The Cook Islands High Court has found that the country’s immigration law that offers preferential treatment to New Zealand citizens over those from other nations is “invalid”.
New Zealand passport holders only need to wait five years to apply for permanent residency under the current rules while all nationals with other citizenship need to wait a minimum of 10 years. The same rule also applies to spouses of Cook Islanders.
Cook Islands charity, Friends of Fiji, had challenged in court the threshold for permanent residency under the Cook Islands Immigration Regulations (CIIR).
Tangaroa Vakalalabure, who heads the group, told Cook Islands News in 2022 shortly after the regulations came into effect the rule was “racist” and “discriminatory”.
The government argued the policy reflected Cook Islands special constitutional relationship, which allows Cook Islanders live and work in New Zealand.
Justice Patrick Keane granted the application for a declaration by finding that the regulation granting preferential treatment was not valid, as it had not been properly supported by an act of Parliament.
“I conclude, that the NZ permanent residence preference, expressed in reg 8(2)(d), CIIR 2023, is invalid for that reason firstly; and secondly because, despite the wide power to delegate CIIA 2021 confers, it is beyond the scope of that Act.”
He did not make a declaration about whether it was discriminatory in a way that contravened the Cook Islands constitution.
Friends of Fiji legal lawyer Lavi Rokoika said the judgement was a victory for Friends of Fiji.
“I know that a few people in the Cook Islands were very disappointed when the regulations came out,” she said.
“For us it’s a triumph as an organisation and for all foreigners in the Cook Islands.”
Rokoika said Justice Patrick Keane found the immigration regulations went “over and above” the powers given to it by Parliament through the Cook Islands Immigration Act (CIIA 2021) that passed in December 2021.
“You can give preferential treatment but the authority to do that is only vested in Parliament,” she said.
She said the regulations did not go through the vigorous legislative process that an act would.
Rokoika said she did not think the regulations would be changed to make New Zealand passport holders wait 10 years for permanent residency or allow citizens from other nations apply after five years.
Instead, she said Parliament would likely change the Immigration Act to align with the current immigration regulations.
“That’s what I would do to save face but then again that’s my opinion.”
Rokoika said the government would likely need to make a change to the Act or regulations prior to August 2025 – before the next permanent residency expression of interest opens.
“Before they do [the next expression of interest] they should be able to be legitimate in whatever policy that they put forward.”
Rokoika said however government deals with the issue it will not affect any permanent residency decision given in 2022, because the Chief Justice’s decision was not retrospective.
