The Tribunal took into consideration the husband’s close relationship with his family who reside in New Zealand, and in particular his elderly mother for whom he was the primary carer (para. 19). It further considered the appellants’ integration into the community in New Zealand, and the integration of their eldest child into the school system.
The Tribunal is required to consider the best interests of child appellants under Art. 3 of the 1989 United Nations Convention of the Rights of the Child. It commented that the children are inherently more vulnerable to natural disasters and the adverse impacts of climate change, concluding that it was clearly in the best interests of the children to remain in New Zealand (para. 25).
Exposure to the adverse impacts of climate change was considered by the Tribunal to be a humanitarian concern, as reflected by state practice. The Tribunal noted that, though they vary in forms of relief and are all temporary in nature, several states have policies in place to grant protections due to climate change and environmental degradation (para. 27).
Furthermore, the Tribunal noted that a 2014 Intergovernmental Panel on Climate Change (IPCC) report acknowledges the current and future impacts of climate change on human wellbeing, and that it is widely accepted that climate change can interfere with the enjoyment of human rights. Such adverse impacts were already apparent in Tuvalu through the presence of coastal erosion, flooding, increasing salinity of fresh water, destruction of sources of sustenance, destruction of property, increasing frequency of climate-related hazards, increasing likelihood of drought, increasing likelihood of dengue fever and water borne diseases (para. 29).
The Tribunal granted residence visas to the family. It was held that due to the integration of the appellants in the community and their family ties in New Zealand it would be an ‘unusually significant disruption’ to deport them (para. 31).
Potential takeaways for future climate migration litigation
- Obiter. The Tribunal accepted that exposure to impacts of natural disasters can constitute a humanitarian circumstance. However, for appeals such as this, it must be established that it would be unduly harsh or unjust to deport a particular appellant as opposed to a contemplating it as a broader humanitarian concern.