Daman Kumar was born in New Zealand and has lived all his life here, but was born six months after an immigration law change. Photo: Supplied
Labour says ministerial intervention to prevent the deportation of 18-year-old Daman Kumar is a "no-brainer", but will not say whether it is time for the law to be reviewed.
Kumar was born in New Zealand and has lived all his life here, but because he was born six months after an immigration law change, he has been an overstayer since the moment he was born.
In 2006, the then-Labour government passed a law that meant children born in New Zealand only acquire citizenship if at least one of their parents is a citizen, or entitled to be in New Zealand indefinitely.
At the time of Kumar's birth, his parents were overstayers.
His sister was born in 2002, before the law change, meaning she is allowed to stay in New Zealand lawfully.
Kumar and his mother Sunita Devi were advised to leave New Zealand by Monday 17 February or be served a deportation order by Immigration New Zealand.
Associate Immigration Minister Chris Penk is considering advice on the matter, meaning Kumar's deportation is on hold for now while it is reviewed.
Penk is yet to decide whether to intervene in the case.
Labour's immigration spokesperson Phil Twyford said the compassionate thing to do was to to grant Daman Kumar residence. Photo: RNZ / Samuel Rillstone
Labour's immigration spokesperson Phil Twyford said the fact Kumar is in New Zealand unlawfully is through no fault of his own.
He said if the system was working as it should, then Penk would intervene and allow Kumar to stay in New Zealand.
"It wasn't a result of decisions [Kumar] made. And I think the sensible and compassionate thing to do is to grant him residence, and certainly not to deport him. When I was associate minister, I intervened in probably dozens of cases like this, and I think it's the sensible thing to do," he said.
Twyford said the immigration system did have rules, but the government of the day tried to make sure they were fair and consistent, and the appeal structure allowed for people who had reached the end of the line to ask the associate immigration minister to look at the case.
He was reluctant, however, to say whether the law which a Labour government introduced would be reviewed should Labour return to government.
"I wasn't around at that time. It is a principle, that in many countries around the world is upheld, that if you're born in a jurisdiction you should be entitled to citizenship. There's a counter-argument that can encourage undocumented migrants to try and have kids in a country in the hope of securing citizenship. There are arguments on both sides of this issue," he said.
"Bear in mind that we don't know how many cases there are, but it's at least possible that there are many people who, because of the way the law is now, are not choosing to become undocumented, and not choosing to have kids when they are undocumented in a country where they don't have the right to stay. So the counterfactual is unclear, to say the least."
Twyford said the discretion ministers and associate ministers can exercise was an important protection.
"It means compassion can be brought to bear even when people fall outside the rules," he told Morning Report.
The Prime Minister would not speak about the case on Monday, saying it was up to Penk to review.
"Immigration New Zealand make a lot of those early decisions, as has been the case here. In fairness, I need the associate minister to review it and make his own decision," Christopher Luxon said.
The United States currently has 'birthright citizenship,' though President Donald Trump has signed an executive order to end the practice.
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