Climate refugees – can you claim protection in New Zealand
New Zealand's legal approach towards climate refugees is primarily governed by the Immigration Act 2009, which incorporates the 1951 Refugee Convention and establishes protected person status under the International Covenant on Civil and Political Rights (ICCPR).
The current legal framework does not explicitly accommodate individuals displaced by climate change, as demonstrated by the following recent cases: Teitiota v The Chief Executive of The Ministry of Business Innovation and Employment; C and Anor v The Chief Executive of The Ministry of Social Development [2019] NZHC 2155; Aw (kiribati) v a Refugee and Protection Officer [2023] NZHC 1806.
These cases establish that environmental degradation from climate change, in the absence of establishing additional elements of persecution which would be linked to Convention grounds, is currently insufficient to obtain refugee protection.
Despite rejecting claims based solely on climate change impacts, the New Zealand courts have deliberately left open the possibility that severe environmental degradation could, in appropriate cases, create a pathway to protection.
While refugee claims under the Refugee Convention have proven difficult to establish for climate-affected persons, the "protected person" pathway under section 131 of the Immigration Act, may offer an alternative approach to these claims in some cases.
The protected person provision under the Immigration Act, is based on the ICCPR, which requires recognition of protected persons where "there are substantial grounds for believing that person would be in danger of being subjected to arbitrary deprivation of life or cruel treatment if deported from New Zealand."
New Zealand's legal framework regarding climate refugees is characterised by a cautious approach which maintains the traditional boundaries of refugee and protected person status, while acknowledging the potential for climate change to create protection pathways in appropriate cases.
The law as it currently relates to claims of this nature can be summarised as follows:
There is no distinct legal category: "Climate refugees" are not recognised as a distinct category under New Zealand law. Therefore, the challenge for individuals affected by climate change, is that they must establish eligibility under the existing refugee or protected person categories.
High threshold: Environmental degradation from climate change, without additional elements of persecution linked to Convention grounds or cruel treatment/arbitrary deprivation of life, is likely to be insufficient to support a claim for protection.
Population-wide impact challenge: The fact that climate impacts typically affect entire populations equally, presents a significant hurdle for establishing the persecution element that is required for refugee status.
Governmental response and relevance: The adequacy of governmental response to climate impacts may be relevant.
Socio-economic considerations: Courts have recognised that extreme socio-economic deprivation resulting from climate impacts could potentially establish persecution.
Future development potential: Courts have deliberately avoided foreclosing future successful claims, acknowledging that appropriate circumstances might arise where climate impacts could create valid refugee or protected person claims.
Dual pathways: Protection might be sought either through refugee status (requiring persecution linked to Convention grounds) or protected person status (requiring arbitrary deprivation of life or cruel treatment). The latter is likely to be a more attractive option to claims of this nature.
Based on the current jurisprudence, establishing eligibility for protection based predominantly on climate change impacts, remains exceptionally difficult under New Zealand law. However, as the effect of climate change potentially intensifies or manifests in ways that more clearly implicate on the core protections recognised under refugee and human rights law, it is anticipated that we may likely see an emergence of successful claims in the future.
Our immigration lawyers are specialised in immigration law which encompasses refugee, human rights, and deportation. If you have concerns about returning to your home country, or you have been made liable for deportation, we encourage you to contact one of our team for advice.
