An Otago University law professor says there's a need for a prioritisation system within MIQ bookings with people left waiting over a year to be granted entry to the country.
Legal action is brewing by Grounded Kiwis - which advocates for vast numbers of expats who want to get home but cannot.
With the demand for MIQ rooms massively outstripping supply, the right to return home is hugely constrained by the country's border policy.
Otago University law professor Andrew Geddis told Checkpoint there were some questions around the legality of the government's operation of the MIQ system.
"Under the bill of rights act people have a right to return to New Zealand that's sort of written into our rights, those rights can however be limited in ways that are demonstrably justified ... obviously the existence of Covid and the fact that we're pursuing an elimination strategy which we can't have Covid in New Zealand under that strategy means we have to have very tight border controls."
Geddis said the question was when the border controls tip over into being basically a ban on returning.
"The problem is because MIQ is so restricted and limited and because the way MIQ is being distributed is on this luck basis there could be people who have been trying to get back for very considerable amounts of time who have been unable to do so as opposed to some people who may on the very first try be able to get back in.
"Those sort of inequality, unfairness aspects are perhaps the Achilles heel in the way the process is being run."
However, Geddis said there was not a determined length of time that the government could legally refuse to grant entry to a person to return to their country.
"I can't say that there is an absolute punitive time in which you must be allowed to get into the country because it all depends on the reasons why we have the limits in place.
"The reasons why we have the limits in place is because there is a pandemic out there that's killing lots of people and if it gets into our country it will kill lots and lots of people here and that hasn't gone away so the fundamental problem is still as great now as it was 18 months ago."
However, Geddis said if there were people who had been trying to get back into the country for 18 months without success then it was clear there was a problem with the system.
"The system should've been set up to allow them to at some point get priority to enter the country ... is the problem that for 18 months we've had these restrictions or because there just aren't enough places for everyone who wants to come back?"
"There has to be some sort of rationing and that form of rationing is going to create some feelings of unfairness. Everyone thinks they've got a really good reason to get back but there aren't enough places to let people in and if we allow more people to come in under looser restrictions then we increase the risk of Covid getting into New Zealand and people die."
On allocation of MIQ spots, Geddis said there had been decisions made that could be deemed to be legally unjustifiable.
"Those sorts of decisions can be looked at and do have to be in themselves justifiable, rationable and fair, on that basis, there are perhaps some decisions that have been made under the MIQ process that may not pass that muster.
"Why was the English Netball team allowed to come into New Zealand to play tests in front of 100 people and take up spots which New Zealand citizens, who have a right to return to their country, were rejected."
Geddis said although the MIQ system itself was justifiable, decisions around the allocation of MIQ rooms for specific groups could be challenged in the legal system and deemed unlawful if they were not sufficiently justified.
He said if someone was to challenge the MIQ system, the courts would be likely to give the government a high amount of discretion due to its need to balance risk and benefit.
"It's a lot of high balancing between risk and benefit and so on and a judge may think I'm not in the best position to make that call, we've got elected politicians, we've got different models being put up, ultimately voters would choose who's got the best ideas.
However, Geddis pointed out the case of Bergen Graham in which a pregnant woman was 'miraculously' given a MIQ spot after launching a lawsuit after the government rejected her emergency application for a return to the country.
Geddis said these kinds of individual cases were useful to ensuring adequate attention was being paid to decisions being made around MIQ.
However, he said legal action targeted against the entire MIQ system would be much more difficult to undertake.
"In terms of going to court to challenge the MIQ system as a whole, it's very difficult to do so for a couple of reasons, first of all, there is quite actually quite good reason for having a MIQ system and secondly the amount of evidence you would have to get to show how the MIQ system is working in practice... that would be very hard to collate, the government hold it all and they're not being incredibly forthcoming in why some of these decisions are being made."
"The Ombudsman is already looking at the system overall and of course the Ombudsman doesn't look at just the strict legality they also look at the fairness and the reasonableness so there's that avenue which is being pursued."