Jailed overstayers claim Covid refugee status in bid to remain in NZ

Two long-term overstayers who are in jail pending deportation are claiming refugee status because of the Covid-19 pandemic in a bid to remain in the country.

The father and son Indian nationals say their lives are at risk if they are forced to return to India because of the Indian government’s failure to control and manage the Covid-19 outbreak.

Their immigration adviser Tuariki Delamere says the two are being held in prison without just cause as they have no criminal record and pose no threat to New Zealand.

Delamere is calling for their release on bail while their refugee claims are being processed.

He said under current rules the two men cannot be deported until their refugee claim is completed.

“Because this determination process could well take over two years, the New Zealand taxpayer faces a cost of about $500,000 to keep them in prison; a cost that does not need to be incurred, and a cost that I, as a taxpayer, object to having to pay.” Delamere said.

Covid-19 restrictions on the availability of international flights also means it’s unclear when the overstayers can be deported.

They shouldn’t be held in jail for more than a month if they can’t be deported, Delamere said.

In court applications seeking detention for the overstayers, the immigration officer in charge said the duo have been unlawfully in New Zealand for a significant period of time (five and eight years), and had made no attempts to regularise their immigration status.

The son had declined INZ’s proposal for monitoring in the community pending voluntary departure from New Zealand.

The father had previously made three refugee claims and one appeal since 2014, all of which were declined by the Refugee Status Branch. He was found hiding under a bed by INZ officers before his arrest in October.

An INZ spokeswoman confirmed the two were initially detained under the Immigration Act 2009 and taken into custody after being located by INZ compliance officers.

A Warrant of Commitment to continue detaining them for 28 days was granted by the Auckland District Court on October 14.

“INZ will be reviewing their detention on a continuous basis, taking into consideration all circumstances relevant to their cases, including any new information that may become available during the validity period of their warrants of commitment,” the spokeswoman said.

The agency have been able to increase deportation as more flights have become available.

“We are aware that it continues to be difficult for some migrants to leave New Zealand, due to a lack of flights to some destinations, and transit and border restrictions around the globe,” she said.

“It is important that migrants do not breach their visa conditions, and that they contact INZ regarding any changes in their personal circumstances that may impact on their visa status.”

The spokeswoman said migrants who wanted to leave or are required to leave because of their visa status, should contact their Embassy or Consulate if they require financial assistance with flights.

She said the agency continued to prioritise the deportation of those considered to a risk to New Zealand.

“We are also now engaging with individuals who are unlawfully in New Zealand, or not complying with the conditions of their visa,” the spokeswoman said.

“Our compliance response in these situations, including decisions about whether to undertake deportations, takes into consideration the individual’s personal circumstances and any potential risks to New Zealand.”

The UN Refugee Agency defines a refugee as “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion,” citing the 1951 Refugee Convention.

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