9 Sep 2021

NZ woman given MIQ spot after launching legal action

From Checkpoint, 5:08 pm on 9 September 2021

A pregnant woman has been granted a space in MIQ after launching legal action against the Health Minister and Ministry of Business, Innovation and Employment.

Bergen Graham had been trying to get home to New Zealand from El Salvador via the United States.

Graham was living with her husband Oscar in his home country of El Salvador when she became pregnant in February.

Straight away he applied for a New Zealand visa, but it was June by the time it was approved, and they could not get MIQ spots through the voucher system. As Bergen's El Salvador visa was about to expire, the couple started the journey home without guaranteed MIQ and are in the United States.

Bergen's pregnancy is deemed high risk. Three separate specialists have provided letters confirming that and say, because of a blood condition, she requires medication and specialist monitoring.

Bergen Graham and husband Oscar.

Bergen Graham and husband Oscar. Photo: Supplied

Her lawyer Francis Joychild QC told Checkpoint Graham had made six applications online for an MIQ spot, and made three complaints.

The filed in the High Court on Monday but with 24 hours of launching legal action, she was offered an MIQ voucher.

"She got the voucher yesterday and we've filed a notice of discontinuance of the legal claim today. That was part of the settlement."

Joychild says legal action over MIQ bookings will continue with others taking it on.

She says how the MIQ system is currently operating is a breach of Section 18 of the Bill of Rights Act.

"Basically we believe the system is broken and we argued that there's no prioritisation of New Zealand citizens over anyone else in the online system and that won't be changing with the new portal arrangement. The vast majority of people who won't to get to New Zealand, including it's own citizens have got to compete together for very limited spaces in the online system."

She says the government's criteria for emergency allocation is "extremely high".

You can have the most dire need to get home, even for urgent medical treatment and there is no guarantee you will be given a space, she said.

With the pause on MIQ bookings at the moment, there is currently no way any citizen can get into the country, she said.

Among other things the claim alleges there's insufficient MIQ spots available to New Zealand citizens, including those ring-fenced for emergencies.

At the same time as the government was declining New Zealanders, including Graham, Joychild says it was handing out a large number of spaces for MIQ for foreign athletes and staff attending a mountain bike festival among others.

Speaking of the MIQ system, Kris Faafoi told Checkpoint the resurgence of cases during the Delta outbreak has put a massive strain on the system.

Faafoi says as soon as the government is able to free up spaces, it will.

"It's a bit of a game of tetris."

No group bookings have been okayed since the beginning of Delta outbreak, he says, and the government is constantly reviewing future group bookings they've committed to and balancing these with the current need.

Graham's judicial review is likely to be taken by other claimants after she was granted an emergency MIQ spot at the eleventh hour.

Grounded Kiwis - a group of New Zealand citizens living overseas - has been urging the government to overhaul its MIQ booking system.

London-based lawyer and New Zealander Alexandra Birt is part of that group. She said the system needs to change, and if it has to go to court for that, it should. 

She estimates there could be hundreds of people who would fit the profile to take legal action further.