'She is a Kiwi': High-needs child wins appeal after being denied residency

A child born in New Zealand to South African parents faced having to leave the country permanently because she developed a severe neurological condition that was likely to place a burden on the health and education system.

The girl, who was diagnosed with the serious medical condition eight months after she was born in 2019, was initially on a visitor visa.

But she had been in New Zealand unlawfully since June 2021 until an interim visa was granted in June 2024 while her family, already residents, sought to fix the “extremely stressful” situation.

That application for permanent residency was declined by Immigration New Zealand (INZ) as the girl, who is now in a wheelchair and needs special treatment, did not have an acceptable standard of health.

The family challenged that ruling to the NZ Immigration and Protection Tribunal, which found INZ was correct, in law, to decline the application for permanent residency.

However, it found special circumstances existed, and tribunal member Larissa Wakim said in a recently released decision that Immigration Minister Erica Stanford had now granted residence, as an exception.

Wakim said it was not difficult to appreciate the significance of the child’s situation: a young girl with normal cognitive abilities but significant physical limitations, whose life depended on specialised medical treatment.

Child born a year after parents moved to NZ

The child was born in New Zealand in 2019, about a year after her parents and an older brother arrived from South Africa, after the father was granted a work visa.

Eight months after she was born, she was diagnosed with a “severe, chronic or progressive neurological disorder”.

A year later, her father applied for residency under the accredited employer category.

His wife and son were included and, although the daughter was declared, she was not included in the application, Wakim said.

The parents explained it was because of delays in documentation arriving from South Africa, caused by a processing backlog because of the Covid-19 pandemic.

They planned to submit a residency application for their daughter once they had the documents.

INZ’s final assessment of the father’s application said the daughter was not required to be included in the application.

As an infant, she was deemed to hold a visitor visa, based on her father’s work visa, which was valid until June 2021.

The family, except for the young daughter, were granted permanent resident visas under a category for applicants earning over an income threshold.

Condition ‘likely to impose significant demands’ on NZ services
It wasn’t until July 2022 that the family learned the girl did not hold a valid visa.

This was triggered by a residency application from South Africa by an older half-sister, her mother’s daughter from an earlier relationship.

The mother was advised to request a visa for the child, to be granted as an exception to instructions, but no request was made until May 2024, when the child was granted a six-month visa, Wakim said.

In late 2025, the family was told their child may not have an acceptable standard of health.

A medical assessor for INZ said the condition was “likely to impose significant costs and/or demands on New Zealand’s health services”.

The assessor was not swayed by new medical information presented earlier this year which confirmed the earlier assessment.

The family received a further “letter of concern” in March, which said that, because the child was likely to be eligible for funding for her physical needs at school, she was likely to impose “significant costs or demands on New Zealand’s special education services”.

The child’s application for residency under the dependent child category was declined in June this year.

An appeal was lodged in July and heard as a priority, partly because of the child’s health vulnerabilities, Wakim said.

The immigration appeals authority heard evidence that the girl used a wheelchair and required feeding via a tube, and received specialised treatment and medication that was not available in South Africa.

Medical experts said that, without access to such treatment, she would “certainly die”.

The severity of her physical impairment meant international air travel, should she have to leave New Zealand, presented an “unsurmountable medical risk”.

A summary of her medical history listed 28 hospital admissions to Starship children’s hospital since 2019, including multiple admissions for respiratory illnesses.

Despite INZ’s legally correct decision to decline residency, the tribunal had the power to exercise discretion over whether special circumstances existed.

The family’s representative for the appeal submitted that exceptional circumstances of a humanitarian nature existed, and that her removal from New Zealand would be unjust or unduly harsh.

She said it would not be contrary to the public interest to allow her to remain.

‘She is a Kiwi’

“In summary, the representative submits that the appellant was born in New Zealand and has never left. She is a ‘Kiwi’,” Wakim said in her decision.

The tribunal accepted evidence from medical specialists that the treatment keeping the child alive was not available in South Africa and that, without it, a premature death was likely.

It also accepted a psychologist’s opinion that the uncertainty was causing “significant psychological distress” for the child and her family.

Wakim said the tribunal acknowledged residency would entitle the child to publicly funded medical care and special educational services until she was 21, and possibly welfare support beyond then if her family was unable to provide what was needed.

“Regardless of these costs, the tribunal has no hesitation in finding that the appellant’s best interests are served by remaining permanently in New Zealand with her family.

“The appellant was born here, and New Zealand is the only home she has ever known.”

Tracy Neal is a Nelson-based Open Justice reporter at NZME. She was previously RNZ’s regional reporter in Nelson-Marlborough and has covered general news, including court and local government for the Nelson Mail.