New Zealanders overseas have won a high court victory over border restrictions that left many of them unable to return home during the coronavirus pandemic.
New Zealand’s COVID-19 policies allowed the country to escape the worst of the virus, keeping cases and deaths relatively low compared to many other countries.
But the New Zealand High Court ruled that the system used to allocate places in border quarantine facilities infringed on the rights of some citizens to return home.
For most of the period between 10 April 2020 until 28 February 2022, returning citizens had to get a place in hotel isolation (MIQ – managed isolation and quarantine) before they could board a plane home.
This was done through an online portal, while some could apply for an emergency allocation.
During the period covered by the legal challenge, a lottery system was in place for almost all other citizens where demand far outstripped supply.
The bar for emergencies was high and success did not exempt a person from isolation – so if they were coming home to be with a dying family member, for example, they would still have to complete what, at its longest, was 14 days in a hotel.
Grounded Kiwis – representing affected New Zealanders – launched a legal challenge in October last year, alleging that the system’s design and operation breached the Bill Of Rights, which allows New Zealand citizens to enter the country.
In a ruling released on Wednesday, High Court Justice Jillian Mallon said: “Although MIQ was a critical component of the government’s elimination strategy that was highly successful in achieving positive health outcomes, the combination of the virtual lobby and the narrow emergency criteria operated in a way that meant New Zealanders’ right to enter their country could be infringed in some instances in a manner that was not demonstrably justified in a free and democratic society.”
The judge found operating a lottery-style system for the beds was unreasonable, and did not take into account how long people had been waiting abroad, or whether they had a compelling need to return home.
New Zealand’s COVID-19 response minister Chris Hipkins said the government welcomed the determination that requiring returnees to quarantine was lawful and acknowledged the finding that the allocation system may have infringed on some New Zealanders’ rights.
“We are carefully considering the court’s decision,” he added.
Chris Bishop, from the opposition National Party, said the judge’s decision confirmed the system had been “state-sponsored cruelty”, while ACT Party leader David Seymour said: “The government owes all those who were stuck in limbo overseas an apology”.
Grounded Kiwis spokesperson Alexandra Birt said: “It is difficult to express the trauma felt by our members who were locked out of their home, and required to repeatedly enter a lottery to try and exercise their fundamental right to return.
“The decision today confirms that this system was not only morally wrong, but unlawful.”
New Zealanders and Australians can now enter NZ without quarantine and those from visa waiver countries such as the UK can enter from May.