A University of Otago law professor says there is a need for a prioritization system within MIQ reserves with people left waiting more than a year to be granted entry to the country.
Grounded Kiwis is preparing legal actions, which advocate a large number of expats who want to return home but cannot.
With the demand for MIQ rooms vastly outstripping supply, the right to return home is greatly limited by the country’s border policy.
Andrew Geddis, a law professor at the University of Otago, said Control There were some questions about the legality of the operation of the MIQ system by the government.
“Under the bill of rights law, people have the right to return to New Zealand which is written in our rights, however those rights can be limited in ways that are demonstrably justified … obviously the existence of Covid and the fact that ‘Following a strategy of elimination that we cannot have Covid in New Zealand under that strategy means that we have to have very strict border controls.’
Geddis said the question was when border controls basically became a return ban.
“The problem is because MIQ is very restricted and limited and because the way MIQ is distributed is based on this luck, there could be people who have been trying to recover for a considerable amount of time who have not been able to do so in rather than for some people who can re-enter on the first try.
“Such aspects of inequality and injustice are perhaps the Achilles heel in the way the process is carried out.”
However, Geddis said there was no set period of time during which the government could legally refuse to allow a person to return to their country.
“I cannot say that there is an absolute punitive time in which you should be allowed to enter the country because it all depends on the reasons why we have the limits set.
“The reasons why we have established limits is because there is a pandemic that is killing many people and if it enters our country it will kill many, many people here and that has not disappeared, so the fundamental problem is still so good now. like 18 months ago. “
However, Geddis said that if there were people who had been trying to return to the country for 18 months without success, it was clear that there was a problem with the system.
“The system should have been configured to allow them at some point to have priority to enter the country … is the problem that for 18 months we have had these restrictions or because there simply are not enough places for everyone who wants to return?”
“There has to be some kind of rationing and that form of rationing is going to create some feelings of injustice. Everyone thinks they have a very good reason to go back, but there are not enough places to let people in and if we allow more people enter with looser restrictions, we will increase the risk of Covid entering New Zealand and people dying. “
On the allocation of MIQ places, Geddis said decisions had been made that could be considered legally unjustifiable.
“Those kinds of decisions can be analyzed and they have to be themselves justifiable, rational and fair, on that basis, maybe there are some decisions that have been made under the MIQ process that may not pass that test.
“Why was the English Netball team allowed to come to New Zealand to play tryouts in front of 100 people and take positions that New Zealand citizens, who have the right to return to their country, were rejected?”
Geddis said that while the MIQ system itself was justifiable, decisions about allocating MIQ rooms to specific groups could be challenged in the legal system and deemed illegal if they were not sufficiently justified.
He said that if someone challenged the MIQ system, the courts would likely give the government a great deal of discretion due to their need to balance risk and reward.
“It is a great balance between risk and reward, etc., and a judge may think that I am not in the best position to make that decision, we have elected politicians, we have different models that are being put, ultimately the voters would choose who has the best ideas.
However, Geddis pointed to the Bergen Graham case in which a pregnant woman ‘miraculously’ received a position at MIQ after initiating a lawsuit after the government rejected her emergency request to return to the country.
Geddis said these types of individual cases are helpful in ensuring that proper attention is paid to decisions being made around MIQ.
However, he said that legal actions directed against the entire MIQ system would be much more difficult to take.
“In terms of going to court to challenge the MIQ system as a whole, it is very difficult to do so for a couple of reasons, firstly, there is a pretty good reason to have an MIQ system, and secondly, the amount of evidence should be able to show how the MIQ system works in practice … that would be very difficult to check, the government saves everything and they are not being incredibly communicative about why some of these decisions are made. “
“The Ombudsman is already analyzing the system in general and, of course, the Ombudsman not only looks at strict legality, he also looks at fairness and reasonableness, so that path is being followed.”