Higgs and Witbrock v Minister of Immigration  NZHC 1333
On 8 June 2022 the High Court at Auckland ruled that the New Zealand Bill of Rights Act was not breached when the Minister of Immigration lapsed various visitor visa applications where partners of New Zealand citizens were involved. During the Covid-19 pandemic Immigration New Zealand had suspended the processing of all visitor visa applications with a number of exceptions including applications that had been and could still be lodged on partnership grounds.
In Higgs it was argued by the plaintiffs’ lawyers that a class of persons that should have also been provided an exemption from the general ban on processing and ultimately suspension, included ordinary visitor visa applicants where, for whatever reason, a partnership application had not been lodged but an ordinary general visitor visa application had been made, and where a partner of a New Zealand citizen or resident was involved. The difficulty with the argument was that it was almost impossible for Immigration New Zealand to wade through thousands of ordinary visitor visa applications and pluck out that those that involved a relationship partnership.
The proposition was that the failure to distinguish between all the other hundreds, possibly thousands, of visitor visa applications and the plaintiff amounted to a form of discrimination and therefore involved a breach of the New Zealand Bill of Rights Act. In particular it was argued that where, for example, a same-sex couple or a de facto couple were unable to live together as that was repugnant to the societies in which they were living, it would then be almost impossible for such couples to live together in order to meet the “living together” requirement under New Zealand partnership immigration rules and such couples, therefore, it was argued, could only use the general visitor visa route. The lapsing therefore meant that such couples were greatly disadvantaged.
One of the difficulties with this argument, however, was that in fact a partnership application could still have been lodged even where a couple have never lived together. Immigration New Zealand would then need to exercise their discretion to instead offer a visitor visa. In other words an exception to policy (instructions) was a viable option. The High Court discusses this particular route in detail, the so-called “drop-down” route where the case starts off as a partnership application, and as long as it is assessed as genuine and stable, the living together requirement is waived as an exception and a visitor visa (general) is then offered. Immigration New Zealand has the option of offering a different visa. This way forward had in fact been around for many years. The partnership application is “dropped down” or “morphs” into a “general visitor visa”. It is understood by the writer that with the suspension of visitor visa applications, many couples have since instead filed a partnership application in order to get around firstly the suspension of processing and then the lapsing (by refiling). All that is then lost is the place in the queue. Many of course had followed the advice set out above to file under “partnership” even in the face of not having lived together or insufficient time in a home together (but where there is a genuine relationship).
Even after cases were lapsed (it was the lapsing that triggered the High Court proceeding) a partnership application could have been lodged at any time. The lawyers in Higgs had argued that because they could not proceed with a partnership application, this amounted to discrimination. However all persons who had lodged a visitor visa application whether those in a de facto relationship or in a same-sex relationship, or who were just coming to visit friends and family, had their visas lapsed, and therefore it was not discriminatory. The lapsing did not arise because the persons were in a same-sex relationship for example, but in spite of it.
The Court ultimately found that neither the suspension decision(s) nor the lapsing decisions were discriminatory on any of the prohibited grounds (in the Human Rights Act) and therefore did not breach the Bill of Rights Act. The suspension and lapsing processes or decisions were blunt instruments made necessary because of the pandemic.
As a result, the Court found that there was no judicially reviewable error in the suspension or lapsing decisions, and the decisions taken by the Minister of Immigration were therefore upheld. For those who followed the partnership “drop-down route”, many, possibly hundreds, of such cases were successful during Covid both before and after the suspension and the lapsing decisions. The drop-down for many, including the writer’s firm, is the preferred route where there is a genuine difficulty in achieving actual living together. Cultural, religious and sometimes employment factors sometimes conspire to make living together difficult. Depending on the circumstances, Immigration New Zealand are normally able to find a solution through the exception-to-instructions prism. That remains the preferred route, available also at the time, and also now, to the litigants in Higgs.