NZ-born girl who could die prematurely in South Africa gets residence after Covid muck-up
The girl is cognitively able and is progressing through Year 3 schooling.
The family also submitted genealogy records tracing their New Zealand ancestry to before relatives emigrated around the time of the Boer War.
A seven-year-old girl born in New Zealand has been granted residence after pandemic-era delays in obtaining her South African passport contributed to her being left out of her family’s original residence application.
New Zealand's immigration tribunal has ruled the girl, who has a severe genetic condition, could die prematurely if forced to leave New Zealand because the treatment keeping her alive is not available in South Africa.
“Her life, literally, depends on her remaining in New Zealand,” Immigration and Protection Tribunal (IPT) member L Wakim said in a decision dated September 17.
The girl was born in New Zealand in March 2019 and has spinal muscular atrophy type 1, a serious condition affecting muscle strength and movement.
Her South African parents and older brother had arrived in New Zealand the previous year. When her father applied for residence in 2020, the girl was declared in the application but was not included as an applicant.
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Her parents told Immigration New Zealand (INZ) they had applied for her South African birth certificate and passport but had not received them because of processing delays caused by the Covid-19 pandemic.
Her father later told the tribunal he had also struggled to obtain the immigration medical needed for her application. Such medical examinations were not available where the family was living and the girl was too medically fragile to travel to where one could be completed.
Her father, mother and brother eventually gained residence, while the girl remained without it. That became critical when she later applied for residence in her own right.
INZ declined her application in June this year because her medical condition meant she did not meet the acceptable standard of health. She was also unable to be considered for a medical waiver because immigration rules treated her as someone who had been eligible to be included in her father’s earlier residence application but had not been.
The family’s representative argued INZ had known about the girl’s medical condition in 2020 and had failed to explain the consequences of leaving her out of the application.
But the tribunal said INZ’s electronic records did not support that claim. It found no record that medical information about the girl had been given to INZ at the time, despite her having been diagnosed more than a year earlier.
Her condition appeared to have been disclosed to immigration officials only from 2022, after her mother was told the girl was unlawfully in New Zealand and would need to seek a visa as an exception to immigration instructions.
The tribunal, nevertheless, found the consequences of sending her to South Africa could be devastating.
Her New Zealand doctors had sought information from the head of pediatric neurology at a Cape Town children’s hospital about whether her treatment would be available there.
They were told one of her medications was not available at all, even through the private sector, while another was so expensive it was effectively unavailable.
The tribunal accepted evidence from her specialists the treatment keeping her alive was not available in South Africa and that without it “a premature death is likely”.
Her doctors said the treatment does not cure her condition and must continue to preserve her existing motor function and survival. The tribunal acknowledged that allowing her to remain would come with significant costs to the New Zealand taxpayer.
As a resident, she would be entitled to publicly funded healthcare and ongoing ORS educational support until the age of 21, and could later become eligible for welfare or disability support.
But Wakim said those costs did not change where the girl’s best interests lay. She had been born in New Zealand, had never known another home and was settled here with her family and a specialist medical team.
“The life-saving treatment that she receives is not available in South Africa; she would be unlikely to survive if she returned there,” the decision said.
“Her life, literally, depends on her remaining in New Zealand.”
The family also submitted genealogy records tracing its New Zealand ancestry to before relatives moved from New Zealand to South Africa around the time of the Boer War.
The tribunal upheld INZ’s decision as correct under immigration instructions but found the girl had special circumstances warranting consideration by the immigration minister.
Five days later, on September 22, she was granted residence as an exception to immigration instructions.
