Ratified treaties;¹ International case law²

Immigration/ Male foreigner married to a New Zealand citizen and father of a child threatened with expulsion from the territory/ Obligation for the administration to take account of international human rights standards

The Ministry of Immigration had served an expulsion order on a citizen of the Samoa Islands, who was married to a New Zealand citizen with whom he had had a daughter. He requested, unsuccessfully, that his case be reconsidered for humanitarian reasons. The main issue in the proceedings instituted before the Court of Appeal was whether, in the absence of any legislative statute containing an explicit obligation, the administrative authorities should take international instruments ratified by New Zealand into consideration in the exercise of their discretionary powers.

The Wellington Court of Appeal first examined the relevant provisions of the international instruments in order to determine whether the expulsion decision might have been modified if the administration had taken them into account. It then proceeded to examine the provisions of the International Covenant on Civil and Political Rights (Articles 23(1) and 24(1))³ and the Convention on the Rights of the Child (Article 91),⁴  followed by the relevant case law of the European Court of Human Rights.⁵

The Court noted that in two judgments the European Court had found that the consequences of the extradition of foreign citizens for their situation and the situation of their families would have been out of proportion with the aim pursued. It was held that the same approach could be adopted on the basis of the International Covenant on Civil and Political Rights and of the UN Convention on the Rights of the Child and that, to that effect, the point of departure for the examination of the case had to be the situation of the family and of the child.

Having established that consideration of international instruments could modify the administration’s expulsion decision, the Court of Appeal then held that the administration should take international human rights instruments into consideration in the exercise of its discretionary powers. It found that it was unconvincing to argue to the contrary, since this would mean that New Zealand’s adherence to international instruments was merely “window-dressing”, as the Court put it.

Although the Court did not deal with the effect of international human rights conventions on national legislation in general, it found nevertheless that New Zealand’s ratification of the Optional Protocol to the International Covenant on Civil and Political Rights had consequences for the exercise of the powers of the national courts.

 “Since New Zealand’s accession to the Optional Protocol the United Nations Human rights Committee is in a sense part of this country’s judicial structure, in that individuals subject to New Zealand jurisdiction have direct rights of recourse to it. A failure to give practical effect to international instruments to which New Zealand is a party may attract criticism. Legitimate criticism could extend to the New Zealand Courts if they were to accept the argument that, because a domestic statute giving discretionary powers in general terms does not mention international human rights norms or obligations, the executive is necessarily free to ignore them.”

The Wellington Court of Appeal thus held that although the immigration legislation did not make provision for the administration to take account of New Zealand’s international obligations in the exercise of its discretionary powers this did not mean that it could ignore them. On these grounds, the Court urged the Ministry of Immigration to reconsider the expulsion decision thereby taking account of the International Covenant on Civil and Political Rights and of the UN Convention on the Rights of the Child.

¹ International Covenant on Civil and Political Rights, 1966; Optional Protocol to the International Covenant on Civil and Political Rights, 1966; Convention on the Rights of the Child, 1989.

² European Court of Human Rights

³ Article 23(1) of the International Covenant on Civil and Political Rights: “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”

Article 24(1) of the International Covenant on Civil and Political Rights: “Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.”

⁴ Article 9(1) of the Convention on the Rights of the Child: “States Parties shall ensure that a child shall not be separated from his or her parents and against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedure is, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents or at one where the parents are living separately and a decision must be made as to the child’s place of residence.”

⁵ European Court of Human Rights: Berrehab v. the Netherlands (1988) 11 EHRR 322; Beldjoudi v. France (1992) 14 EHRR 801.