritchie.
“I feel like I’ve been turned-on as a New Zealander...To the point where I’m like ‘Do I even want to go back to New Zealand, to this government, that doesn’t seem to want me here?’ But then I remember that as soon as I’m past that border and I’m back with my family and friends, I do love New Zealand. It’s where I’ve lived for my whole life. I want to be able to go home.”