Rosario Biltoft Nielsen and his mother Kirsten Biltoft face deportation due to Rosario's handicaps, despite not relying on the government for any assistance.

An immigrant family faces being kicked out of the country after their mother failed to include details of her disabled son on her residence application.

Kirsten Biltoft and her three boys immigrated from Denmark in 2011 after a divorce.

Chris McKeen/Fairfax NZ Clockwise from top left: Ayan Biltoft Nielsen, Kristian Biltoft Nielsen, Rosario Biltoft Nielsen and mother Kirsten Biltoft face moving back to Denmark after Rosario was refused a new student visa.

She was granted a business visa and her sons, including youngest Rosario, were given student visas.

In 2012 Biltoft applied for residency with Rosario but later withdrew him from her application after advice their applications would be denied because of his health.



Rosario, who is a 16-year-old with Down Syndrome and autism, has delayed development and functions at the level of a two-year-old.



Having been bought up in Denmark he has minimal understanding of English and is home schooled.



He needs assistance dressing and will not be able to live independently in the future.

Rosario is eligible for funding under the Ongoing Resourcing Scheme (ORS), but the family has made no claims.



The Biltofts believe their investment in New Zealand should more than compensate for the social cost of granting Rosario residence.



"He hasn't cost New Zealand a penny at all, we've supported him ourselves, totally," Biltoft said.



A spokesman for Immigration Minister Michael Woodhouse said: "The Minister's priority is to ensure that all applicants understand their rights of review and appeal. The Minister is satisfied that is the case in this situation."



An appeal was lodged with the Immigration and Protection Tribunal, but while it found there were exceptional humanitarian reasons for granting him a visa they denied the appeal because it would not be "unduly harsh" to send him to Denmark.

The authority said the Biltofts would not have been granted residency if Rosario's name had not been removed from his mother's residncy application as he would not have met the good health requirement or been granted a waiver.

A six-month delay was granted on the deportation, to allow the family to consider other options such as an appeal to the Immigration Minister.

Biltoft said she completely understood Immigration NZ was following the law and praised them in their dealings with the family, but believed there should be an amendment to allow the family to pay for Rosario's care themselves.

She suggested the introduction of an annual conditional student visa for homeschooling that would be reliant on the family's proof of income and health insurance for the child to ensure they were not a burden.

"Maybe New Zealand is concerned by the extra cost but it's not good just to slam the door, there must always be a road to take."

When no such avenues existed there were risks of human rights abuse and discrimination, she said.

Rosario's brothers, who run an importing business with their mother, said the uncertainty had made it difficult for them to fully commit to the company.

They would be forced to withdraw their investment and return to Denmark if their brother was deported, something they didn't want to do.

Immigration NZ area manager Michael Carley said all non-citizens coming to New Zealand must have an acceptable standard of health so they did not impost undue costs on the public health system.

After careful consideration Rosario's visa was denied because of his health and that he did not meet the definition of a "domestic student" as he did not have a residence visa application under consideration.

The Tribunal had noted no separation issues would arise if Rosario was deported and he would have more contact with his father back home, he said.

Disability Rights Commissioner Paul Gibson said the Human Rights Commission was unable to receive complaints about immigration matters or take part in legal proceedings relating to immigration matters and was unable to comment on the case.