IMMIGRATION
ACT REVIEW
DISCUSSION PAPER
DOL10079 MAR 06
APRIL 2006
MINISTER’S FOREWORD
I’m pleased to be launching the public consultation on the Immigration
Act review – the most comprehensive review of immigration legislation
in 20 years.
I encourage New Zealanders to provide feedback, and contribute to making New
Zealand’s immigration framework stronger, more flexible and fit for the 21st century.
Immigration helps build New Zealand – contributing to the diversity of our communities,
the shape of our workforce and the growth of our economy.
The government’s goal for immigration is to facilitate the entry of people with the skills
we need, and assist them to settle into a new life in a new country – while maintaining
the security of our borders.
We intend to deliver this and have begun work to make sure we have the best possible
immigration system. This is based on three pillars: legislative reform; a strategic review
of key aspects of New Zealand’s immigration policy; and supporting operational and
process changes within the Department of Labour.
The Immigration Act is the foundation for the immigration policies and processes that
allow the entry of workers, students, visitors and residents into New Zealand, and sets
the rules that govern their stay here.
Since the current Act came into force in 1987 there have been major changes in the
international environment and New Zealand’s priorities. The extent of these changes
means it’s timely to properly review and update our legislative framework.
Today, New Zealand is facing new challenges. In an environment of low unemployment
and skill shortages, it is imperative that we have legislation which is responsive to New
Zealand’s labour market needs, with the flexibility to allow for future changes.
Globally, immigration is changing. People are becoming more mobile, often not settling in
one place for a long time – which is contributing to increasingly diverse communities. It
means we also have to be at the top of our game to respond to international competition
to attract skilled and talented people.
There is greater awareness, too, that these increased movements of people require us to
manage risks and maintain the integrity of our border and systems.
This international backdrop is why New Zealand needs modern legislation which allows us
to make simpler, fairer and faster decisions, to guide our immigration systems and
processes into the 21st century.
At the same time as improving our security, the new Act will support our drive for higher
levels of client service, to facilitate the entry of migrants who have the potential to make
a strong contribution to our economy and society.
I must stress that this document presents a range of options for public discussion and is
not Government policy. I look forward to your contributions towards this review.
HON DAVID CUNLIFFE
Minister of Immigration
TABLE OF CONTENTS
SECTION 1: OVERVIEW ........................................................................... 1
1.1
1.2
1.3
1.4
1.5
1.6
1.7
Introduction ...................................................................................... 1
The wider immigration change programme ............................................. 2
The objectives of the Immigration Act review .......................................... 5
The scope of the Immigration Act review ................................................ 6
What contribution will the Immigration Act review make to the change
programme? ...................................................................................... 7
The process for gathering feedback ......................................................12
Relevant links....................................................................................12
SECTION 2: EXECUTIVE SUMMARY ........................................................ 13
SECTION 3: PURPOSE AND PRINCIPLES ............................................... 23
3.1
3.2
3.3
What is the purpose of New Zealand’s immigration legislation? .................23
3.1.1
What are New Zealand’s immigration-related interests? ...........24
3.1.2
Should a purpose statement be included in the legislation? .......26
What principles should underpin immigration legislation? .........................28
What level of detail should be in the primary legislation? .........................29
SECTION 4: THE VISA AND PERMIT SYSTEM.......................................... 32
4.1
4.2
Does the visa, permit and exemption system meet current and
future needs? ....................................................................................33
Which of the current visa and permit exemptions should be
re-examined? ....................................................................................42
SECTION 5: DECISION-MAKING ........................................................... 45
5.1
5.2
5.3
Who should make individual immigration decisions? ................................46
In which cases should potentially prejudicial information and
reasons for decisions be given to immigration applicants? ........................54
What additional tools are required for effective decision-making? ..............58
SECTION 6: EXCLUSION AND EXPULSION ............................................. 63
6.1
6.2
6.3
What legislative provisions are required for exclusion from entry
to New Zealand? ................................................................................64
What grounds and processes for expulsion should be established in
legislation? .......................................................................................68
What penalties should apply following expulsion?....................................78
SECTION 7: ACCESS TO REVIEW AND APPEAL ....................................... 81
7.1
What avenues of review or appeal should there be for decisions on
temporary entry or residence? .............................................................83
7.1.1
7.2
What role should an independent appeal authority have
in regard to appeals against residence decisions?.....................90
What avenues of review or appeal should there be for expulsion
decisions? ........................................................................................94
7.2.1
What test should an independent appeal authority apply
when considering an appeal against expulsion? ..................... 101
SECTION 8: THE INDEPENDENT APPEAL BODIES................................. 105
8.1
8.2
How should the independent appeal bodies be structured? ..................... 105
Which government department should service the immigration
and refugee appeals bodies?.............................................................. 114
SECTION 9: THE USE OF CLASSIFIED INFORMATION ......................... 117
9.1
9.2
9.3
How should classified security information be used in immigration
decision-making?.... ......................................................................... 119
How should classified information, other than classified security
information, be used in immigration decision-making?........................... 125
How should classified information (security or otherwise) be used in
refugee/protection decision-making?................................................... 130
SECTION 10: COMPLIANCE AND ENFORCEMENT ................................. 134
10.1
10.2
What powers do immigration officers need to monitor and enforce
compliance with the Immigration Act?................................................. 136
10.1.1
What provision should there be for requiring organisations
to provide information to assist with an immigration
investigation? ................................................................... 136
10.1.2
Should immigration and Customs officers have the power to
temporarily detain a person pending the arrival of Police? ....... 143
10.1.3
Should immigration officers have the same powers of
entry and search as Customs and Police have in the
immigration context? ......................................................... 147
What provisions are required to deal with the immigration status of
a person who is in New Zealand unlawfully?......................................... 151
SECTION 11: THE USE OF BIOMETRICS ............................................... 155
11.1
Should immigration officers be able to require, use and store certain
types of biometric information, and request the voluntary provision
of other types of biometric information? .............................................. 157
SECTION 12: DETENTION .................................................................... 169
12.1
12.2
12.3
What is the appropriate maximum period for detention without a
warrant in expulsion cases? ............................................................... 171
What is an appropriate review period for warrants of commitment? ......... 176
Is it ever necessary to detain a person for longer than three months
while arranging their expulsion from New Zealand?............................... 179
12.4
12.5
12.6
Should warrants of commitment require weekly renewal if a person
is serving a prison sentence? ............................................................. 184
Should detention be available for immigration purposes at the
border and onshore? ........................................................................ 187
Should the Immigration Act give practical support to the
Chief Executive’s current power to designate a place of immigration
detention? ...................................................................................... 192
SECTION 13: THE ROLE OF THIRD PARTIES ........................................ 197
13.1
13.2
13.3
13.4
13.5
When should a person’s immigration status be known to third parties
delivering a publicly-funded service?................................................... 198
What legislative provisions are required to facilitate sponsor
benefits and enforce their responsibilities? ........................................... 203
What legislative provisions are required to facilitate employer
benefits and enforce their responsibilities? ........................................... 210
What legislative provisions are required to facilitate education
provider benefits and enforce their responsibilities? .............................. 216
What legislative provisions are required to facilitate carrier benefits
and enforce their responsibilities?....................................................... 221
SECTION 14: NEW ZEALAND’S ROLE AS AN INTERNATIONAL
CITIZEN .............................................................................................. 225
14.1
14.2
14.3
14.4
Which of New Zealand’s immigration-related international obligations
should be incorporated into immigration legislation? ............................. 228
How should refugee/protection status be determined?........................... 233
14.2.1
What legislative provisions are required for broader
protection status determination? ......................................... 233
14.2.2
What legislative provisions are required for refugee status
determination?.................................................................. 237
14.2.3
What legislative provisions are required to allow robust
identity and credibility verification? ...................................... 239
14.2.4
What legislative provisions are required to appropriately
limit subsequent claims? .................................................... 243
14.2.5
Are legislative provisions required to expedite determination
in some cases? ................................................................. 246
What provisions are required for the expulsion of protected persons? ...... 249
Should New Zealand become party to the 1954 Convention Relating
to the Status of Stateless Persons? ..................................................... 253
DISCLAIMER
This document is provided for public discussion and feedback and does not constitute
government policy. The New Zealand Government does not take responsibility for any
actions taken in reliance on the information in this document.
SECTION 1: OVERVIEW
Scope of section
1.1
Introduction
1.2
The wider immigration change programme
1.3
The objectives of the Immigration Act review
1.4
The scope of the Immigration Act review
1.5
What contribution will the Immigration Act review make to the change
programme?
1.6
The process for gathering feedback
1.7
Relevant links
1.1
Introduction
1
1
Immigration plays an important role in building New Zealand society
and encouraging economic growth. Skilled and family migrants,
business people, temporary workers, students and visitors make
valuable contributions to our economy and strengthen our
communities. Immigration also plays a role in fulfilling New Zealand’s
international obligations.
2
At the same time, immigration raises complex challenges for New
Zealand. Issues range from questions about our national identity and
our role on the international stage, to the impact of immigration on
the economy, labour market, social development, health, education,
law and order, housing and transport infrastructure.
3
The government is reviewing the Immigration Act 1987 (the
Immigration Act) to ensure that the legislation enables New Zealand
to both facilitate the entry of the people New Zealand needs and
effectively protect our border. The purpose of this document is to
identify the key issues and seek your views on how they should be
addressed.
1
1.2
The wider immigration change programme
4
Immigration is essential to New Zealand’s economy in a rapidly
globalising world. Powerful forces are changing the way immigration
works and the immigration system needs to respond to this.
5
The Immigration Act review is therefore part of a broader
immigration change programme focusing on skills, security and
settlement. The programme aims to improve the immigration system
to ensure that:
6
7
•
New Zealand has the skills, talent and labour it needs, now and in
the future
•
New Zealanders are confident of the security of our border, and
•
migrants and refugees settle well and integrate into communities.
The three interlocking components to the immigration change
programme are:
•
developing a strong legislative foundation
•
repositioning the policy framework, and
•
implementing a new business model.
The change programme as a whole will ensure that we have a
modern immigration service, fit for the globally competitive
environment of the 21st century. It will enable New Zealand to
facilitate high-value, low-risk customers and effectively protect the
border. This will provide a well-balanced and integrated framework
that is focused on supporting people to connect and contribute.
Taken together, the change elements will further the government’s
goals of economic transformation, strong national identity, and
security and opportunities for families.
Drivers for change
8
9
2
This immigration reform programme takes place within a changing
global environment that presents opportunities and challenges. The
current Immigration Act dates from 1987. There have been
significant changes internationally in the last 20 years, including:
•
greater people flows around the world
•
greater competition for skills, talent and labour
•
heightened risk and pressure on the border, and
•
a more diverse population
settlement and integration.
requiring
a
sharper
focus
on
We need to reposition the immigration system to face these
challenges. Diagram 1 below summarises the change programme,
demonstrating how it is integrated with common drivers and goals.
2
Diagram 1: Summary of change programme and its environment
Drivers of
Goals to
Integrated change
change
better position
programme
immigration
Increasing:
•
circulation of
people
•
competition
•
risk
•
diversity
•
Skills
•
Security
•
Settlement
•
Develop a strong
legislative
foundation
Objective
Supporting New
Zealand to achieve:
•
Economic
transformation
•
Reposition the
policy framework
•
Strong national
identity
•
Implement a new
business model
•
Security and
opportunity for
families
Greater people flows around the world
10
New Zealand, like many parts of the world, has gone through a
period of transformation over the past 20 years. Flows of people
travelling and migrating have increased and diversified. Our
international connections have increased through trade, tourism and
business activity. Information about New Zealand has become more
accessible, communication easier and travel cheaper.
11
To illustrate this growth, permanent immigration flows have
increased significantly, from 8,500 approvals in 1985 to almost
49,000 in 2004/05. Temporary entry has experienced phenomenal
growth over the same period, with visitor arrivals escalating from
690,000 to 2.4 million. The 21,400 temporary workers and students
who arrived in 1985 is small compared to the 100,000 plus who
entered in 2004/05. Tourism and international education feature in
New Zealand’s top five largest export industries.
Greater competition for skills, talent and labour
3
12
Immigration is a key ingredient in a strong labour market that builds
productivity, participation and skills. New Zealand employers,
businesses and communities are seeing the benefits of both
permanent migrants and people on temporary permits. Strong
economic growth, ageing populations and shrinking fertility rates in
the developed world have increased world-wide competition for
people with skills as well as for unskilled labour.
13
Unemployment trends over the last 17 years illustrate the changes in
our labour market. Unemployment rose sharply in the late 1980s,
peaking at 10.3 percent in 1991. This compares with the current low
of 3.6 percent. These changes have led to increasing pressure on
immigration to help meet immediate skill and labour requirements.
3
Heightened risk and pressure on the border
14
Along with increasing competition and flows of people, there is the
heightened threat of international terrorism, illegal migration and
trans-national organised crime. These issues have sharpened the
focus on security and the need to establish effective border controls
and enforcement measures. Security measures need to complement
an immigration system that facilitates the entry of high-value
migrants and travellers.
15
A sharpened focus on security means it is increasingly important to
be clear about our international human rights obligations. World
refugee numbers have steadily fallen to around 9 million – a 25-year
low. While refugee resettlement remains important, new challenges
have arisen, including how we address a broader range of
international obligations, such as the Convention Against Torture.
Increasing diversity and a sharper focus on settlement
16
Over the past two centuries, increasing numbers of migrants from
Australia and Europe, followed by the Pacific and Asia, have settled
in New Zealand. Immigration has shaped our ethnic diversity and
remains a key contributor to New Zealand’s development today.
17
A combination of natural population growth and migration has
increased our population from 3.3 million in 1986 to over 4.1 million
today. In 1986, around 15 percent of the population was born
overseas – by 2001, this had reached almost 20 percent.
18
Growing diversity raises particular challenges for New Zealand in
terms of nation building. Achieving good settlement outcomes can
continue to be an issue for subsequent generations of migrant and
host communities. Settlement policy will become increasingly
important as a means of ensuring integration.
19
It is important to ensure that the immigration system
positioned to face these emerging challenges. The
change programme will ensure that we have a modern
service, fit for the globally competitive environment
century.
is optimally
immigration
immigration
of the 21st
Responsive legislation
20
4
Responsive immigration legislation is the foundation of the change
programme. Responsive legislation is required to accommodate
changes in the global security environment and in social and
economic conditions that motivate migrants’ behaviour. Immigration
legislation needs to facilitate the entry of the high-value customers
we need, while providing the framework to effectively protect the
border. It needs to be able to respond to the current skills shortages,
and to cope in times of high unemployment. The unpredictability of
what lies ahead for New Zealand also reinforces the need for flexible
legislation for the future.
4
1.3
The objectives of the Immigration Act review
21
22
5
The government is committed to ensuring that immigration
legislation is clear, comprehensive and appropriate to New Zealand’s
needs. The objectives of the review are to:
•
ensure that New Zealand’s interests are protected and advanced
•
ensure compliance with international obligations
•
establish fair, firm and fast decision-making processes, and
•
modernise and simplify the legislation.
The government is particularly focused on both:
•
facilitating the entry and stay of people who meet New Zealand’s
needs, and
•
managing any risks associated with immigration.
5
1.4
The scope of the Immigration Act review
Legislation not policy
23
This document reviews immigration legislation rather than
immigration policy or operations. Immigration policy and operations
are being reviewed as part of the wider immigration change
programme discussed above.
24
Current legislation provides the high-level legal basis on which a
person may be in New Zealand, the procedures to be followed and
the powers of the Minister of Immigration and officials in
administering and enforcing immigration rules. In particular, the
legislation allows the Minister of Immigration to set immigration
policy.
25
However, the Immigration Act review may question whether some
matters currently in policy should be set out in legislation. New
immigration policy may also be required in places to support the new
legislation. The legislative framework is summarised in Figure 1
below.
Figure 1: Immigration legislation, regulations and policy
Primary legislation – Immigration Act 1987
•
Provides the framework for immigration decision-making
•
Establishes key powers and obligations, including the
Focus of
this review
power of the Minister to make immigration policy
Secondary legislation – Immigration Regulations 1999
•
Provides the technical detail on the rules and processes for applications
•
Establishes the specific requirements for enforcing provisions of the Act
Policy (strategic and operational)
•
High-level policy decisions made by Cabinet (such as the numbers and types of
residence places available each year)
•
Criteria and rules for residence and temporary entry
Driven by
the content
of the Act
Outside
scope of
this
review
Part 4A of the Immigration Act – Special procedures in cases
involving security concerns
26
6
Part 4A of the Immigration Act sets out the process for dealing with
cases involving security concerns and, to date, has only been used in
relation to Mr Ahmed Zaoui. Part 4A is outside the scope of this
review and will be considered in a separate review once Mr Zaoui’s
case is completed. Nothing precludes Part 4A or a revised Part4A
being included in the final Bill.
6
1.5
What contribution will the Immigration Act review make to the
change programme?
27
28
The immigration change programme will introduce changes that will:
•
facilitate the entry of the people we need, and
•
effectively protect New Zealand’s border through integrity and
security in the immigration system.
The Immigration Act will contribute to both of these areas as
summarised in the tables below.
Table 1: Facilitation, fairness and a system that is easier to use
Clear purpose and principles
3.1
3.2
Proposals
Benefits
The new legislation will have a clear
purpose focused on New Zealand’s
interests.
This would help ensure the immigration
system:
The
new
underpinned
including:
legislation
by clear
will
be
principles,
-
fairness
-
effective decision-making
-
efficient processes, and
-
understandable
legislation.
and
accessible
-
generates sustainable economic growth
-
establishes strong communities
-
fulfils New Zealand’s role as a good
international citizen, and
-
supports international cooperation.
It would also
system is:
ensure
the
-
fair
-
effective
-
efficient, and
-
easy to use and understand.
immigration
A system that is flexible and easier to use
4.1
5.1
5.3
7
Proposals
Benefits
The new legislation will:
This would ensure the immigration system
facilitates the entry of high-value low-risk
customers by being:
-
-
-
have a simplified, integrated
“visa” system for travel to, entry
and stay in New Zealand
allow delegation of power to
make exceptions to residence
policy
(to
selected
senior
immigration officials only)
enable third party and electronic
decision-making
for
low-risk
approvals
-
easy to use and understand
-
competitive in the global market
-
effective and efficient
-
up-to-date with technology
-
flexible for future changes, and
7
10.2
-
enable permit extensions for
people who lodge a further
application while lawfully in New
Zealand
10.2
-
retain discretion for permits to
be granted to persons in New
Zealand unlawfully, and
13
-
provide a clearer basis for the
role of third parties in the
immigration system (including
sponsors, employers, education
providers and carriers).
-
supportive of the role of sponsors,
education providers, employers and
carriers.
Fairness and transparency
5.2
7.1
8.1
Proposals
Benefits
The new legislation will:
This would:
-
-
-
ensure
that
immigration
applicants are given potentially
prejudicial
information
and
reasons for decisions when
appropriate
ensure appropriate access to
review and appeal of immigration
decisions, and
-
ensure that the immigration system is
fair and transparent
-
ensure access to independent appeal
mechanisms
-
improve the effectiveness and efficiency
of appeals processes, and
-
support those with real interests in
being in New Zealand.
establish a single immigration
and refugee appeals tribunal
serviced by the Ministry of
Justice.
Being a good international citizen
14.1
Proposals
Benefits
The new legislation will:
This would ensure that the immigration
system:
-
14.2
14.2
8
-
-
clearly set out New Zealand’s
international obligations under
the Refugee Convention, the
Convention Against Torture and
the International Covenant on
Civil and Political Rights
establish a single procedure for
determining
refugee
and
protection status, and
-
upholds New
obligations
Zealand’s
international
-
is responsive to those in need
-
is efficient (does not require multiple
decision-makers and years of delays),
and
-
supports international co-operation.
establish a single right of appeal.
8
Table 2: Integrity and security in the immigration system
Better tools for decision-making
5.2
9.1
Proposals
Benefits
Classified information could be used
in decision-making by:
This would prevent inaccurate decisions
from being made because classified
information could not be used.
-
-
allowing classified information to
be used in all immigration
decision-making
without
releasing it to the applicant, and
establishing a process that allows
for
an
independent
appeal
against onshore decisions that
rely on classified information.
Officers will be able to:
11.1
-
-
require, use and store certain
types of biometric information
(such as photographs) to assist
in immigration and refugee
decision-making, and
request the voluntary provision
of other types of biometric
information (such as DNA) in a
more
limited
range
of
circumstances.
It would ensure that:
-
all the facts of an application could be
considered
-
character requirements are met, and
-
fairness standards are maximised.
This would:
-
allow immigration systems to keep upto-date with advances in passport
technology, and internationally agreed
standards of identity verification
-
support an efficient and effective
immigration system for those who are
low risk and honest
-
help reduce the risks of identity fraud,
and
-
contribute to New Zealand’s safety and
security.
Streamlined expulsion and appeal mechanisms
Proposals
Benefits
A new expulsion system will be
established that includes:
This would:
6.2
-
automatic liability for expulsion
7.2
-
streamlined review and appeal
rights
7.2
-
a single humanitarian appeal test
including
exceptional
circumstances and the public
interest
8.1
-
a single immigration and refugee
appeals tribunal, and
9
-
improve clarity on what migrants’
obligations are and when a person is
liable for expulsion
-
allow flexibility for a person to stay in
special circumstances
-
reduce the time it takes to expel a
person by reducing multiple appeal
routes, while maintaining fairness, and
-
ensure New Zealand’s public interest
and international obligations are taken
into account.
9
14.3
-
provision to expel protected
people who have committed
serious offences or are a risk to
New Zealand (where this is
consistent with the relevant
international obligations).
The new appeals tribunal would:
-
improve efficiency and effectiveness in
the appeals system, and
-
improve knowledge sharing and reduce
the risks of backlogs.
Compliance and enforcement
10.1
10.1
10.1
Proposals
Benefits
The new Immigration Act will confer:
This would:
-
-
-
on immigration officers powers
to require information to locate
people unlawfully in New Zealand
and people under investigation
for breaches of the Immigration
Act
on immigration and Customs
officers powers to detain a
person for immigration reasons
in the absence of a Police officer
for up to four hours, and
on immigration officers powers of
search and entry for immigration
reasons in the absence of Police
or Customs officers.
The new legislation will:
13.1
-
enable information-sharing to
assess entitlement to publiclyfunded services, and
13
-
ensure appropriate provisions for
third-party compliance.
13
Input on whether and how to share
a person’s immigration status with
other
third
parties,
such
as
employers, is being sought from the
public.
10
-
improve the efficiency and effectiveness
of immigration investigations
-
close loopholes in the current system
that reduce the ability of immigration
officers to enforce compliance
-
ensure privacy and individual rights
safeguards through appropriate training,
delegations, and limitations on powers
-
ensure rules on access to publiclyfunded
services
are
upheld
and
entitlements protected
-
minimise tax-payer subsidies for those
who unlawfully access services, and
-
ensure that those third parties that
benefit from the immigration system
fulfil their responsibilities.
10
Detention
12.1
Proposals
Benefits
The detention system will be
adjusted to ensure an appropriate:
This would:
-
maximum period
without a warrant
of
-
review period
warrants
12.3
-
maximum period of detention
12.5
-
ability to detain when a person is
at the border and in New
Zealand, and
11
-
ensure greater discretion for judges to
determine if detention is appropriate
-
retain individual rights protections
-
allow for release on conditions and open
detention to be used in cases where a
person must currently remain in the
community
-
better ensure that a person can be
detained to allow for expulsion
-
reduce high administrative costs on the
Department of Labour and the courts,
and
-
improve our already high standards
regarding immigration detention.
detention
12.2
12.6
for
-
detention
administrative power to support
the Department of Labour’s
current ability to designate
places of detention outside Police
or Corrections facilities.
11
1.6
The process for gathering feedback
29
This discussion paper is available online. Hard copies can be
requested from the Department of Labour. Web and contact details
are set out below.
30
In May 2006, the Department of Labour will be meeting with
stakeholders who have a particular interest in immigration legislation
to discuss this document and collect feedback.
31
You are invited to comment on this discussion paper or on any other
issues relating to immigration legislation. Where applicable,
comments should make specific reference to the relevant section in
this document and to the key questions raised.
32
To make it easy for you to comment on the Immigration Act review,
an online feedback form is available at www.dol.govt.nz.
Alternatively, comments can be emailed or posted to the Department
of Labour.
33
The due date for comments is 14 June 2006. Your input will inform
advice to Cabinet in late 2006, with a view to introducing a Bill to
Parliament in 2007.
Our contact details are:
1.7
12
Website:
www.dol.govt.nz
E-mail address:
[email protected]
Postal address:
Immigration Act Review
Department of Labour
PO Box 3705
Wellington
Relevant links
34
The Immigration Act 1987 and the Immigration Regulations 1999
can be viewed online at www.legislation.govt.nz.
35
For the Immigration Act, click on Statutes, then click on I under A-Z
Contents. For the regulations, click on Statutory Regulations, then
click on I under A-Z Contents.
12
SECTION 2: EXECUTIVE SUMMARY
36
Table 3 sets out a high-level summary of proposals for change to the
Immigration Act, based on the options that appear to most closely
meet the agreed objectives of the Immigration Act review. This
summary is designed to provide you with a high-level indication of
what the review could achieve.
37
A full discussion of all options at a more detailed level, including their
rationale, costs and benefits, is set out in the corresponding sections
of this discussion paper. The table provides references to the
relevant sections in this discussion paper. Some improvements, such
as those relating to clarity and consistency, will primarily be
addressed through the drafting of the new legislation.
Table 3: Summary of status quo and proposals for change
Purpose and principles (Section 3)
Status quo
Proposals
The Immigration Act has no purpose
statement.
The purpose of immigration
considered to be to:
Objectives are included in some parts
of the Immigration Act. They have been
introduced as amendments at different
times since 1987.
•
regulate the entry, stay and removal of
non-New Zealand citizens, in a manner
that is in New Zealand’s interests, and
•
provide for integrity in the immigration
system.
legislation
is
New Zealand’s interests are considered to
include:
•
maintaining the safety and security of New
Zealand
•
generating sustainable economic growth
•
establishing strong communities
•
fulfilling New Zealand’s role as a good
international citizen, and
•
promoting international cooperation.
The new Immigration Act would set out a
carefully drafted purpose statement.
The principles that underpin
Immigration Act would be:
13
the
new
•
a fair immigration system
•
effective decision-making
•
efficient processes, and
•
understandable and accessible legislation.
13
The visa and permit system (Section 4)
Status quo
Proposals
The Immigration Act creates a two
document system (visas and permits)
for managing travel to, and entry and
stay in New Zealand:
The new Immigration Act would create a single
document system, adopting the generic term
“visa”, for managing travel to, and entry and
stay in New Zealand.
•
Visas are documents that allow a
person to travel to New Zealand.
•
Permits are documents issued
onshore that allow non-citizens to
enter and remain in New Zealand.
The system would be easier to use and
understand, while retaining the functions of the
current visa and permit system.
Requiring non-citizens to apply for
visas and permits ensures that they are
assessed against agreed immigration
policies. The system also allows for visa
and permit exemptions.
The new Immigration Act could end some of
the current exemptions. It would provide a
more flexible framework for applying different
levels of scrutiny, according to risk and the
person’s intentions in New Zealand.
Decision-making (Section 5)
Status quo
Proposals
The Immigration Act confers most
decision-making powers directly on the
Minister of Immigration.
The new Immigration Act would continue to
confer most decision-making powers directly
on the Minister of Immigration. General
discretion for the Minister to intervene at any
point would remain.
The Minister delegates most decisionmaking powers to officials, with some
exceptions
–
including
making
exceptions to residence policy.
The Minister of Immigration also has
general discretion to intervene at any
point and has a heavy workload of
requests for individual intervention.
The Immigration Act only requires
reasons for decisions to be given when
a person is onshore. Operational
practice, however, requires potentially
prejudicial information and reasons for
decisions to be given to offshore and
onshore applicants. There is no ability
to decline an application on the basis of
classified information which cannot be
disclosed to an applicant.
14
The Minister of Immigration’s involvement in
individual cases could be managed by:
•
delegating to selected senior officials the
power to make exceptions to residence
policy, and
•
administrative changes (such as requiring
a person to exhaust all other avenues of
appeal before ministerial intervention).
The new Immigration Act would specify that
potentially prejudicial information and reasons
for decisions do not need to be given where
this
would
involve
releasing
classified
information. Only onshore applicants would
have the right to have this reviewed.
The new legislation would also enable
electronic and third-party decision-making,
which could be activated by government in the
future.
14
Exclusion and expulsion (Section 6)
Status quo
Proposals
Grounds for exclusion from entry
include criminal conviction, previous
expulsion from a country and threats to
public safety including terrorism. Entry
can also be refused on the basis of
failing to meet policy, including health
and character policy.
The new Immigration Act would broaden and
strengthen the current legislative provisions for
excluding a non-citizen from entering New
Zealand. It would include health and character
provisions.
Grounds for expulsion are set
throughout the Immigration Act.
out
Expulsion processes are inefficient and
complex, and can create extended
delays. They include separate steps for
permit revocation and distinctions
between removal and deportation. The
Minister of Immigration must make all
deportation and residence permit
revocation decisions.
The new Immigration Act would establish a
single provision clearly setting out the grounds
for expelling a non-citizen from New Zealand
and a single term – “expulsion”.
The new Immigration Act would establish a
new streamlined expulsion process:
•
If a non-citizen meets the criteria for
expulsion, they would be automatically
liable for expulsion.
•
There would be no requirement for the
Minister of Immigration to be involved in
expulsion, other than in cases of threats to
national security (or, perhaps, permanent
exclusion).
In all cases, there would be departmental and
ministerial discretion not to proceed, even
where liability for expulsion was established.
There would be graduated penalties for
expulsion, ranging from a two-year ban to a
permanent ban.
Appeal provisions are discussed below.
15
15
Review and appeal (Sections 7 and 8)
Status quo
Proposals
Access to review and appeal under the
current system does not necessarily
reflect the interests at stake and can
create extended delays.
The new Immigration Act would establish
access to internal review and independent
appeal based on the interests involved.
The Immigration Act establishes four
independent appeal authorities:
•
the Residence Review Board
•
the Removal Review Authority
•
the Deportation Review Tribunal,
and
•
the Refugee Status Appeals
Authority.
Possible changes include:
•
granting access to internal review (rather
than independent appeal) to offshore
residence applicants who do not have a
New Zealand sponsor
•
allowing only one appeal against expulsion
on the facts
•
appeals against expulsion on humanitarian
grounds by people unlawfully in New
Zealand would be limited to those who
had:
A person may have access to multiple
avenues of appeal prior to expulsion.
They may also have access to judicial
review, the courts on questions of law,
the courts in relation to a conviction,
the Minister of Immigration and the
Ombudsmen.
•
-
previously spent two years lawfully in
the country, or
-
who had a New Zealand sponsor, and
the Minister of Immigration would still
have the power to intervene in any case,
but, under normal circumstances, would
not do so unless all other avenues were
exhausted and only if the case had merit.
The new Immigration Act would strengthen and
streamline independent appeals by establishing
a single immigration and refugee appeals
tribunal within the Ministry of Justice, with the
chair and deputy chairs appointed as District
Court Judges.
This would effectively amalgamate the current
Refugee Status Appeals Authority, Removal
Review Authority, Deportation Review Tribunal
and Residence Review Board.
16
16
The use of classified information (Section 9)
Status quo
Proposals
Classified information generally cannot
be used in immigration decisionmaking. This may prevent New Zealand
from making appropriate decisions
when open-source information is not
available.
The new Immigration Act would allow for
classified information to be used in all
immigration decision-making without disclosing
it to the applicant.
The
only
exception
is
classified
information that relates to a security
risk, which is covered by Part 4A –
Special procedures in cases involving
security concerns. Part 4A is outside
the scope of this review.
17
In the case of offshore decisions, there would
be no right of review on this matter.
In the case of onshore decisions, the following
new processes would be established to provide
independent review of the use of classified
information:
•
decisions to decline an immigration
application on the basis of classified
security information could be reviewed by
the Inspector-General of Intelligence and
Security
•
decisions to decline an immigration
application on the basis of classified
information other than security
information could be appealed to a judge
on the new immigration and refugee
tribunal, and
•
decisions to decline refugee or protection
status on the basis of any classified
information could be appealed to a judge
on the new immigration and refugee
tribunal.
17
Compliance and enforcement (Section 10)
Status quo
Proposals
The
Immigration
Act
provides
immigration
officers
with
limited
powers to require information and
enforce immigration rules. There are
gaps
that
prevent
effective
enforcement in some cases.
The new Immigration Act would confer a
limited range of new powers to immigration
officers where there are gaps that prevent
effective enforcement in some cases.
The Immigration Act provides the
Minister of Immigration and delegated
immigration officers with the discretion
to grant a permit to a person in New
Zealand unlawfully.
This discretionary power does not
effectively address the problem of
people becoming unlawful while waiting
for a decision on an application for a
further temporary permit.
In particular, the new Immigration Act would
confer:
•
on immigration officers powers to require
information to locate people unlawfully in
New Zealand and to locate people under
investigation for breaches of the
Immigration Act
•
on immigration and Customs officers
powers to detain a person for immigration
reasons in the absence of a Police officer
for up to four hours, and
•
on immigration officers powers of search
and entry for immigration reasons in the
absence of Police or Customs officers.
These powers would be accompanied by strict
guidelines
and
safeguards,
including
appropriate delegations, training and support.
Police and Customs officers would retain their
existing powers.
The new Immigration Act would retain
discretion for the Minister of Immigration and
delegated officials to grant a permit to a person
in New Zealand unlawfully.
It would also introduce discretionary permit
extensions for those who lodge an application
while in New Zealand lawfully. The extension
could only last until the date a decision on the
application was made.
18
18
The use of biometrics (Section 11)
Status quo
Proposals
The Immigration Act does not provide for
the
use
of
new
technological
developments that allow photographs and
other biometric identifiers to be scanned,
stored, and used for identity comparisons.
Under the new Immigration Act, delegated
immigration officers would have the power
to require, use and store certain biometric
information (such as photographs) about
any individual who requires permission to
enter or remain in New Zealand. (This would
include residence and temporary entry
applicants and refugee claimants.)
The
Immigration
Act
does
allow
immigration officers to require evidence of
identity where an offence is suspected and
where a person is suspected of being in
New Zealand unlawfully. Immigration
officers may also demand a person’s
passport or certificate of identity at the
border, on arrival.
In addition, visa/permit applicants and
refugee claimants need to provide
sufficient information to allow an officer to
determine their identity and whether they
meet the required criteria.
The new Immigration Act would also
expressly
allow
immigration
officers,
refugee/protection officers and independent
tribunal members to request the voluntary
provision of DNA and age verification tests
for the purpose of credibility assessments.
Detention (Section 12)
Status quo
Proposals
The Immigration Act provides a detention
regime that is fundamentally sound, but
administratively
inefficient
and
inconsistent. For example:
The new Immigration Act would provide for:
•
The current maximum period of
detention without a warrant no longer
serves the purpose of allowing a turnaround at the border without
requiring a warrant of commitment.
•
In many cases the Immigration Act
does not allow a judge the discretion
to order judicial review of
immigration detention less frequently
than every seven days. This can be
excessively time- and resourceintensive for all agencies involved.
•
There are also inconsistencies
between New Zealand’s ability to
detain a person onshore and at the
border.
19
•
appropriate detention and review
periods
•
consistent detention of refugee status
claimants where appropriate, and
•
immigration officers to undertake
immigration detention in places
approved by the Chief Executive for
that purpose. This power would give
effect to the existing legislation that
enables the Chief Executive of the
Department of Labour to approve a
place as a place of immigration
detention.
19
The role of third parties (Section 13)
Status quo
Proposals
Providers of publicly-funded services
Current legislation limits the ability, in
some cases, to share information
regarding a person’s immigration status
to determine access to publicly-funded
services.
The new Immigration Act would allow the
Department of Labour to share information
with other departments and the wider state
sector, to allow them to establish eligibility for,
or audit, publicly-funded services. There would
be privacy safeguards.
Sponsors
The
Immigration
Act
sets
out
obligations on sponsors of temporary
entrants, but not on sponsors of
residents. There is a lack of clarity and
transparency around sponsorship and
few incentives to meet obligations.
The new Immigration Act would strengthen the
legislative basis for sponsorship obligations by
including provisions on sponsorship for
residence and temporary entry. It would set
out minimum eligibility criteria for sponsors
and the types of undertakings sponsors could
be required to make. Business and organisations would be allowed to act as sponsors,
including when they make job offers to
residence applicants.
Incentives to comply with sponsor obligations
would be strengthened through immigration
sanctions (such as restrictions on further
sponsorship) and sponsor bonds.
Employers
Obligations on employers are provided
for in legislation and in policy.
Employers commit an offence under
the Immigration Act if they employ a
person who is not entitled to work in
New Zealand.
The new Immigration Act would enable
obligations to be imposed on employers. This
would include:
•
a reminder to employers that they must
comply with New Zealand employment
legislation, and
Enforcing this obligation has been
prevented because a reasonable excuse
for employing someone not entitled to
work includes seeing an employee’s tax
code declaration form. This is an
unreliable form of evidence, as tax
codes are routinely issued to persons
without entitlement to work in New
Zealand.
•
provision for further obligations on
employers to be established in policy (such
as good employer requirements).
20
In addition, the new Immigration Act would
establish an obligation to check (and cite
reliable evidence) that a prospective employee
is entitled to work in New Zealand. The excuse
of having sighted a tax code declaration would
be removed. This could increase compliance,
but the need to check immigration status could
raise concerns about breaches of privacy and
inappropriate use of status checks.
20
Education providers
Education providers have obligations
set out in the Immigration Act and in
the Ministry of Education’s Code of
Practice
for
Pastoral
Care
of
International Students (the Code).
The new Immigration Act would include a
requirement that education providers be a
signatory to, and comply with, the Code. Ability
to enforce education provider obligations would
be strengthened by:
The penalties for non-compliance with
immigration obligations are minimal
and difficult to enforce.
•
power for immigration officers to require
information from education providers, and
•
a more flexible penalties regime that
includes instant fines, immigration
consequences and prosecutions.
Carriers
Carriers (airlines and sea-going craft)
have obligations set out in the
Immigration
Act.
These
include
obtaining
and
providing
the
Department of Labour with information
about
passengers
and
ensuring
passengers
have
appropriate
documentation.
Offences exist for failing to meet
obligations, with fines of up to $20,000.
However,
there
are
difficulties
enforcing obligations, mainly because
of the resources required in taking
prosecutions.
21
The new Immigration Act would carry over
existing
carrier
obligations,
with
minor
amendments
to
improve
clarity
and
effectiveness.
Incentives to comply with obligations would be
strengthened through the introduction of an
instant fines regime when closely specified
carrier obligations are not met. Fine levels
would vary according to the seriousness of the
offence, and there would be discretion to waive
fines where appropriate.
21
New Zealand’s role as an international citizen (Section 14)
Status quo
Proposals
The
only
international
obligation
referred to in the Immigration Act is
the
Refugee
Convention.
Other
obligations may be considered by the
Minister
of
Immigration,
the
Department of Labour, the Removal
Review Authority, the Deportation
Review Tribunal or the courts.
The new Immigration Act would set out and
clarify New Zealand’s absolute obligations to
protect persons under the Convention Against
Torture and the International Covenant on Civil
and Political Rights.
The current system risks repetitious or
inconsistent
decision-making,
and
decision-makers may not be experts in
international law. It also puts New
Zealand in danger of not meeting its
international obligations.
22
The new Immigration Act would:
•
establish a single procedure for
determining refugee and protection status,
and a single right of appeal on the facts
•
include legal recognition of refugees
selected by New Zealand offshore under
the Refugee Quota Programme
•
strengthen the obligations on claimants to
assist the decision-maker, the powers of
decision-makers to request or obtain
information, and the offences and
penalties for abusing the determination
system, and
•
clarify when refugees may be expelled and
how international obligations that prohibit
expulsion are to be implemented.
22
SECTION 3: PURPOSE AND PRINCIPLES
Scope of section
3.1
What is the purpose of New Zealand’s immigration legislation?
3.1.1
What are New Zealand’s immigration-related interests?
3.1.2
Should a purpose statement be included in the legislation?
3.2
What principles should underpin immigration legislation?
3.3
What level of detail should be in the primary legislation?
3.1
What is the purpose of New Zealand’s immigration legislation?
38
Every sovereign nation has the right to decide who may enter and
remain in its territory and under what circumstances. This may be
subject to some constraints, such as undertakings made within the
context of free trade agreements or commitments to international
instruments like the 1951 Convention Relating to the Status of
Refugees (the Refugee Convention).
New Zealand’s interests
39
The primary purpose of immigration legislation is to control the
movement of people in New Zealand’s interests. Without some way
of managing people flows, there would be a free flow of non-citizens
across the border, who would not necessarily benefit New Zealand.
40
There is a strong relationship between immigration control and the
sovereignty of a nation. Immigration legislation creates a clear
boundary between a country’s citizens and residents, and others.
Integrity of the immigration system
23
41
Immigration legislation does more than simply regulate the
movement of people. It also provides the framework for regulating
the broader immigration system. Immigration has a high level of
human interest and affects people’s lives. It impacts on the existing
population and prospective migrants and visitors. It is therefore
subject to a significant level of public scrutiny.
42
It is essential that immigration legislation provides for a robust and
accountable system that creates public confidence. The legislation
should, for example:
•
provide appropriate
immigration law
incentives
for
people
to
comply
•
not disadvantage those who do comply
•
ensure that powers are exercised appropriately, and
•
ensure that processes are efficient and decisions are timely.
with
23
43
3.1.1
The purpose of immigration legislation could therefore be simply
expressed as:
•
to regulate the entry, stay and removal of non-New Zealand
citizens, in a manner that is in New Zealand’s interests, and
•
to provide for integrity in the immigration system.
What are New Zealand’s immigration-related interests?
44
If the purpose of immigration legislation is to regulate the entry and
stay of non-citizens in New Zealand’s interests, it is useful to
consider what New Zealand’s immigration-related interests are.
These are currently considered to be:
•
maintaining the safety and security of New Zealand
•
generating sustainable economic growth
•
establishing strong communities
•
fulfilling New Zealand’s role as a good international citizen, and
•
promoting international cooperation.
Maintaining the safety and security of New Zealand
45
A primary objective of the government is to maintain the safety and
security of the nation. New Zealand needs to know who is entering
the country, where they are from and why they are here. This helps
us to know if their presence will contribute to New Zealand’s
interests. The importance of border security has increased, due to
the nature of current security threats. A secure New Zealand border
also enhances the international security environment.
46
Safety and security includes ensuring that non-citizens are of good
health and character. Onshore compliance and enforcement activity
(like ensuring migrants have lawful work permits) also helps to
manage safe workplaces and protect pay and conditions for New
Zealanders. Compliance and enforcement activity supports the
integrity of the immigration system by ensuring that migrant
workers are legally entitled to work.
Generating sustainable economic growth
47
24
Migrants and visitors stimulate New Zealand’s sustainable economic
growth. Migrants have global skills, knowledge and connections that
are transferred to our workforce. Their ideas and capital can foster
industrial and technological innovation, increase labour utilisation
and improve productivity. Visitors generate employment and foreign
exchange in our tourism and education industries.
24
48
Immigration complements the range of labour market responses
available for skill and labour shortages. It can ease business
constraints and assist with workforce development.
Establishing strong communities
49
Migrants contribute to building strong and cohesive communities and
assist with social development. This is particularly achieved through
family reunification, including the partners of New Zealand citizens
and permanent residents. Migrants enrich the social and cultural
fabric of New Zealand by increasing our diversity.
50
At the same time, migrants can present challenges for our country’s
identity and unity that need to be carefully managed. For
immigration to help establish strong communities in New Zealand, it
is important that the impact on existing communities, including Maori
communities, is considered. A supportive inclusive environment
ultimately assists migrants to settle well and maximises their
economic and social contribution.
Fulfilling New Zealand’s role as a good international citizen
51
New Zealand has an important role to play as a good international
citizen. This means fulfilling our international obligations, including
those under the Refugee Convention, the Convention Against
Torture, and the International Covenant on Civil and Political Rights.
New Zealand also has special commitments in the Pacific region. The
high value placed on human rights by New Zealand society may
mean that New Zealand wishes to go beyond simply meeting its
minimum international obligations.
52
Being a good international citizen is important to New Zealand’s
reputation as a country that is committed to advancing global issues.
New Zealand enjoys positive world-wide recognition of its treatment
of refugees. New Zealand’s reputation can impact on the willingness
of other countries to develop economic and social connections with
us.
Promoting international cooperation
25
53
International cooperation is critical for an effective immigration
system. New Zealand is a small, geographically isolated country. We
need to work closely with other countries and form strategic bilateral
and multilateral alliances to advance our interests. An important part
of cooperation is information sharing. This can advance New
Zealand’s security interests and help deter illegal immigration
activity, such as people smuggling and trafficking.
54
New Zealand benefits from cooperation through the opening up of
access to international trade and labour markets and by facilitating
the ability of New Zealanders to travel overseas. A key country, in
this respect, is Australia, with whom New Zealand has shared a long
history of reciprocal access.
25
3.1.2
Should a purpose statement be included in the legislation?
55
The purpose of New Zealand’s immigration legislation is not set out
in the current Immigration Act. Purpose statements can clearly
establish the intent of the legislation and guide interpretation in a
manner consistent with what Parliament intended.
56
Purpose statements need to be drafted carefully. Identification and
interpretation of New Zealand’s interests, and the weight given, may
be subject to legal challenge. People challenging immigration
decisions may also seek to use a purpose statement to delay
departure. These risks could be mitigated by having a high-level,
guiding purpose statement rather than specific objectives.
What do other countries do?
57
Australia has a clear purpose statement in its Migration Act 1958,
which is to:
•
58
“regulate, in the national interest, the coming into, and presence
in, Australia of non-citizens.”
Canada’s Act goes further than this and states 19 specific objectives,
including:
•
“to permit Canada to pursue the maximum social, cultural and
economic benefits of immigration,” and
•
“to enrich and strengthen the social and cultural fabric of
Canadian society, while respecting the federal, bilingual and
multicultural character of Canada”.
59
Canada’s legislation also states that it is to be construed and applied
in a manner that, among other things, complies with international
human rights instruments to which Canada is signatory.
60
There have been numerous cases of people contesting Canadian
immigration decisions on the basis they were inconsistent with the
objectives in Canada’s Act. For example, the Act’s reference to
complying with international human rights instruments has been
argued to apply to a broader range of obligations than was intended.
The exclusion of certain persons has also been argued to be
inconsistent with the objective of reuniting families in Canada.
Other domestic legislation
61
26
New Zealand’s Corrections Act 2004 provides a useful model, as it
must also recognise competing interests – the safety of the
community and the rehabilitation of offenders. The Corrections Act
refers to the purpose of the Corrections system, which implies
something broader than the legislation. Similarly, the Fisheries Act
1996 recognises different interests by stating that its purpose is to
“provide for the utilisation of fisheries resources while ensuring
sustainability”.
26
Proposal
62
For the reasons discussed above, it is proposed that a carefully
drafted purpose statement should be included in the legislation. This
would help guide interpretation of the Immigration Act.
3.1 Key questions
1
Do you agree with the suggested purpose of New Zealand’s immigration
legislation?
2
Do you agree that New Zealand’s immigration-related interests are those
suggested?
3
Should a purpose statement be included in the legislation?
27
27
3.2
What principles should underpin immigration legislation?
63
Any legislative review needs to clearly establish what principles are
to underpin the development of the new legislation. Principles can
guide the policy development process, which, in turn, shapes the
legislation. The principles that are to underpin the development of
the new immigration legislation are currently considered to be:
•
a fair immigration system
•
effective decision-making
•
efficient processes, and
•
understandable and accessible legislation.
A fair immigration system
64
Immigration decision-making processes need to be reasonable,
consistent and proportionate to the interests involved. This includes
initial immigration decisions about whether a person may enter or
stay in New Zealand and any review, appeal or expulsion decisions.
As interests differ depending on the type of decision being made,
“fairness” requirements are likely to be different for a decision to
refuse a visitor visa offshore and a decision to expel a New Zealand
resident.
Effective decision-making
65
The immigration system must be capable of providing quality final
decisions. This means having robust decision-making processes that
do not provide for ongoing review and appeal. This principle is
particularly relevant to the discussion in Section 7: Access to review
and appeal.
Efficient processes
66
New Zealanders, migrants and visitors want immigration decisions to
be made in a timely manner. This means having logical streamlined
processes in place that enable decisions to be made as quickly as
possible. Efficient processes are required across the immigration
system.
Understandable and accessible legislation
67
It is essential that legislation is accessible by being simple, clear and
logical. Legislation creates rights, confers powers and imposes duties
and obligations. It must therefore be expressed in a way that is
understood by the individuals who are affected by it.
3.2 Key question
1
28
Do you agree that the principles as outlined should underpin the development
of our immigration legislation?
28
3.3
What level of detail should be in the primary legislation?
68
The Immigration Act is intended to be framework legislation. It
provides the high-level authority to regulate the entry and stay of
non-citizens. It contains the powers of the Minister of Immigration to
develop immigration policy and sets the framework for immigration
decision-making.
69
In particular, the Immigration Act gives the Minister of Immigration
the power to set residence and temporary entry policy. This means
all the criteria for allowing temporary and permanent entry and stay
are determined by the executive government and contained in
operational policy. This provides the flexibility to adjust policies as
required. The way the Immigration Act works is set out in Figure 1,
Section 1: Overview (page 6).
70
While the Immigration Act does provide a broad framework, it is also
prescriptive in certain places. In areas relating to detention, removal
and deportation, where individuals’ rights are at risk, prescriptive
legislation is useful. In other areas, prescriptive legislation can make
it difficult to be responsive. Detailed requirements are prescribed in a
number of places throughout the current Immigration Act, which
means the government cannot be so readily responsive to changing
needs.
What do other countries do?
29
71
Canada has framework legislation, in that the high-level objectives,
powers and obligations are set out in the primary Act. The detailed
immigration policy criteria and processes are provided in their
regulations and policy manual. Some aspects of their Act are
prescriptive. For example, the Act contains some family policy rules.
New Zealand’s current legislation sits closest to the Canadian model.
72
Similarly, the United Kingdom has a high level of detail set out in its
regulations and “policy rules”. The legislation is relatively complex,
as it is contained in seven different Acts.
73
Ireland is undertaking a fundamental review of its immigration
legislation and policy. It has expressed interest in adopting a
“framework” approach, with the detail set out in regulations and
policy, similar to New Zealand’s.
74
Australia has highly prescriptive legislation. Australia considers that
this allows more precise delivery of the immigration programme and
less scope for appeal (although large volumes of appeal are
experienced through the court system). This means the legislation is
very complex and the legislation and regulations must be constantly
updated.
29
Legislation Advisory Committee (LAC) Guidelines on the level of
detail
75
LAC Guidelines provide that the separation between legislation and
regulations or policy should generally be between principle and
detail. Detail or technical issues may therefore be delegated to
regulations or operational policy.
76
Any fundamental enabling provisions should be located within the
primary legislation. The executive government can then determine
the detailed policy settings. This is consistent with broad framework
legislation.
77
It may also be beneficial to include significant policy (or “bottom
lines”) where they are unlikely to change over time. For example,
current policy criteria that prohibit people from being in New Zealand
could be included in the Immigration Act. Character policy
concerning “risk to New Zealand’s reputation” currently sits outside
the Immigration Act but could be more appropriately located in the
primary legislation. This is further explored in Section 6: Exclusion
and expulsion.
Benefits and costs of framework and prescriptive legislation
78
There are benefits from both framework and prescriptive legislation.
Framework legislation is more likely to achieve the desired principle
of being understandable and accessible, while providing the
necessary flexibility to respond to change. Prescriptive legislation
provides for certainty and transparency, which are particularly
desirable where there are direct impacts on an individual’s rights.
79
Immigration legislation needs to be responsive and flexible enough
to deal with the uncertain and changing nature of the immigration
environment (including economic conditions and the security
environment). It would not be practical for Parliament to deal with
the large volume of detailed and technical immigration matters
currently set out in operational policy.
Proposal
30
80
It is proposed that the new Immigration Act should be largely
framework legislation that is understandable and accessible and
responsive to change. In places it will need to be prescriptive,
however, particularly where this impacts on individual rights.
81
On this basis it is proposed that certain key powers in the current
Immigration Act must be retained. In particular, the power of the
Minister of Immigration to make immigration policy is considered to
be crucial for effective and efficient immigration management that is
responsive to New Zealand’s needs.
82
Secondly, this review considers removing some detail from the
Immigration Act, to allow the immigration system to be more
responsive. These considerations are discussed further in the
relevant sections of this discussion paper.
30
83
Finally, in other places in the legislation there is insufficient detail,
inhibiting transparency. This review considers the usefulness of
adding some significant aspects of current policy to the Immigration
Act, such as health and character requirements for travel to and
entry into New Zealand. This would support a fair immigration
system and effective and efficient processes. New or revised
immigration policy may be required in places, to support the new
legislation.
3.3 Key question
1
31
Do you agree that the Immigration Act should be largely framework legislation
with some prescription, particularly where this impacts on individual rights?
31
SECTION 4: THE VISA AND PERMIT SYSTEM
Scope of section
4.1
Does the visa, permit and exemption framework meet current and future
needs?
4.2
Which of the current visa and permit exemptions should be re-examined?
32
84
This section discusses New Zealand’s visa and permit system. It
considers the option of a simpler and more operationally flexible
system that better facilitates the entry and stay of non-citizens,
while also managing risk.
85
The proposals in this section will be complemented by the
Department of Labour’s new business model, which is also currently
being developed. The new business model includes enhanced online
services, decisions being made by New Zealanders, integrated IT
support across the business and tailoring client services.
32
4.1
Does the visa, permit and exemption system meet current and
future needs?
Status quo
86
Under the Immigration Act, every New Zealand citizen has the right
to be in New Zealand at any time. The New Zealand Bill of Rights Act
1990 reinforces this: “every New Zealand citizen has the right to
enter New Zealand”. It is implicit in the Immigration Act that any
New Zealand citizen who leaves New Zealand has an automatic right
to re-enter.
87
Non-citizens require authority to travel to, enter into, and remain in
New Zealand under the Immigration Act. This authority is managed
by a two-document system consisting of visas, which enable a
person to travel to New Zealand, and permits, which enable them to
enter and remain.
What is a visa?
88
A visa provides the authority for a non-citizen to travel to New
Zealand. A visa indicates that the issuing officer knows of no reason
why the holder should not, on arrival in New Zealand, be granted a
permit of the corresponding type (for example, a student permit
following a student visa). Any specific conditions to apply to the
permit are included on the visa (such as conditions requiring a
student to study a particular course during a specified period).
What is a permit?
33
89
A permit provides the authority for a non-citizen to enter and remain
in New Zealand. It sets the duration and conditions of stay. Permits
are granted onshore, either at the border or within New Zealand. The
permit specifies what the holder can and cannot do under the
Immigration Act. It defines the immigration status of the holder. This
determines eligibility for access to services and benefits in New
Zealand.
90
A permit expires when the holder leaves New Zealand, regardless of
any other expiry date. To ensure that a further permit is granted on
return to the border, a visa or visa-free status is required. For
example, if a student with a permit to study in New Zealand for the
academic year went to Australia during their holidays, their permit
would expire. When they flew back to New Zealand they would need
to have a valid student visa and be re-issued with a new student
permit upon arrival at the border. Non-citizens here without a valid
permit are in New Zealand unlawfully (unless exempt, as discussed
below).
33
91
The visa and permit regime requires people intending to come to or
stay in New Zealand to make their intentions clear during the
application process. This ensures that New Zealand can select those
people who meet its desired immigration outcomes.
Visa and permit exemptions
92
There are various provisions under the Immigration Act to exempt
people from the requirements to obtain a visa or hold a permit.
These general exemptions are specified in regulations.
Visa and permit types
93
The Immigration Act describes the types of visas and permits. It
requires applicants to apply for them in the appropriate manner
(with details in the regulations). The Immigration Act and regulations
also establish the general conditions placed on visa and permit
holders. In addition to general conditions, specific conditions can be
added to permits. For example, for a student, a general condition
could include the requirement to study, while a specific condition
would require that a specified course be taken at a specified
institution.
94
The current immigration system has the following types of visa:
95
•
residence (for the first journey to New Zealand by people
approved offshore for residence)
•
returning resident (this allows residents to leave New Zealand
temporarily and be granted a new residence permit on their
return)
•
temporary (visitor, work and student)
•
limited purpose (this allows entry for an express purpose only),
and
•
transit (there is no corresponding permit, as holders may only
transit through a New Zealand airport).
These visas are coupled with the following types of permit:
•
residence (this allows an indefinite stay and any type of work or
study)
•
temporary (visitor, work and student), and
•
limited purpose.
Link to policy categories
96
34
The criteria for being granted each type of visa or permit are largely
a matter for policy and are not included in the Immigration Act. The
Immigration Act review does not include an examination of the
criteria for any specific policy categories. Reviews of policy
categories are undertaken continually, as needs are identified, and
do not need to wait for incorporation in a legislative review.
34
What works well?
97
New Zealand citizens’ rights – The explicit protection of New Zealand
citizens’ right to re-enter New Zealand is a strength of the current
framework. The requirement for non-citizens to have an appropriate
authority to travel to, enter and remain in New Zealand is
fundamental. It allows New Zealand to exercise its sovereign right to
manage immigration.
98
Visas and permits – Having two documents (visas and permits)
reflects the distinction between two functions: permission to travel to
New Zealand and permission to enter and remain. Requiring some
people to apply for a visa offshore ensures that some non-citizens
seeking to come to New Zealand are assessed before they travel
here. It also emphasises that permits carry greater rights and
obligations than visas.
99
Visa and permit types – The Immigration Act allows the rules for
approval under the various immigration policy categories (for
example, the Skilled Migrant Category) to be set in policy. Each type
of visa and permit has several immigration policy categories sitting
underneath it (for example, the temporary visa and permit category
includes visitor, work and student immigration policy categories).
This contrasts with the Australian approach, where each policy
category has its own visa class and subclasses specified in
regulations, along with the documentation requirements, policy rules
and post-approval conditions.
100
Exemptions – The capacity to exempt individuals or classes of people
from visa and/or permit requirements provides flexibility in the
immigration system. It allows New Zealand to apply different levels
of risk management and assessment to different individuals or
classes of people. While immigration decisions are made on an
individual basis, varying the levels of scrutiny for different groups
reduces unnecessary scrutiny for low-risk groups. It allows resources
to be applied to the groups more likely to be a risk (such as those at
risk of overstaying the length of their permit and remaining in New
Zealand unlawfully).
What are the problems/opportunities?
35
101
Terminology confusing for some people – The general public tend to
talk only of visas. Many people are unaware of the distinction
between visas and permits. This may undermine the principle of
understandable and accessible legislation. An opportunity exists to
examine whether there is a need to maintain distinct terms.
102
Multiple permit and visa types may no longer be required – In
practice, the distinctions between current temporary visa and permit
types (work, student, visitor) are not always absolute. For example,
some categories of student policy allow part-time work, three-month
study courses may be completed on any type of permit, and work
permit holders can undertake employment-related training without
35
specific permission to study. This suggests that the distinctions
between visa types established in the Immigration Act are
unnecessary. It may be that only the distinction between temporary
and permanent visa types is important enough to be established in
the Immigration Act. Particular conditions that relate to a person’s
entry and stay in New Zealand could be included on their permit.
1
103
Exemptions regime is fragmented – Exemptions from visas and
permits are varied. Some exemptions are included in the
Immigration Act, others in the regulations. For example, visa
exemptions for travel to New Zealand are enabled by the
Immigration Act, but details of exemptions (such as the list of visafree countries) are specified in regulations. On the other hand,
temporary permit exemptions for entry and stay in New Zealand are
included in the Immigration Act. The visa and permit exemption for
Australian citizens sits in regulations.
104
The complexity of the current exemption system potentially
undermines the principle of understandable and accessible legislation
and New Zealand’s interests in facilitating the entry of migrants and
visitors. The review provides the opportunity to reconsider
appropriate legislative placement of exemption powers.
105
Inability to take compliance action against some visa- and/or permitexempt people – Exempt people (except diplomats) are still subject
to the minimum character standard provided in section 7 of the
Immigration Act 1 . For example, Australian citizens living
permanently in New Zealand are subject to deportation for criminal
offending under provisions that are similar to those that apply to
residence permit holders.
106
Action, however, cannot be taken against visa- and/or permitexempt people who commit immigration offences outside the scope
of section 7. For example, if a member of a ship’s crew committed an
immigration offence, it is currently difficult to end their exempt
person status and require them to leave New Zealand. In this
circumstance, if the exempt person was treated like a temporary
permit holder, their offence may enable the Department of Labour to
revoke their exempt status and remove them from New Zealand.
107
There may no longer be a need for a distinct exemption provision –
The details and operation of each type of exemption vary. Some
require similar processes to obtaining a visa or permit. For example,
diplomats coming to New Zealand are exempt from visa and permit
requirements but must complete arrival and departure cards. They
also have their diplomatic status confirmed by an immigration
officer, who enters an endorsement into their passports.
108
The Advance Passenger Processing system screens visa- and/or
permit-exempt people before they travel to New Zealand. This blurs
Section 7 of the Immigration Act is discussed in more detail in Section 6: Exclusion and
expulsion.
36
36
the distinction between their exempt status and that of people who
require a visa to travel. There is an opportunity in this Immigration
Act review to reduce the complexity of the current exemption
system.
What do other countries do?
109
In line with New Zealand and broad international practice, Canada,
Australia and the United Kingdom (UK) all generally require noncitizens to have some form of authority to travel to, enter and
remain in the country. Canada and the UK explicitly protect (via
immigration legislation) the right of their citizens to enter and
remain in the country, mirroring the provision in New Zealand’s
Immigration Act.
110
Canada uses a visa and permit system to manage immigration. The
UK and Australia have visa-only systems. In all cases, the
documents (whether they are called “visas” or “permits”) are able to
distinguish between authority to travel to the country and the
authority to enter and stay.
111
Both Canada and the UK have flexibility in their systems to make
exceptions to standard visa (and permit) requirements. Canada has
visa-free arrangements with a number of countries and also allows
for permit exemptions. The UK has visa exemptions made up of visafree arrangements and “others”. These “others” include people who
are fully exempt (for example, diplomats, consular officers and
Heads of State), as well as those who are partially exempt (for
example, members of foreign governments and visiting forces).
112
All non-Australian citizens require a visa to travel to and enter
Australia, without exception. However, Australia does have a range
of options for facilitated travel and entry for particular groups. For
example, the Special Category Visa for New Zealanders is equivalent
to a “visa-free arrangement”. The Australian Special Purpose Visa,
for visiting armed forces or crew of some ships, is like New Zealand’s
temporary permit exemption.
113
Australia also has an electronic travel authority (ETA) to facilitate
entry for short visits which is similar to New Zealand’s visa-free
system. ETAs are issued by authorised travel agents and airlines and
require only minimal security clearance checking. There are 32
countries whose citizens are eligible for ETAs.
Proposal
114
37
It would be possible to retain the current terminology of ‘“visa”,
“permit” and “exemption”. Distinct terms make drafting legislation
easier. The approach outlined below, however, includes a change to
terminology and is preferred.
37
Establish a single, integrated visa framework
115
38
The various elements of the visa and permit system, and exemptions
regime would be brought together into a single framework that
would:
•
use the single term “visa” for all the documents that carry the
status and conditions that applied to a non-citizen’s travel to and
stay in New Zealand
•
provide a menu of requirements that could be applied to various
groups of non-citizens. The requirements would include who must
hold a visa before travelling to New Zealand and who may apply
for a visa on arrival. The way to apply could also be specified, for
example, online applications or fully-documented paper
applications.
•
specify generic types of visa available (for example, permanent
or temporary)
•
specify general conditions for each type of visa and empower the
imposition of specific conditions on individuals, and
•
specify or allow regulations to specify the physical state a visa
would take. For example, the current Immigration Act provides
for visas and permits to be recorded in passports or to be issued
by being electronically entered in departmental records.
116
Using one term – “visa” – to describe travel, entry and stay would
primarily be a terminology change from the status quo. The current
functions of visas and permits would remain. The new visa would still
give authority to travel to New Zealand as well as authority to enter
and stay. A distinction could be made between a visa received prior
to travel and a visa issued when a non-citizen was in New Zealand.
Differences could also be made between a visa stamped in a
passport or issued electronically.
117
Under this option, there would be the flexibility to make exemptions
for individuals or groups of people from the standard requirement to
hold a visa to travel to, enter and remain in New Zealand. The extent
and stage of scrutiny and risk assessment would vary for different
groups.
118
To be consistent with a visa-only system, the status of exempt
people would be recorded in a visa, even if this was only an
electronic visa issued in departmental records. The legislation would
provide for the following:
•
General exemptions – These would cover travel to, and entry and
stay in New Zealand and would be indefinite (for example, for
Australian citizens).
•
Partial exemptions – These could be given to the requirements
for an individual or group of people to have a visa to travel to,
enter and stay in New Zealand. For example, current visa-free
countries could be exempted from the requirement to hold a visa
38
to travel to New Zealand but still be required to hold a visa to
enter and stay in New Zealand.
119
•
Flexibility for case–by-case assessments in relation to exemptions
– Senior delegated immigration officers could override
exemptions. For example, the power could be used in cases
where an individual was a character or security concern. The
Minister of Immigration could also be empowered to temporarily
suspend exemptions for a group of people in a pandemic. Any
ongoing suspension over a certain period of time could require
change to regulations.
•
The ability to specify the level at which basic entry and exit data
must be captured (for example, some passengers are currently
exempt from the requirement to submit arrival and departure
cards).
Under this approach, legislation would set out generic visa types, for
example, permanent and temporary. Policy categories would
continue to specify the rules for approval and the conditions that
applied after approval. A further development of this approach would
be to grant visas with the same name as the policy (for example,
approval under the Skilled Migrant Category would lead to the grant
of a Skilled Migrant Visa).
Benefits and costs
39
120
This approach would be consistent with the objective of regulating
entry and stay in New Zealand’s interests. In particular, it would
contribute to our interests in facilitating entry to generate
sustainable economic growth and strong communities, while
managing risks in order to maintain the safety and security of New
Zealand.
121
Having the high-level framework for visas in the legislation and
supporting detail in regulations and policy is consistent with a
framework approach (discussed in Subsection 3.3: What level of
detail should be in the primary legislation?). It allows for maximum
flexibility to change criteria as required, contributing to the goals of
an effective and efficient immigration system.
122
This proposal builds on the status quo and therefore retains many of
its strengths. Using the single term “visa” would simplify the system
from a user’s point of view. It would be consistent with the principle
of understandable and accessible legislation. Because the existing
functions of a visa and a permit will be retained under this proposal,
effective communication of legislative changes would be required to
avoid confusion.
123
A single document system may allow for some processing efficiencies
at the border, by dispensing with the need for a permit to be
endorsed in passports with an ink stamp by Customs. Similarly,
processing efficiencies may be gained onshore by no longer
endorsing both a visa and a permit in passports. For example, many
39
people granted long-term work permits onshore need to travel
internationally during their stay in New Zealand. Currently, in
addition to their work permit, they must be granted a work visa so
that their permit is reinstated at the border when they return to New
Zealand.
124
Bringing exemptions into a single-visa framework reflects the nature
of current exemptions more accurately. That is, they are devices that
allow groups of people to be excused from some of the general
scrutiny requirements and conditions of stay. They are not intended
to place someone outside the immigration framework altogether.
125
Expanding the ability to vary exemptions on a case-by-case basis
would mean that New Zealand would be better placed to manage
risk, particularly at the border. To mitigate the risk of inappropriate
use of such powers, they would be reserved for senior delegated
officials, and there would be clear guidelines around appropriate
application. Ministerial ability to temporarily suspend exemptions
(including visitor visa-free arrangements) would allow an immediate
response to risk in extreme circumstances (for example, a specific
escalation in terrorist or public health threats).
126
Maintaining rules for approval in policy (rather than in legislation)
would maintain the flexibility of New Zealand’s immigration policy
regime. Policy can currently be changed quickly to meet new needs.
This flexibility would be reduced if each new or amended policy
required the establishment of a specific visa class in the Immigration
Act or regulations.
127
Reducing the number of types of visa may provide more simplicity
for applicants and third parties. Matching the name of the visa
granted to the name of the policy category would also help people
understand the system.
128
This approach could create some administrative costs. Effective
communication with key interest groups would be needed to avoid
confusion around the changes.
Alternative not considered optimal
129
40
A system where everyone is required to submit a full visa application
before travelling to New Zealand has been considered. This system
would allow risk assessment to occur in all cases before the person
reaches the border. It would not allow the flexibility, however, to
apply varying levels of scrutiny in different cases and to thereby
facilitate the entry of people New Zealand wants.
40
4.1 Key questions
1
Should the single term “visa” be used for all travel, entry and stay
authorisation granted to non-citizens?
2
Should the system continue to allow for exceptions to the standard
requirement to have authorisation to travel to, enter and remain in New
Zealand (for example, through the equivalent of visa-free arrangements or
permit exemptions)?
41
41
4.2
Which of the current visa and permit exemptions should be reexamined?
Status quo
130
The following general visa and permit exemptions are currently in
place:
•
Any person who is permit-exempt, either by regulations or in the
Immigration Act, is also exempt from the requirement to obtain a
visa.
•
Australian citizens are exempt from the requirement to hold a
permit (and, therefore, a visa).
•
Australian Resident Return Visa holders are exempt from the
requirement to obtain a visa and are granted a New Zealand
residence permit on arrival.
•
There are 53 visa-free arrangements that exempt visitors from
various countries from the requirement to hold a temporary visa.
At the border, these people must seek a visitor’s permit valid for
no longer than three months (or six months in the case of British
citizens).
131
Temporary exemptions from the requirement to hold a permit (and
thus a visa) detailed in the Immigration Act include foreign
diplomats, crew or passengers of ships, crew of aircraft and
members of visiting armed forces.
132
Senior officials have delegated power to exempt a person from the
requirement to obtain a temporary visa on a case-by-case basis.
Senior officials also have delegated power to exempt individuals from
the requirement to hold a permit. In some circumstances, they can
also require that an exempt person hold a permit.
What works well?
133
134
42
Some current exemptions are low-risk and/or some result from an
external agreement. It is likely that, under any new visa and permit
framework, these exemption categories would remain in effect,
perhaps under a new name. The categories are likely to be:
•
Australian citizens (consistent with the Trans-Tasman Travel
Arrangement)
•
foreign diplomats (consistent with the Diplomatic Privileges and
Immunities Act 1968 and the Consular Privileges and Immunities
Act 1971), and
•
visiting military personnel (consistent with the Visiting Forces Act
2004).
The current visa-free arrangements for short-term visitors are
subject to ongoing monitoring. These arrangements will not be
examined as part of this review. Exemptions for people who
generally present an acceptably low level of risk are of benefit
because they:
42
•
facilitate access for tourists, family visitors, business visitors and
potential future migrants
•
strengthen bilateral relationships and increase and enhance
people-to-people links, and
•
facilitate reciprocal visa-free access for New Zealand (although
New Zealand usually grants visa waivers technically on a
unilateral basis, to preserve the flexibility to suspend the
waivers).
What are the problems/opportunities?
135
Unclear rationale for some current exemptions – The need for
increased vigilance on individuals or groups of people who may
present security risks to New Zealand brings into question the
rationale behind some exemptions. For example, the visa and permit
exemption for crew of sea-going vessels may create an undue risk
for New Zealand.
136
This review provides the opportunity to examine current exemptions.
Relevant international or reciprocal agreements need to be taken
into account, as do current risk assessment tools. For example,
Advance Passenger Processing could be used as a tool to minimise
risks, to allow exemption from the requirement to hold a visa before
travel, but require a visa once in New Zealand.
137
Unclear rationale for exempting some people from the need to
submit arrival and departure cards – Holding a visa and/or permit
exemption does not mean unregulated and unrecorded entry into
New Zealand. However, some exempt groups of people do not have
to fill in arrival or departure cards (such as crew on commercial
aircraft). This complicates record-keeping, as it is possible for people
who arrive by air and have their arrival recorded on the immigration
system to then depart by sea without completing a departure card.
This means their departure from New Zealand will not match their
arrival record and impacts on the accuracy of immigration data.
Proposal
43
138
Exemptions will be reassessed to allow New Zealand to ensure that
both the air and sea borders have appropriate risk management
protocols, and to improve the efficiency of the system. Specific
proposals regarding which exemptions should be included in the
Immigration Act have not yet been developed.
139
Changes to the visa and permit system and the collection of border
movement data would have resource implications for the Department
of Labour and agencies such as the New Zealand Customs Service.
There could be some new compliance costs for people who currently
do not have to interact with the immigration system at all, but would
be required to in the future. The operational and compliance
implications of possible changes need to be assessed in the context
of maintaining New Zealand’s safety and security.
43
140
You are welcome to put forward your views on which of the current
exemptions should be retained.
4.2 Key question
1
44
Are all the current permit exemptions justified?
44
SECTION 5: DECISION-MAKING
Scope of section
5.1
Who should make individual immigration decisions?
5.2
In which cases should potentially prejudicial information and reasons for
decisions be given to immigration applicants?
5.3
What additional tools are required for effective decision-making?
141
142
45
Decision-making is a core function provided for in the Immigration
Act. Decisions broadly relate to:
•
who may be issued a visa to travel to New Zealand or a permit to
enter or remain in New Zealand, and
•
expulsion of temporary and permanent permit holders.
A key principle identified in Section 3: Purpose and principles is
effective immigration decision-making. This means having a
legislative framework that provides for quality decisions that reflect
New Zealand’s range of immigration interests. To achieve effective
decision-making, decisions need to:
•
be made by the right people
•
be guided by New Zealand’s interests, and
•
follow transparent, efficient processes.
45
5.1
Who should make individual immigration decisions?
143
This subsection considers who should make decisions on different
types of individual immigration applications.
Status quo
144
The Immigration Act gives many decision-making powers to the
Minister of Immigration. Given that over 400,000 immigration
application decisions are made each year, the Act enables the
Minister to delegate most of these decision-making powers to
immigration officers.
145
Government immigration policy contains the rules and criteria under
which immigration decisions are made by delegated immigration
officers. Delegations set the level of seniority required for certain
decision types. Most immigration decisions are made, in the first
instance, by immigration officers. Decline decisions may then be
reviewed by independent appeal authorities or the courts, where this
is provided for in the Immigration Act.
146
The Minister of Immigration has the ability (but is not compelled) to
intervene in individual cases at any point. Ordinarily, the Minister
limits intervention until the end of the normal decision-making
process and to special cases that warrant ministerial intervention.
147
In order to ensure a fair system of immigration decision-making, the
Immigration Act requires that the Minister of Immigration formally
certify government immigration and residence policy. Government
residence policy is a subset of government immigration policy and
provides the basis for residence decisions.
148
Immigration officers have a certain amount of discretion in
temporary entry decision-making. However, they have limited
discretion in residence decision-making because of the requirement
that these decisions comply with government residence policy
approved by the Minister of Immigration. Only the Minister of
Immigration can approve a residence application as an exception to
residence policy (but cannot decline a residence application if
residence policy requirements are met). Both the Minister of
Immigration and delegated immigration officers have the
discretionary power to grant a permit to a person who is in New
Zealand unlawfully.
Ministerial decision-making
149
46
Decision-making powers relating to unique or special circumstances
are often limited to the Minister of Immigration. Ministerial decisions
most commonly relate to:
•
special directions to lift prohibitions that exclude people from
entry to New Zealand
•
granting permits to unlawful migrants
46
150
•
making exceptions to government residence policy (such as
approving people who fall outside Skilled Migrant Category policy)
•
revoking residence permits, and
•
ordering the deportation of residents convicted of serious
offences.
Immigration officers have delegated authority to make some of these
decisions but are unable to grant residence as an exception to policy,
revoke residence permits, or make deportation decisions.
When is the Minister of Immigration unable to intervene in decision-making?
151
Decision-making powers in regard to refugee status claims are
conferred directly on refugee status officers. The Minister of
Immigration has no powers to intervene in refugee decisions.
Likewise, the Minister has no powers to intervene in appeals before
the independent appeals bodies (the Residence Review Board, the
Removal Review Authority, the Refugee Status Appeals Authority and
the Deportation Review Tribunal).
152
These provisions provide important safeguards for independent
decision-making and there are no proposals to alter them.
What works well?
47
153
The Immigration Act provides the Minister of Immigration with the
ability to be involved in virtually all immigration decisions if he or she
wishes. This is consistent with the Minister’s role, as part of the
executive government, in determining the policy that informs
immigration decision-making.
154
Ministerial discretion in decision-making is useful to address
exceptional or unforeseen circumstances that warrant departure
from established policy. The Minister of Immigration’s discretionary
power acts as a safety valve to prevent any unintended
consequences of strictly applying rules and criteria. As the person
ultimately responsible for government immigration policy, the
Minister is well placed to judge when an exception to policy is
warranted.
155
The Minister of Immigration has a good understanding of the “big
picture” of immigration and what kinds of immigration decisions are
in New Zealand’s interests. As a person elected to the government,
the Minister has broad social accountability for the way in which
discretion is exercised.
156
The delegation of immigration decision-making powers enables the
Department of Labour to take responsibility for day-to-day
operations and the delivery of immigration services. Resources and
processes can be applied across the business in a way that can
achieve effective and timely decisions. Reporting and monitoring
requirements help to maintain integrity in the immigration system
and accountability to the public for immigration outcomes.
47
157
The delegation of decision-making powers with restrictions or
conditions means that significant immigration decisions (such as
health or character waivers) can be delegated according to an
immigration officer’s seniority. This ensures that decisions are made
by the right people, with an appropriate level of seniority, and
provides greater accountability to the public.
158
The ability of immigration officers to exercise discretion in
considering temporary entry applications provides them with the
flexibility to recognise a range of different circumstances having
regard to government’s expected high level outcomes.
159
Enabling both the Minister of Immigration and immigration officers
the discretionary power to grant a permit to a person who is in New
Zealand unlawfully enables people to regain lawful status where
appropriate. No changes are proposed to this power. Subsection 10.2
discusses this issue in further detail.
What are the problems/opportunities?
High ministerial involvement in decision-making
48
160
While the Minister of Immigration does not have to intervene in
individual cases under the current legislation, there is public pressure
to do so. In practice, the Minister does respond to all requests for
intervention. In 2004/05, over 4,000 personal representations were
made to the Minister. This has steadily increased from around 2,000
personal representations in 1998/99. The increase is in line with
increasing numbers of immigration applications to travel to, enter
and stay in New Zealand each year.
161
The high number of personal representations creates pressure on the
Minister of Immigration. It raises the issue of whether immigration
decision-making is an appropriate use of ministerial resources. The
question of resources is exacerbated by the fact that the Minister of
Immigration must be involved in decisions relating to exceptions to
residence policy, permit revocation and deportation. Requiring a
ministerial decision on revocation and deportation may be
unnecessary under the new expulsion model outlined in Section 6:
Exclusion and expulsion and is discussed in that section.
162
In some instances, an immigration decision is sought directly from
the Minister of Immigration without the applicant first making a
formal application to the Department of Labour. This can unfairly
disadvantage those who follow normal immigration processes
(although many are referred back to the Department of Labour for
the person to lodge an application).
163
The Minister of Immigration may also be asked to review declined
applications, either after or instead of an applicant appealing to an
independent appeal body. This is inconsistent with the rationale for
the existence of the appeal bodies, which were established in 1991
to reduce the workload of the Minister.
48
164
There is a risk of creating de facto immigration policy if all personal
representations are responded to by the Minister of Immigration and
exceptions are routinely made. It reduces the incentive for applicants
to follow established immigration processes.
A lack of flexibility in residence decision-making
165
There is no flexibility for immigration officers to make exceptions to
residence policy. Officers must decline a residence application unless
all policy criteria are strictly met, even if, on balance, it would be in
New Zealand’s interests for the applicant to be granted residence.
While an appeal can be made to the Residence Review Board, or a
case can be put forward for the Minister of Immigration to consider
as an exception to policy, this is a time-consuming and cumbersome
process. This appears incompatible with the objective of facilitating
migrants in New Zealand’s interests. It means, for example, that
New Zealand may miss out on migrants who could contribute to
economic growth and strong communities. Some potential migrants
may choose not to apply to come to New Zealand due to not meeting
residence policy.
Example 1
166
Ms A has been working as a surgeon in New Zealand on temporary
permits for two years and applies for residence.
167
As Ms A is 56 years old, the immigration officer cannot grant her
residence. The officer would like to make an exception to policy as
they know Ms A’s skills are valuable and of benefit to New Zealand.
Ms A is only one year older than the age limit for skilled migrant
applicants.
168
Ms A has to request the Minister of Immigration to consider granting
her residence as an exception to government residence policy.
What do other countries do?
49
169
Like New Zealand, Australia, Canada and the United Kingdom (UK)
all have decision-making powers vested in the Minister, with
provision for delegation of some of these powers to officials. Both
Canada and the UK allow a person to approach the Minister at any
point, including prior to lodging an application. While allowing
flexibility, this has created problems for Canada with allegations of
misuse of power. It also creates large flows of ministerial requests.
170
The Canadian Minister must report to Parliament each year on the
number of permits he or she has issued. UK Ministers may exercise
discretion where they see fit, provided they act reasonably and
lawfully. Ministers primarily become involved in cases due to their
high public profile or when there have been significant operational
failures.
171
Australia, on the other hand, limits ministerial decision-making until
the end of the decision-making process. This protects the Minister
49
from political pressure to intervene while allowing ultimate
government control. A parliamentary reporting mechanism has been
established to make the use of ministerial discretion more
transparent and to counter perceptions of paternalism and bias.
172
Australia does not allow for discretionary exceptions to policy to be
made by officials in any decision-making. Officials may only apply
judgement on whether policy criteria have been met. Canada allows
flexibility for officials to screen some skilled migrants in, despite not
meeting all the specified criteria, if they are likely to settle well
economically. Immigration officers in the UK have the power to
exercise discretion and grant an application, even if the applicant
does not fully meet the requirements.
Proposal
173
Two options are presented here. Both options retain a core decisionmaking role for the Minister of Immigration. Option A retains the
current legislative provisions, with administrative improvements to
the process for handling personal representations to the Minister.
Option B proposes the delegation of further decision-making powers
to delegated immigration officials. Option B also includes the
administrative improvements discussed in Option A, and is preferred.
Option A – Status quo
50
174
The Minister of Immigration would continue to be responsible for
decision-making relating to exceptions to government residence
policy. The Minister would be unable to delegate this power to
immigration officers. The Minister of Immigration would retain
authority to intervene in any individual case.
175
Administrative improvements would be made to streamline
processes in order to limit the volume and nature of personal
representations considered by the Minister of Immigration. These
would not require legislative change, but would involve establishing
clear principles about the type of cases that the Minister is prepared
to consider and clearly communicating these to the public.
176
These principles could include a requirement that an applicant has
exhausted all other avenues of decision-making and appeal before
the Minister of Immigration will consider their individual case. A limit
could be placed on the number of personal representations an
applicant could make. If these principles were not followed, their
case would be referred to the Department of Labour, or dismissed.
50
Benefits and costs
177
Continuing to restrict the ability to make exceptions to government
residence policy would recognise the significance of these decisions
and the need to ensure a high level of public accountability. It would
not, however, address the risk of New Zealand missing out on
migrants who are likely to benefit New Zealand.
178
Improving the administrative processes for handling personal
representations to the Minister of Immigration would enable the
Minister to focus on exceptional, rather than routine cases. It would
narrow the range of requests made directly to the Minister, reduce
ministerial workload and ensure that the Minister is always a last
resort.
179
Seeking ministerial discretion as a last resort would mean that
applicants may incur the expense of lodging a formal application.
There may also be costs associated with appealing before seeking a
decision from the Minister of Immigration. Most applicants who use
the normal immigration process pay the related fees. Exempting
people who make direct personal representation to the Minister
reduces the fairness of the system for all users.
How are exceptions to residence policy handled under the status quo?
180
People who do not meet residence policy must still make a formal
application to the Department of Labour. They may then appeal the
decline decision to the Residence Review Board. The Board is not
able to uphold the appeal, but may refer the application to the
Minister of Immigration with a recommendation that it be approved
as an exception to policy.
181
People are also free to approach the Minister of Immigration directly
at any time, but the Minister may require that all other avenues be
exhausted first. The proposed administrative improvements are likely
to result in the Minister being an option of last resort.
Option B – Enable delegated senior immigration officials to make
positive exceptions to residence policy
51
182
The legislation would enable the Minister of Immigration’s power to
make positive exceptions to residence policy to be delegated to
selected senior immigration officials. The Minister would, however,
still retain power to make positive exceptions to residence policy.
183
Guidelines for when the Department of Labour could make
exceptions to residence policy would be agreed with the Minister of
Immigration. The guidelines could specify that delegated senior
immigration officials could only make exceptions to policy where this
would clearly benefit New Zealand. For example, there is likely to be
a clear benefit to New Zealand to approve an applicant highly skilled
in an area of absolute skills shortage but who does not meet the
standard age criteria (see Example 1 above).
51
184
As is the case for the Minister of Immigration under the current
legislation, delegated officials would only be able to make positive
exceptions to policy – they would not be able to decline an
application that meets government residence policy.
185
Further, as discussed in Option A, administrative improvements
would be made to streamline processes in order to limit the volume
and nature of personal representations considered by the Minister of
Immigration.
Benefits and costs
186
Enabling the Department of Labour to make positive exceptions to
policy would provide more flexibility in residence decision-making.
This would meet the desired objective of facilitating the entry of
migrants in New Zealand’s interests, while following fair and efficient
processes. It would also help to manage the high ministerial
workload.
187
There are manageable risks associated with giving senior
immigration officials such discretion. The risks include perceptions of
reduced transparency, increased appeals or judicial review of
decisions not to approve an exception to policy, and the potential for
officials’ decisions to be seen as setting precedents for future
exceptions to policy. Officials would also come under pressure from
applicants to use discretionary power in their favour.
188
Immigration officials do regularly exercise discretion in the context of
temporary entry decision-making. In addition, these risks would be
mitigated by limiting the decision-making authority to a small
number of officials at a senior level. The officials would have a
thorough understanding of government residence policy objectives.
189
Clear guidelines for exercising discretion would be agreed with the
Minister of Immigration, and the Department of Labour would report
regularly to the Minister on the sorts of decisions being made.
Immigration officers would not be obliged to consider an application,
but could do so where they felt the case warranted further
consideration.
How would exceptions to residence policy be handled under Option B?
190
52
In the normal course of assessing a residence application, an
immigration officer may consider that there are exceptional
circumstances that indicate that granting residence to the person
would benefit New Zealand. In such a case, the immigration officer
could refer the application to a senior appropriately-delegated
immigration official to consider making an exception to policy. This
officer may decline the application on policy grounds or approve it as
an exception to policy.
52
191
There would be no obligation for an immigration official to consider
exceptions to policy, or to give reasons for not approving as an
exception to policy.
192
Where an application was declined, the person would still be able to
appeal the decision to the Residence Review Board. The Board (or
equivalent independent authority) may determine whether the
appeal was correct on the facts, but must refer cases to the Minister
of Immigration where exceptions to policy may be warranted. The
person could also approach the Minister directly, but should usually
exhaust other avenues first.
An alternative considered – no ministerial involvement in individual
cases
193
A further option would be to enable the Minister of Immigration to
distance him or herself from individual decision-making and to focus
solely on policy and the strategic directions of the immigration
portfolio. All individual decision-making powers would be conferred
directly on officials.
194
This option is not considered appropriate because it would represent
a significant shift from the status quo and remove a useful safety
mechanism. None of the other countries compared to New Zealand in
this discussion paper fully remove the Minister of Immigration from
individual decision-making.
5.1 Key question
1
53
Should the power to make positive exceptions to residence policy be delegable
to selected senior immigration officials?
53
5.2
In which cases should potentially prejudicial information and
reasons for decisions be given to immigration applicants?
195
This subsection considers two key mechanisms that help ensure
fairness in immigration decision-making – giving potentially
prejudicial information and reasons for decisions to applicants.
(Another mechanism for helping to achieve fairness in decisionmaking is access to review or appeal, which is discussed in Section
7: Access to review and appeal.)
What is potentially prejudicial information?
196
Potentially prejudicial information is information that a decisionmaker thinks may lead to an application being declined. For
example, information may indicate that a person intends to work in
New Zealand when they are applying for a visitor visa.
Status quo
54
197
The Immigration Act establishes an implicit framework for fairness in
decision-making that allocates rights to individuals on a sliding scale
based on an appropriate balance between the interests of New
Zealand and the interests of individuals in the circumstances.
198
The Immigration Act provides that reasons must be given in writing
for any decision to refuse to grant a permit, or a particular type of
permit, to an applicant who is in New Zealand. Section 23 of the
Official Information Act 1982 also provides that a person who is in
New Zealand has a right to be given reasons for decisions made by a
government department or Minister of Immigration.
199
The Immigration Act provides for exceptions to these rules in a
number of cases. For example, reasons for decisions do not have to
be given when:
•
declining to grant a permit to a person who is in New Zealand
unlawfully
•
declining to make an exception to residence policy
•
making, serving or cancelling a removal order, or
•
the Minister of Immigration decides a special direction request.
200
The Immigration Act is silent about the provision of information on a
decision to refuse to grant a visa to an applicant who is offshore. It
therefore does not explicitly require reasons to be given for decisions
when an applicant is offshore. Similarly, the Official Information Act
does not apply to non-citizens or non-residents outside New Zealand.
201
In the interests of the administrative law principles of fairness and
natural justice, however, it is an operational requirement for reasons
for decline decisions (including offshore visa declines) to be routinely
given. Information that is potentially prejudicial to the applicant is
also provided to applicants before a decision is made, to allow them
54
to respond. Exceptions are only made where there is an explicit
exception provided for in the Immigration Act.
What works well?
202
The Immigration Act has established a system that allows the
information used in decision-making to be disclosed to and contested
by applicants in most cases. It provides exceptions in cases where
the decision is essentially about making a decision outside the
normal requirements of the Immigration Act. For example,
information does not have to be disclosed about a decision to decline
a permit to a person who is in New Zealand unlawfully, or to decline
to make an exception to residence policy. In these cases, the
Immigration Act provides for limited rights to information, and
reasons for decisions do not have to be given.
What are the problems/opportunities?
203
The Act is unclear on the requirements for offshore decisions. The
current operational requirement of always giving potentially
prejudicial information and reasons for decisions to offshore
applicants means that offshore applications cannot be declined on
the basis of classified information. This may prevent New Zealand
from making appropriate decisions when open-source (nonclassified) information is not available. The Immigration Act does not
clearly specify a process that allows the Department of Labour
simply to refuse to grant a visa on the basis of classified information.
204
This review presents an opportunity to reconsider which types of
decisions warrant potentially prejudicial information and reasons to
be given according to the interests involved.
What do other countries do?
55
205
As in New Zealand, Australia, Canada and the UK generally provide
potentially prejudicial information and reasons for decisions to
applicants. They also provide for exceptions to this practice in some
cases.
206
Australia allows people to comment on the information that is being
used to assess their visa application, with the exception of classified
information. The immigration department informs people who have
been refused a visa of the generic reasons their application has failed
(for example, that the person did not meet character policy).
207
Canada’s system is similar to New Zealand’s. People are provided
with the opportunity to comment on the information an immigration
officer is using to make a decision on their application. If a person’s
application is unsuccessful they are also provided with the grounds
on which the application was declined.
208
If a person is refused a visa to the UK, an entry clearance officer will
provide them with the reason for the refusal.
55
Proposal
209
There are a range of possible responses to this issue. All immigration
applicants (both onshore and offshore) could be given potentially
prejudicial information and reasons for decisions, or only those with
particular interests at stake could be given this information. For the
reasons identified above, the status quo in its current form creates
difficulties. Two options are presented below. Both options could
meet the objectives of the review. At this stage, there is no preferred
approach.
Option A - Potentially prejudicial information and reasons for
decisions to be given to onshore applicants only, with exceptions
210
Under this option, potentially prejudicial information and reasons for
decisions would be given to onshore applicants only. The new
legislation would retain the current exceptions, such as persons
unlawfully in New Zealand. In addition, the legislation would create a
new exception: an application may be declined on the basis of
classified information without disclosing the classified information to
the applicant.
211
Onshore applicants declined on the basis of classified information
would have an avenue to have the decision reviewed. Section 9: The
use of classified information discuses a new process with appropriate
safeguards for using potentially prejudicial classified information in
onshore decisions.
Benefits and costs
56
212
This option would recognise that people who are in New Zealand are
likely to have greater connections to New Zealand and greater
interests at stake. It would allow the new Immigration Act to have a
clear, simple decision-making framework. It would allow the
government to establish more effective and efficient decision-making
processes.
213
There are likely to be a very small number of cases each year where
classified information is relevant. This option would mean that
offshore applicants have no rights to access potentially prejudicial
information or reasons for decisions – including classified
information. In onshore decisions, a proposed new process including
appeal rights is discussed in Section 9: The use of classified
information.
214
Allowing decision-makers to withhold potentially prejudicial
information and reasons that were classified would strengthen the
ability of New Zealand to choose who may enter and stay. This
approach would align with the provisions in the Official Information
Act that limit non-residents’ and non-citizens’ access to information
when they are offshore. It would allow New Zealand to make
appropriate decisions based on all available information.
56
Option B - Potentially prejudicial information and reasons for
decisions to be given to onshore and offshore applicants, with
exceptions
215
Under this option, the new legislation would set out that potentially
prejudicial information and reasons for decisions should be given to
onshore and offshore applicants, unless there is an exception in the
legislation. The new legislation would retain the current exceptions,
such as persons unlawfully in New Zealand. As with Option A above,
the legislation would create a new exception for applications
involving classified information.
216
Offshore applicants – In the case of offshore applicants for
temporary entry or residence, where a decision was declined on the
basis of classified information, there would be no avenue of appeal
on this matter. Where an applicant is offshore, they have less
connection to New Zealand than an applicant who is living and
working in New Zealand.
217
Onshore applicants – In the case of onshore applicants declined on
the basis of classified information, there would be an avenue to have
the decision reviewed. Section 9: The use of classified information
discusses this new process.
Benefits and costs
218
This option would also allow the new Immigration Act to have a clear
decision-making framework. It would establish legislation that
provided for fair processes by requiring immigration officers to
provide reasons for their decisions to applicants in most cases.
219
As with Option A, this option would allow decision-makers to
withhold information that was classified, whether it was potentially
prejudicial information or reasons for decisions. It would strengthen
the ability of New Zealand to choose who may enter and stay.
However, providing potentially prejudicial information and reasons
for decisions to most offshore applicants incurs administrative costs.
5.2 Key questions
1
2
57
Should decision-makers give potentially prejudicial information and reasons for
decisions to:
•
Onshore applicants only, or
•
Onshore and offshore applicants.
Do you agree that an application should be able to be declined on the basis of
classified information without disclosing the classified information to the
applicant?
57
5.3
What additional tools are required for effective decision-making?
220
This subsection considers future-proofing the legislation by enabling
the use of additional tools such as electronic decision-making and
decision-making by third parties. This empowering provision would
be subject to future policy decisions made by the government.
Status quo
221
Existing legislation generally requires the Minister of Immigration
and delegated officers to make immigration decisions in person,
although visas and permits may be issued electronically. There is
provision for automated decision-making in making Invitations to
Apply under the Skilled Migrant Category and screening travellers
offshore through Advanced Passenger Processing. The Department of
Labour also uses electronic processes to conduct an initial
assessment of student permit applications lodged online. However,
an immigration officer must still make the final decision to grant or
decline a student permit.
222
Third parties in New Zealand such as employers or education
providers often provide significant input into the decision-making
process. For example, employers can advise whether particular skills
are in short supply in New Zealand. They can advise on the likelihood
of being able to fill a vacancy locally with respect to work permit
policy. Education providers provide confirmation that international
students have an offer of a place at their institution and have paid
course fees. In many cases, they supply the Department of Labour
with all the necessary information electronically. In both cases, the
decision to grant a visa or permit must currently be made by an
immigration officer.
What works well?
223
Allowing only the Minister of Immigration and delegated immigration
officers to make immigration decisions enables the government to
keep a tight control on who is being granted visas and permits. It
ensures that all relevant information, including character
information, can be taken into account.
224
Having a small number of decision-makers also promotes
consistency and transparency of decision-making. There may be
more accountability and integrity in the decision-making process.
Decisions made by people enable discretion to be applied, with
exceptions to policy made where appropriate. It means that any
risks can be actively managed.
What are the problems/opportunities?
225
58
The primary problem with the existing provisions for delegating
decision-making is that they are not flexible enough to respond to
future technology developments. The Department of Labour is
increasingly moving towards electronic lodgement of applications,
58
and there is scope to develop electronic decision-making processes
in the future. This is likely to be used for cases that involve routine
applications and low risk applicants.
226
The review also presents an opportunity to make legislative provision
for other third parties, such as education providers and employers
who could make good decisions, to decide immigration applications
or to contribute to an immigration decision. They would obviously
need to be held to account for decisions through strict monitoring
and auditing processes.
What do other countries do?
227
Australia allows for automated decision-making where direct human
intervention is not required. There is a caveat on this provision in
that electronic decisions can only be approval decisions (with
applications that are likely to be declined referred to an individual
decision-maker). The Minister for Immigration has the right to
override any decision made electronically.
228
The UK does not have automated decision-making. While Canada
plans to use electronic decision-making in the future, it does not
currently have such provision in place.
229
As with New Zealand, third parties may provide input into the
decision-making process in Australia and Canada, but the authority
to make a decision rests with departmental officials.
Proposal
230
Three options are presented here. Option A would preserve the
status quo and require the Minister of Immigration or immigration
officers to make all immigration decisions. Option B would enable
electronic decision-making in the future. Option C would enable
third-party decision-making in the future and could be implemented
alongside Option B. At this stage, Option B is desirable, but no clear
view on Option C has yet been reached.
Option A – Status quo
231
The legislation would continue to require that immigration decisions
be made by the Minister of Immigration or delegated immigration
officers. Electronic processes and the input of third parties could be
used to support decision-making, but the final decision would have
to be made by the Minister of Immigration or a delegated officer.
Benefits and costs
232
59
As discussed above, this option would ensure that all information is
weighed up and any risks actively managed. It also promotes
transparency, consistency and accountability to the public. However,
continuing to require the Minister of Immigration and immigration
officers to make all immigration decisions restricts the ability to
streamline immigration processes in the future through the use of
59
electronic technology. It therefore lacks the flexibility that enabling
legislation should provide.
Option B – Provide for electronic decision-making
233
The Immigration Act would enable and support electronic decisionmaking. Electronic decision-making would involve applications, or
aspects of them, being processed automatically on the basis of
application information lodged online. A decision on the application
would also be issued electronically. Its use would be restricted to
low-risk application types (for example, student permit renewals)
and, as with Australia, any decision to decline an application would
be referred to an immigration officer.
234
This mechanism is unlikely to be implemented immediately. Rather,
the Immigration Act would enable electronic decision-making
proposals to be developed by the government in the future.
How would electronic decision-making work?
235
Electronic decision-making could extend the system currently being
used to process student permit renewal applications lodged online.
The system is programmed to make a series of decisions, in the
same way as an immigration officer, based on the information
provided. At present, the system sorts applications into three types:
low-risk applications that can be approved, high-risk applications,
and other applications that need to be assessed by an immigration
officer. In all cases, an immigration officer makes the final decision
to approve or decline a permit. With electronic decision-making, the
system could automatically approve the applications that are
assessed as low-risk.
Benefits and costs
60
236
The primary benefit of this option is that it would enable possible
changes to the way in which immigration decisions are made in the
future. In particular, it would provide flexibility for technological
developments that could help to streamline immigration decisionmaking processes. Improvements to the timeliness of decisionmaking through electronic means would also enable decision-making
to focus on more resource-intensive work (such as permanent
residence decisions).
237
A disadvantage of electronic decision-making is that it does not leave
room for discretion. Electronic decisions require a series of “yes” or
“no” decisions. There is the potential for visas and permits to be
granted in error under an electronic system.
238
These risks would be managed by limiting automated decisions to
approvals in low-risk applications and requiring that a decision to
decline an application be referred to an immigration officer (in line
with the Australian approach). This would ensure appropriate
fairness in immigration decision-making. There would also need to
60
be provision to revoke visas granted in error. Careful consideration
would be needed as to what type of applications could use this route.
Cases where a substantial exercise of judgement is required would
not be suitable.
Option C – Provide for decision-making by third parties
239
The Immigration Act would enable decision-making by third parties.
This would enable third parties such as education providers and
employers to make immigration decisions, or aspects of them, in
some situations. As with electronic decision-making, its use would be
restricted to low-risk applications such as student permits and some
work permit types (for example, Talent Visas).
240
As with electronic decision-making this mechanism would not be
implemented immediately. Rather, the Immigration Act would enable
third-party decision-making proposals to be developed by the
government in the future.
How would third-party decision-making be used?
241
There are no immediate proposals to implement third-party decisionmaking. A future possibility is decision-making on the Talent Visas.
Employers could be accredited by the Department of Labour to make
high-value work permit decisions.
242
Accreditation would only be granted to employers who meet certain
standards and the Department of Labour would undertake
monitoring and audit activity to ensure that good decision-making
processes were being followed. Where standards were not being
met, employers could lose their ability to make immigration
decisions.
Benefits and costs
61
243
The primary benefit of this option is that it would enable the
legislation to allow for future changes to how immigration decisions
are made. There would be flow-on benefits to third parties if
immigration decisions could be made more quickly. It could improve
efficiency for the education industry and some New Zealand
employers and businesses, giving them a competitive advantage
over other countries. Improvements to the timeliness of decisionmaking would also enable the Department of Labour to focus on
more resource-intensive work (such as permanent residence
decisions).
244
The key disadvantage of third-party decision-making is the potential
threat to the integrity of the immigration system. It may raise
sovereignty issues if decision-making is delegated to nongovernment sources. For example, there may be risks around
employers seeking to serve the interests of their companies at the
expense of the wider New Zealand national interest.
61
245
There would need to be a robust process for determining which third
parties could make immigration decisions and the type of decisions
that they would be authorised to make. Clear parameters, reporting
and monitoring requirements attached to any third-party decisionmaking arrangements would also be required. Auditing of decisions
would help to ensure that integrity is maintained.
5.3 Key questions
1
Should legislation provide for decisions to be made electronically in the future?
2
Should legislation enable some decisions to be made by third parties such as
employers and education providers?
62
62
SECTION 6: EXCLUSION AND EXPULSION
Scope of section
6.1
What legislative provisions are required for exclusion from entry to New
Zealand?
6.2
What grounds and processes for expulsion should be established in the
legislation?
6.3
What penalties should apply following expulsion?
63
246
As discussed in Sections 1 and 3, the purpose of this review is to
ensure that the legislation enables New Zealand to both facilitate the
entry of people that New Zealand needs and effectively protect our
border. Sections 4 and 5 have focused on creating flexible and
efficient systems that facilitate the entry and stay of visitors and
migrants.
247
This section considers what legislative provisions are needed to set
limits on who may enter and remain in New Zealand. Setting such
limits both assists New Zealand to target the people that it needs,
and helps maintain our safety and security.
248
This section does not focus on entry or exit by New Zealand citizens,
or the exit of others with lawful authority to be in New Zealand. It
considers situations where non-citizens are denied entry or, if they
are already in New Zealand, that they be required to leave.
63
6.1
What legislative provisions are required for exclusion from entry
to New Zealand?
Status quo
249
Section 7 of the Immigration Act identifies grounds that make a
person ineligible to enter New Zealand (or ineligible to be exempted
from the requirement to hold a permit). These include criminal
convictions, previous removal or deportation, being a threat to public
safety and involvement in terrorism.
250
As well as legislative grounds for refusal to grant entry, there are
policy grounds. Entry can be refused on the basis of failure to meet
minimum entry requirements applied to all visas and permits (for
example, health or character requirements) and/or the specific policy
criteria for the visa or permit type.
251
Section 7 of the Immigration Act, character policy and health policy
all provide for entry to be granted despite someone meeting criteria
that would normally render them ineligible to enter. Waivers (called
“special directions”) may be issued in relation to section 7 of the
Immigration Act, and waivers may be made for health and character
policy requirements. Immigration officers are delegated to make
such decisions in most circumstances.
252
The factors used by immigration officers to determine whether a
special direction or a waiver is warranted in the circumstances
include the severity of the crime committed, the likely cost to New
Zealand of medical conditions and the strength of connection to New
Zealand (such as the applicant having immediate family in New
Zealand). Government immigration policy provides guidance on such
factors. Ultimately it requires a judgement to be made in each case.
The nature of the power is highly discretionary.
When may a special direction be issued?
253
A person has previously been removed from New Zealand for
overstaying their permit and is subject to a five-year ban. A special
direction is given allowing them to re-enter New Zealand before the
five-year ban is completed because they have a New Zealand partner
and now have a child who is a New Zealand citizen. The person now
meets residence policy, and the net benefit of allowing their entry is
considered to outweigh any risk around their early re-entry.
What works well?
254
64
Section 7 of the Immigration Act provides clear grounds for
to grant entry. These grounds represent the bottom line for
unacceptable to enter or remain in New Zealand. It is
mechanism for New Zealand to express its sovereign
Retaining a similar provision in new legislation is crucial.
refusal
who is
a key
power.
64
255
A discretionary ability to make exceptions is also a vital feature of
the current system. This allows health or character requirements to
be waived in those cases where it would be in New Zealand’s
interests to approve a person who didn’t meet the requirements.
What are the problems/opportunities?
256
This review provides an opportunity to strengthen and clarify
exclusion provisions. The current legislative grounds for refusal to
grant entry are not comprehensive, particularly because key health
and character requirements are outside legislation. Even with the
combination of current provisions in the Act and the supporting
policy, risks to New Zealanders’ interests have been identified. At the
same time, the legislation must be flexible enough to allow the entry
of individuals, where this desirable.
What do other countries do?
257
Both Canada and Australia have more comprehensive legislative
provisions for refusal to grant entry than New Zealand. Canada has
inadmissibility criteria which provide grounds for refusal to grant
entry and for expulsion. These grounds include security concerns,
human or international rights violations, criminality, health, financial
reasons, misrepresentation, non-compliance with their immigration
legislation, and having an inadmissible family member.
258
Australia has a universal visa requirement system and all visa
applicants must meet public interest criteria. These include health
and character provisions and national security concerns.
259
The United Kingdom’s (UK) legislation allows the Secretary of State
to make rules governing those who may enter or remain in the UK.
The rules set conditions that must be met by those without the right
of abode who wish to enter the UK. Those who do not meet
requirements may be refused entry. Entry clearance may also be
denied (or revoked) if false or misleading information was used in
the application, if relevant information was withheld, or if the
applicant’s exclusion from the UK would be conducive to the public
good.
Proposal
260
For the reasons noted above, the status quo is not considered
desirable. The approach outlined below more closely meets the
objectives of this review.
Include health and strengthened character requirements in
legislation
261
65
The legislative grounds for refusing entry would be strengthened by
including health and character requirements, as well as the existing
grounds in section 7 of the Immigration Act. Generic statements
would be included in the legislation, such as “must be of acceptable
standard of health and good character”. These requirements would
be supported by further detail in policy.
65
66
262
The generic statements would be supported by provisions allowing
the Minister of Immigration (or a delegated official) to make
exceptions. Exceptions could be considered where, for example, a
potential migrant was not of an acceptable standard of health, but
was of high value to New Zealand and able to reduce the health
costs to the taxpayer through medical insurance or private provision
of care.
263
The term “health” in immigration policy is used not only in reference
to the absence of disease and the protection of public health, but
also to ensure that non-citizens do not impose excessive costs
through disability. A person’s state of health should allow them to
undertake the activities for which they were granted entry.
264
Triggers likely to cause character concern would focus on the likely
negative impact on New Zealand of that person entering. Past or
likely future criminal behaviour is a primary trigger. Another example
would be the current policy provision that excludes a person who
would pose a risk to New Zealand’s international reputation. This
may arise from association with a regime that has committed war
crimes, crimes against humanity or gross human rights abuses.
265
There would also be provision to exclude people on the grounds of
connection to or membership of a particular group or regime, in
addition to exclusion on an individual basis. This recognises that the
need to view matters on a collective basis could, at times, outweigh
individual interests. For example, New Zealand has imposed travel
bans on members of governments and national representative sports
teams in support of internationally-agreed sanctions. While some
bans have been politically controversial, it is legitimate to use the
sovereign right to control entry in response to wider international
issues.
266
It would also be possible to modify the exclusion provisions that
relate to terrorism. For example, the terrorism provisions could be
expanded to include actively supporting or glorifying terrorism. They
could be aligned more closely with existing anti-terrorism legislation,
such as the Terrorism Suppression Act 2002, and international
efforts to suppress terrorism, such as those mandated by United
Nations’ resolutions. Cases of refusing entry on the basis of the
applicant’s political opinions have resulted in controversy and court
challenge on freedom of expression grounds in other jurisdictions.
Exclusion provisions would need to align with New Zealand’s
international protection obligations, as outlined in Section 14: New
Zealand’s role as an international citizen.
267
The current provision that allows exclusion where there is reason to
believe the person is likely to commit an offence against the Crimes
Act or the Misuse of Drugs Act could be expanded to other offences
of a similar gravity. For example, offences under the International
Crimes and International Criminal Court Act 2000 could be included.
66
268
An additional character criterion could be added to allow New
Zealand to exclude people on the basis of classified security
information that cannot be divulged because of its classification.
Such a criterion would be that the Director of Security recommended
that a person should not be granted a permit or a visa on the basis
of classified security information. Exclusion on this basis would
involve decision-making by the Minister of Immigration and a special
appeal process, outlined in Section 9: The use of classified
information.
Benefits and costs
269
Placing health and character requirements in the primary legislation
would provide stronger protection and send a stronger message
about the importance of these factors. It would be consistent with
the appropriate split between legislation, regulations and
immigration policy, discussed in Subsection 3.3. These requirements
could be considered so fundamental as to warrant parliamentary
scrutiny if they are to be changed in the future.
270
There are possible risks around character judgements and possible
challenges due to unjustifiable discrimination. However, the
proposed level of detail on character requirements provides for
transparent character assessments, while still having flexibility to
respond to unanticipated situations.
Alternative considered
271
A combined exclusion and expulsion provision, similar to the
Canadian inadmissibility provision, has been considered. The
perceived simplicity of this option is attractive. However, it would
require a high level of policy detail to support it, and to make
distinctions for different classes of individuals (for example, review
and appeal rights may differ depending on whether someone was
being refused entry or expelled). There is a risk of losing specificity
and accuracy if the provisions are combined.
272
Many of the potential benefits of this model could be achieved
through drafting. For example, the refusal to grant entry provision
could be adjacent to the expulsion provision in new legislation. For
these reasons, this option is not preferred.
6.1 Key question
1
Do you agree that health and character grounds for exclusion should be
included in legislation?
67
67
6.2
What grounds and processes for expulsion should be established
in the legislation?
273
This subsection considers the grounds and the processes that new
immigration legislation should establish to enable a non-New
Zealand citizen to be expelled from New Zealand. This section does
not discuss options for the expulsion of refugees, which are
discussed separately in Section 14: New Zealand’s role as an
international citizen.
What is expulsion?
274
Expulsion is a generic term that describes the current practices of
removal and deportation. Revocation of permits is also a key
element in the current expulsion system.
Status quo
275
Removal and deportation are the two key elements of the current
expulsion system. Revocation of permits is also an important
element in the system, as it either provides a basis for removal, or is
a consequence of deportation. Grounds for revocation, removal and
deportation are set out in various sections of the Immigration Act.
276
Residents are generally only liable for expulsion if they commit
immigration fraud, do not meet significant conditions of their
residence, or commit a serious criminal offence. Temporary permit
holders can be expelled for a wider range of offending and behaviour
than residents, as set out in table 4 below.
Table 4: Current expulsion system
Removal
•
•
A person in New Zealand unlawfully is obliged to leave. This includes:
•
those who stay beyond the validity of their permit, whether inadvertently or
deliberately (i.e. overstayers, including failed refugee claimants), and
•
those whose temporary or residence permits are revoked.
A person in New Zealand unlawfully is liable for removal and may be subject to a
removal order. A removal order can only be served 42 days after the person becomes
“unlawful”, to allow them to appeal. A removal order is in effect from the time it is
served until five years from the date of actual removal. A removal order can be
cancelled by an appropriately designated officer.
Deportation
•
Persons threatening national security and suspected terrorists may be deported.
While seldom needed, these provisions have been used.
•
Residence permit holders, or those exempt from holding a permit (mainly Australian
citizens) who are convicted of specified offences within 10 years of residence being
granted, may be deported depending on the seriousness of the offending, the number
of offences and the period of time they have been in New Zealand. These are the
grounds for deportation most commonly used.
68
68
Revocation
Temporary permits
•
Temporary permits may be revoked for any good (rational and sufficient) reason and
immigration officers have delegated authority to revoke temporary permits.
Residence permits
•
The Immigration Act allows for delegated immigration officers to revoke a residence
permit if it was granted as the result of administrative error and the error is
discovered while the person is still in the arrival hall. In all other cases, only the
Minister of Immigration has authority to revoke residence permits. Grounds for
revocation are:
•
that the permit was granted as the result of administrative error
•
that the permit was obtained through some form of fraud or deception, or
•
that a person has failed to meet the requirements imposed on their residence
permit (for example, an investor migrant might fail to maintain their investment
in New Zealand for the required period).
What works well?
277
The obligation on a person to leave New Zealand if they are here
unlawfully is transparent and unambiguous, as is their liability for
removal. These provisions send a clear message that non-citizens’
authority to be in New Zealand is conditional upon certain obligations
and responsibilities being met (in particular, maintaining a lawful
immigration status).
278
Flexibility around the grounds for revoking a temporary permit allows
New Zealand to have a high level of control over temporary entry. It
is consistent with the purpose of regulating entry, stay and removal
in New Zealand’s interests.
What are the problems/opportunities?
69
279
Expulsion provisions are fragmented – New Zealand’s expulsion
provisions are spread throughout the Immigration Act. There is less
clarity regarding liability for removal/deportation for residents
compared to temporary entrants. This undermines the principle of
understandable and accessible legislation.
280
Requiring a ministerial decision to initiate deportation and residence
revocation – This may be unnecessary where the grounds for
expulsion are clear and appropriate review and appeal mechanisms
exist. The expulsion criteria in the Immigration Act are agreed by
Parliament as unacceptable behaviour from a migrant that warrants
expulsion. The existence of an appeal process allows for exceptions
to be made. It may therefore be unnecessary for ministerial
involvement in all cases.
281
Delays in removing residents liable for expulsion – It can be difficult
to remove a resident even when grounds for expulsion are met,
because the process must be initiated by a ministerial decision and
69
there are multiple avenues of appeal. This undermines the ability of
New Zealand to regulate immigration in New Zealand’s interests and
maintain integrity in the immigration system.
282
The ministerial workload is also increasing. In 2004/05, the Minister
of Immigration signed 25 deportation orders and revoked eight
residence permits. The 2005/06 forecast is for 51 deportation orders
and 52 residence revocations. This increase is due to the recently
established data match between the Department of Labour and the
Department of Corrections and increased resource for permit fraud
investigation. While there are no projections beyond 2005/06, it is
anticipated that numbers will increase again, particularly if changes
proposed in Section 10: Compliance and enforcement are agreed.
283
Delays in executing a removal or deportation order because of
multiple decision points and subsequent avenues of review and
appeal undermine the principle of effective decision-making. In
particular, the permit revocation step unnecessarily creates delays.
284
Opportunity to speed up process through automatic liability for
expulsion – Under the Immigration Act, a resident who meets the
grounds for deportation is not automatically liable for expulsion. The
process first requires that the Department of Labour is made aware
of a conviction that could make the person liable for deportation.
Then the department investigates the case and must locate the
resident to conduct an interview regarding their situation. Full details
of the case must be submitted to the Minister of Immigration for a
decision on whether to make a deportation order. If the Minister
agrees, the deportation order must then be served on the resident.
It is only at this point that an appeal right is triggered.
285
In contrast, a person who is still in New Zealand after the expiry of
their temporary permit is obliged to leave the country and is
automatically liable for removal if they have not left or appealed
within 42 days of becoming unlawful. This review provides an
opportunity to expand the concept of automatic liability for expulsion
to all expulsion cases. This would reduce the number of steps, while
retaining appropriate appeal processes. This would be in line with the
principles of effective and efficient decision-making.
What do other countries do?
286
70
Grounds for expulsion – Australia and the UK’s grounds for expulsion
are broadly similar to New Zealand’s. Neither Australia nor the UK
has consolidated grounds for expulsion in their Acts. Common
grounds for expulsion include: provision of false information or
failure to disclose information; change in circumstances; breach of
visa/permit conditions; potential threat to the health, safety or good
order of the community (including terrorist threats); and criminal
conduct or associations. Australian legislation also includes potential
prejudice to Australia’s international relations and general character
grounds.
70
287
Canada’s expulsion provisions are included within a single
“inadmissibility” section, which provides for exclusion as well as
expulsion. The grounds include: security concerns, human or
international rights violations, criminality, health, financial reasons,
misrepresentation, non-compliance with the Immigration Act and
having an inadmissible family member.
288
Consolidation of expulsion provisions in legislation – Both Australia
and the UK spread expulsion provisions throughout the legislation
(Australia’s Migration Act 1958 and the UK’s seven Immigration
Acts). These expulsion provisions appear under the auspices of
grounds for revocation (cancellation), removal and deportation. As
noted above, Canada combines exclusion and expulsion provisions.
Proposal
289
For the reasons discussed above, the status quo does not meet the
objectives of efficient and effective decision-making or transparent
processes. The preferred approach is outlined below.
Amalgamated/streamlined expulsion provision
290
A new legislative provision on expulsion would:
•
extend the existing concept of automatic liability for removal to
deportation where an individual meets specified grounds
(automatic liability would not mean that the process must end in
expulsion, as exceptions and appeals would be possible)
•
remove mandatory ministerial involvement in deportation
decisions, while retaining the Minister of Immigration’s ability to
intervene
•
create a single set of expulsion provisions for temporary and
permanent permit holders
•
remove the separate initial step of permit revocation that exists
in the current system and include automatic permit revocation on
departure once all avenues of appeal have been exhausted
•
use the single term “expulsion”, as used in this discussion paper,
to refer to the procedures currently described as “removal” and
“deportation”, and
•
streamline review and appeals against expulsion. (This
component of the option is discussed separately in Section 7:
Access to review and appeal.)
Grounds for expulsion
291
71
The grounds for expulsion would consolidate the current grounds for
permit revocation, removal and deportation. The broad grounds for
expulsion would sit in legislation, with supporting detail located in
policy. The grounds would apply equally to temporary entrants and
residents and would include:
71
a) having gained a permit as a result of administrative error, where
the person has left the arrival hall 2
b) staying in New Zealand after the expiry of a permit
c) a conviction for obtaining a visa or permit through fraud or
misrepresentation
d) a finding by the Department of Labour that a person obtained
their visa or permit through fraud or misrepresentation, or that
their permit conditions have not been met (for example, working
unlawfully on a visitor’s permit)
e) cancellation of refugee status after this was obtained through
fraud or misrepresentation. (Cancellation is discussed in Section
14: New Zealand’s role as an international citizen.) The Refugee
Convention also provides for the expulsion of refugees in serious
cases that may come under expulsion grounds g) and h) below.
f)
citizenship deprivation due to residence fraud 3
g) a conviction for a serious criminal offence committed within up to
ten years of residence being granted, depending on the
seriousness of the offence, and
h) being a threat to national security, including a terrorist threat.
NOTE: Under grounds c), e), f) and g) above, the ability to defend
the initial charge would constitute an appeal on the facts against
liability for expulsion, as outlined below.
2
292
To ensure that the current flexibility around temporary permit
revocation is not lost under this model, the current ability to revoke
a temporary permit for any “rational and sufficient” reason would be
retained. Such reasons can include the grounds for exclusion from
entry that are discussed in Subsection 6.1 above, and where a
temporary entrant commits a crime. There is a significant body of
jurisprudence around this power that defines and limits it to what is
fair and reasonable.
293
There would be one opportunity for a review or appeal on the facts in
all cases except for expulsion on the grounds of a) or b) above. In
some instances, this would take place as part of a court conviction
process, in others, there may be an immigration-specific appeal on
the facts. In all cases, there would be a departmental or independent
humanitarian appeal. Options for review or appeal are discussed in
Section 7: Access to review and appeal.
If the error is discovered while the person is still in the arrival hall, the permit can be
automatically revoked. If no other permit is appropriate/warranted, the person would be refused
entry and subject to immediate turnaround (rather than enter into the deportation process).
3
Under s17 of the Citizenship Act 1977, a person who has become a citizen by grant may be
deprived of citizenship if it was procured by fraud, false representation, or wilful concealment of
relevant information, or where the grant is the result of an administrative error. It is only
citizenship deprivation on the basis of residence fraud that is relevant here.
72
72
Process for expulsion
294
The standard process for expulsion would follow the steps outlined in
Table 5 below. In all cases, there would be departmental or
ministerial discretion not to proceed, even where liability for
expulsion was established. This is consistent with current removal
and deportation arrangements.
Table 5: Process for expulsion
Step 1
Establish liability for
expulsion
If decision made not
to proceed with
expulsion, confirm
authority to remain
73
Step 2
Independent humanitarian
appeal or departmental
assessment
Step 3(a)
If appeal or assessment
unsuccessful, expulsion
proceeds
Step 3(b)
If appeal or assessment
successful, confirm
authority to remain
295
Step 1: Establish liability for expulsion – Where a person met any
one of the grounds outlined in paragraph 291 above, they would
become automatically liable for expulsion. They would be obliged to
leave New Zealand (as with the current removal legislation), or to
present to the Department of Labour for consideration as an
exception to policy. They may also be able to appeal against liability
on the facts, as discussed further in Section 7: Access to review and
appeal. (The expulsion provisions relating specifically to refugees are
discussed in Section 14: New Zealand’s role as an international
citizen.)
296
Step 2: Allow for independent humanitarian appeal or departmental
assessment – Once a person was liable for expulsion, an opportunity
for independent appeal or a departmental assessment for remaining
in New Zealand would be provided. Options for review and appeal at
this stage in the expulsion process are discussed in Section 7: Access
to review and appeal.
297
Step 3(a): If appeal or departmental assessment unsuccessful,
expulsion proceeds – Expulsion proceedings would be activated by
the service of an expulsion order. Any permit held would be
automatically revoked on departure from New Zealand. Automatic
permit revocation on departure would apply to those who depart
voluntarily as well as those who depart under an expulsion order.
(Current legislation already provides for automatic permit revocation
in deportation cases.)
73
298
Step 3(b): If appeal or assessment successful, ensure appropriate
authority to remain – In this scenario, no expulsion order would be
served and the person could remain in New Zealand provided they
had an appropriate authority to do so. In some cases, they may still
have a valid permit. In other cases, they would need to have a
permit granted. Granting permits to persons unlawfully in New
Zealand is discussed further in Subsection 10.2.
Possible detention pending expulsion
299
The current ability to detain people prior to expulsion, if deemed
necessary, would be retained (for example, the Department of
Labour may have reasonable grounds to believe that the person
would not depart voluntarily). Detention may only follow the issuing
of an expulsion order. There may be a need to vary the standard
process outlined in Table 5 above, to allow for detention as soon as
liability is established (that is, to serve an expulsion order prior to a
humanitarian appeal or assessment). In all cases, the reason for the
detention would need to be justified and be subject to a warrant of
commitment process within appropriate timeframes. (Detention
issues are discussed further in Section 12: Detention.)
The role of the Minister of Immigration
300
The Minister of Immigration would be less involved in expulsion
decisions than at present. While the Minister may still be involved
(for example, to halt the expulsion process in an exceptional
individual case), this would not be a requirement. The Minister could,
for example, consider involvement in sensitive or complex cases. A
process would need to be developed for referring complex or borderline cases to the Minister for decisions.
301
It could be appropriate for the Minister of Immigration to retain
involvement in relation to people assessed as being a threat to
national security (including terrorist threats).
Information for people liable for expulsion
302
74
People need be aware of what can make them liable for expulsion.
To communicate the provisions in the Immigration Act, this
information would be given at the time of visa or permit application
and approval. It would also be clear on the Immigration New Zealand
website. Where liability was established following a relevant
conviction or departmental investigation, the department would
inform the person of their liability and appeal rights.
74
How would this approach work in practice?
303
The Department of Labour discovers that a person had obtained their
residence permit by means of creating a false identity. This is
grounds for expulsion under the Immigration Act. The person
appeals on humanitarian grounds to an independent appeal authority
(discussed further in Sections 7 and 8). The appeal is dismissed. The
person is then expelled from New Zealand and their residence permit
is revoked on departure. This means that, throughout the appeal
period, they remained on a valid residence permit. There was no
need for ministerial involvement in this case.
304
A residence permit holder commits a serious crime after living in
New Zealand for two years and is sentenced to four years in prison.
This person is liable for expulsion under the Immigration Act. During
the person’s time in prison, they appeal against expulsion to an
independent appeal authority on humanitarian grounds. If the appeal
is dismissed, the person can be expelled immediately on release
from prison. Ministerial involvement is not required.
305
A person overstays the validity of their student permit. As under the
status quo, they are automatically liable for expulsion and must
leave. If they do not leave, they can be expelled without ministerial
involvement. Options for appeal rights in these cases are discussed
in Section 7: Access to review and appeal.
Benefits and costs
75
306
This approach builds on the strengths of the existing expulsion
system and reflects all of the proposed legislative principles outlined
in Section 3: Purpose and principles. Coupled with proposed changes
to associated review and appeal mechanisms, it would create a fairer
and more efficient system. This more streamlined approach supports
the principle of understandable and accessible legislation by making
the system clearer for potential users. It also removes possible
confusion over the terms “removal” and “deportation”, by using the
single term “expulsion” to cover any situation where someone is
expelled from New Zealand.
307
The approach builds on the successful model of automatic liability for
removal and extends this to all expulsion cases. Having automatic
liability for expulsion, once particular grounds have been met, is an
important message to communicate upfront. It strengthens the
integrity of the immigration system by reinforcing the need to
comply with immigration requirements.
75
4
308
In particular, this approach would streamline expulsion in cases
involving citizenship deprivation on the basis of residence fraud and
refugee status cancellation on the basis of fraud. Currently, in both
cases, the same fraud needs to be established in the citizenship and
refugee contexts and then in the residence revocation context. Each
step has appeal rights. The proposed model would allow the fraud to
be established once only, with single opportunities to appeal on the
facts and on humanitarian grounds.
309
This option contributes to a fair immigration system by maintaining
appeal avenues, the discretion not to expel and by not revoking the
permit until all avenues of appeal are exhausted. This flexibility
allows for the interests at stake to be recognised on a case-by-case
basis. It also removes the current need for ministerial involvement in
all residence revocation and deportation decisions.
310
Automatic liability could be seen as reducing the number of
opportunities to make a case against expulsion. However, fairness is
maintained by the appeal system proposed in Section 7: Access to
review and appeal and by not revoking the permit until departure.
311
The move to the single term “expulsion” could be seen as equating
brief overstaying in New Zealand with the serious crimes that
currently warrant the deportation of long-term residents. Using a
single term does not mean that there must be a single penalty
attached. Options for graduated penalties associated with expulsion
are discussed in Subsection 6.3 below, including differentiated ban
periods.
312
Concerns may be raised about the potential effect that the single
term “expulsion” could have on future re-entry into New Zealand and
other countries. Changing to the single term would not have any
effect on a person’s likelihood of being allowed to re-enter New
Zealand. Our exclusion provisions can be set to maintain distinctions
between the various grounds for expulsion. The existing discretion to
allow a person previously deported (or removed) from New Zealand
to re-enter if considered appropriate would be retained.
313
Other countries’ immigration legislation uses a range of terms for
expulsion 4 . New Zealand’s current exclusion mechanism disqualifies
any person deported from any other country at any time, with
“deported” being defined in the broadest “expulsion” sense. Likewise,
most other countries disqualify someone from entering if they have
ever been expelled from another country (regardless of whether this
was termed “removal” or “deportation”). As with New Zealand, most
other countries also have the ability to make exceptions on a caseby-case basis based on the facts of the expulsion, not the term used
to describe it.
For example, Australia has “removal” and “deportation”, the UK has “administrative removal” and
“deportation”, Canada has only “removal”, and Ireland and the United States have only
“deportation”.
76
76
314
Having liability for expulsion attached to the full spectrum of grounds
listed (from the low level of administrative error to the more serious
“threat to national security”) may seem unreasonable for those at
the lesser end of the scale. However, as discussed above, there
would be flexibility in the system not to proceed with expulsion or to
differentiate the subsequent effects of it.
6.2 Key questions
1
Do you agree that expulsion provisions should be streamlined by extending
automatic liability for expulsion from unlawful stay in New Zealand to all
grounds for expulsion?
2
Would a single term “expulsion” help create more understandable legislation?
3
Under the preferred option, the Minister of Immigration would have a reduced
role in making expulsion decisions. Do you agree with this approach?
77
77
6.3
What penalties should apply following expulsion?
315
This subsection considers what the consequences of expulsion should
be for the person being expelled from New Zealand.
Status quo
316
The current penalty for removal is a five-year ban on returning to
New Zealand. If a person is deported there is a permanent ban. In
the case of a removal, an immigration officer can lift the ban if a new
application appears to warrant this. In the case of deportation,
senior officials have delegated power to issue a special direction
allowing a person to return.
What works well?
317
The current system enables people to be treated differently,
depending on the reason for their expulsion and the seriousness of
any offending. This approach is consistent with the principle of
fairness in the immigration system.
What are the problems/opportunities?
318
If the proposal in Subsection 6.2 above is agreed, the single term
“expulsion” would be used to describe processes now known as
“removal” and “deportation”. Using a single term does not mean that
a single penalty is required. The reasons for expulsion vary in
seriousness, and it is fair that these are matched by proportionate
penalties.
319
The incentives created by re-entry bans are a further issue. Under
the current system, the ban period starts from the date on which the
removal or deportation order was served and is unaffected by any
attempt to return during the validity of their removal order. This
means there is no penalty for attempting to re-enter prior to the
completion of a ban.
What do other countries do?
78
320
All of New Zealand’s peer countries take a graduated approach to
expulsion penalties.
321
Australia draws a distinction in the penalties between removal and
deportation. Removal can result in a permanent ban (depending on
the circumstances surrounding removal). At the lower end of the
scale, people who overstay in Australia by more than 28 days, and
are either removed or leave voluntarily, are excluded for three years.
Criminal deportees, including residents, are banned from Australia
permanently.
322
In the UK, administrative removal leads to a short-term ban on reentry and is applied to people in the UK unlawfully or who have
breached the conditions of their stay. Deportation may be used
where the Secretary of State deems it to be conducive to the public
good. A deportation order may be revoked once the person has left
78
the UK, but must be in force for at least three years, unless there
are “most exceptional circumstances”.
323
Canada has three types of expulsion. A departure order does not ban
a person from Canada, provided they leave within 30 days. An
exclusion order bans a person from returning to Canada for one year
in most cases, or two years if the order was made on the grounds of
misrepresentation. A deportation order means that authorisation is
required before the person may ever return to Canada again. The
type of order given depends on the grounds for expulsion and is
prescribed in regulations.
Proposal
324
If the changes discussed in Subsection 6.2 are agreed, the status
quo would not be workable. The preferred approach, outlined below,
draws on the principles of the status quo, while providing more
fairness through more appropriate penalties that reflect the degree
of offending.
Differentiated ban periods
325
A system of differentiated bans would build on the current practice of
applying different penalties based on the reasons a person was
expelled from New Zealand. The graduated penalties outlined in
Table 6 below arguably provide fairness through penalties that vary
in proportion to the seriousness of the wrong-doing.
Table 6: Expulsion penalties and circumstances when they would apply
No ban
•
Voluntary departure after any period of unlawful stay in New Zealand.
Two-year ban
•
Expulsion after staying in New Zealand unlawfully for one year or less, for the first
time.
Five-year ban
•
Expulsion after staying in New Zealand unlawfully for one year or less, on a second or
subsequent occasion.
•
Expulsion after staying in New Zealand unlawfully for longer than one year.
•
Expulsion on the basis of not meeting temporary or residence permit conditions.
Permanent ban
•
Expulsion on the basis of criminal offending, permit or identity fraud, or being a
security threat.
326
79
The circumstances when each ban level applies would need to align
with the grounds for expulsion outlined in Subsection 6.2 above.
Exceptions could continue to be made on a case-by-case basis. A
power to waive or reduce the ban period would be created for the
Minister of Immigration (and could be delegated).
79
327
Any attempts, successful or otherwise, to return to New Zealand
prior to the end of the two- and five-year bans should incur a
penalty. It is proposed that the ban period be re-started from the
date of an unsuccessful attempt to re-enter New Zealand, or from
the date of subsequent expulsion.
Benefits and costs
328
This option would enhance the flexibility to treat people differently,
depending on the reason for their expulsion and the seriousness of
any offending. The proposed non-ban period and two-year ban
provide for differentiation in the treatment of people in New Zealand
unlawfully. Those who leave quickly and voluntarily are not subject
to a ban, while those who wait to be expelled are. The longer an
overstayer remains in New Zealand, the longer the ban. This
graduated approach may provide incentives for early and voluntary
departures, reducing the need for compliance action. Varying levels
of penalties are also consistent with the principle of fairness in the
immigration system.
329
The reduced penalties for people who leave voluntarily after more
than a year in New Zealand unlawfully would provide disincentives
for people to stay in New Zealand unlawfully for long periods, or wait
until they are located by an immigration officer. Restarting the ban
period for a person who enters or attempts to re-enter New Zealand
prior to the completion of their ban period would provide a strong
incentive not to make such attempts. This would assist in
maintaining integrity in the immigration system.
Alternative considered
330
A further option is to apply a permanent ban on re-entry into New
Zealand to anyone who has been expelled. A ministerial waiver
provision would be retained to allow the ban to be waived if
necessary or desirable. This option would be a firm response to those
who fail to comply with the obligations of their permit when they
enter New Zealand. However, a permanent ban on re-entry could
also create a perverse incentive on those already in the country
unlawfully or undertaking prohibited activities. It could encourage
them to seek to remain undetected for as long as possible because
they know they will never get a chance to return to New Zealand if
expelled. For these reasons, it is not considered to be a desirable
option for the future.
6.3 Key question
1
Do you agree that there should be differentiated penalties for expulsion as
outlined, depending on the seriousness of the reason for expulsion?
80
80
SECTION 7: ACCESS TO REVIEW AND APPEAL
Scope of section
7.1
What avenues of review or appeal should there be for decisions on
temporary entry or residence?
7.1.1
7.2
What role should an independent appeal authority have in regard to
appeals against residence decisions?
What avenues of review or appeal should there be for expulsion decisions?
7.2.1
What test should an independent appeal authority apply when
considering an appeal against expulsion?
331
Review and appeal provide important mechanisms for ensuring the
government is held accountable for the decisions it makes and the
quality of those decisions. High-quality decision-making helps build
New Zealand’s reputation as an attractive migrant destination.
332
Any system of review or appeal must allow the government to
ensure that the immigration system works in New Zealand’s
interests, as discussed in Section 3: Purpose and principles. It is in
New Zealand’s interests for the government to be able to both
choose who may travel to, enter and stay in the country, and
recognise particular individual interests (for example, where human
rights obligations are involved).
333
This section discusses two broad mechanisms for the review of
decisions, based on the interests involved:
a) Internal review – A person may complain to, or seek a review of
a decision from, the Department of Labour. The grounds for
review are set out in legislation and are generally the same as
the original decision-making criteria. Internal review provides a
mechanism for ensuring that the Department of Labour delivers
the immigration outcomes that the government determines are
in New Zealand’s interests.
b) Independent appeal – A person may appeal to an independent
statutory appeal authority. The grounds for appeal are set out in
legislation and may be the same as, or broader than, the original
decision-making criteria. Independent appeal provides a
mechanism for ensuring individual rights are upheld where
appropriate.
334
81
This section does not discuss changes to the role of the Ombudsmen
or judicial review, which are additional avenues of review available in
some cases. Access to internal review and independent appeal are,
however, likely to minimise complaints to the Ombudsmen and the
need for judicial review, which can be lengthy and expensive.
Appeals against refugee/protection declines are discussed in Section
14: New Zealand’s role as an international citizen.
81
The role of the Ombudsmen
335
The Ombudsmen can inquire into complaints raised against the
Department of Labour. They are independent review authorities and
are accountable to Parliament, not the government. The Ombudsmen
will generally consider investigating a complaint only after there has
been an attempt to resolve the matter with the Department of
Labour. They do not investigate the independent appeal authorities
and will generally not investigate if there is an independent appeal
avenue available to an applicant.
The role of judicial review
336
82
Under the Immigration Act, any person can seek judicial review of an
immigration decision (initial decision or appeal) within three months
of the decision. Some exceptions are specified in legislation, for
example, offshore visa applicants cannot seek judicial review.
Judicial review focuses on correct processes and procedures, rather
than the substance of the decision.
82
7.1
What avenues of review or appeal should there be for decisions
on temporary entry or residence?
337
This subsection considers who should have access to review of a
decision to decline an application for temporary entry or residence. It
considers whether this should be an internal review or the right to
appeal to an independent appeal body.
Status quo
338
•
declined temporary entry visas offshore
•
refused entry at the border, or
•
declined further
unlawfully.
permits
when
they
are
in
New
Zealand
339
The current system gives a more substantial right of appeal to
declined residence applicants than temporary entry applicants. This
model assumes that there are greater interests (for New Zealand
and the applicant) attached to residence applicants because there
are greater rights attached to residence.
340
In addition to the Ombudsmen and judicial review provisions noted
above:
341
83
There are currently no internal review or independent appeal rights
for applicants who are:
•
declined temporary entry applicants onshore may seek internal
review, as long as they apply while still holding a valid permit
•
declined residence applicants may appeal to an independent
appeal authority, the Residence Review Board. (Skilled Migrant
and Investor Category applicants may only appeal if their
application is declined following an “invitation to apply”, not
following an “expression of interest”), and
•
the Minister of Immigration may intervene at any stage to grant a
permit, but is not obliged to do so.
In 2004/05, 61 percent of all residence applications decided were
lodged onshore. These accounted for 94 percent of approvals. 39
percent of residence applications decided were lodged offshore and
accounted for 70 percent of declines.
83
Table 7: Numbers of temporary and residence decisions and appeals
2002/03
2003/04
2004/05
30,313 (8% of
total decisions)
29,426 (7% of
total decisions)
25,411 (6% of
total decisions)
Complaints to the Ombudsmen**
216
176
164
Total
residence
declined
6,711 (12% of
total decisions)
8,695 (18% of
total decisions)
6,160 (11% of
total decisions)
Residence Review Board – appeals
lodged
530
514
408
Residence Review Board – appeals
decided
309
410
418
Residence Review Board – appeals
allowed ***
98
(32%
of
total decisions)
142 (35% of
total decisions)
137 (33% of
total decisions)
Judicial
declines
9
11
13
2,786
2,792
4,052
Total
temporary
declined*
review
applications
applications
of
Requests to the
Immigration****
*
entry/stay
Minister
of
Numbers of temporary permit reconsiderations are not collected.
**
Numbers of complaints upheld are not collected, as most complaints are simply “resolved”.
***
Includes reversal of original decision and referral back to Department of Labour for reassessment only.
**** Numbers of approvals by the Minister of Immigration are not collected.
What works well?
84
342
The current review and appeal arrangements generally reflect the
interests at stake. These arrangements allow the government to be
accountable to New Zealand for temporary immigration flows that
meet New Zealand’s needs, with little accountability to individual
temporary applicants. They ensure greater accountability to the
individual in the case of residence decisions where individual
interests are arguably greater than the interests of temporary
applicants.
343
It is considered appropriate for certain applicants to have no formal
review or appeal rights where the decision is essentially about
making an exception to the normal requirements of the Immigration
Act and where a temporary visa application is declined offshore. No
changes are proposed to the current arrangements that give no
internal review or independent appeal rights for persons declined
temporary entry visas offshore, refused entry at the border, or
declined when they are in New Zealand unlawfully. This system is
working effectively.
344
The current internal review arrangements for onshore temporary
entry applicants are also considered to be appropriate, based on the
interests at stake. Internal review of temporary permit declines
provides a fair and efficient mechanism for allowing a person to
84
challenge what are highly discretionary decisions. No options are
proposed for change to onshore temporary entry review provisions.
345
346
Allowing declined residence applicants an independent appeal can be
justified on the basis that:
•
residence gives individuals greater rights in New Zealand and
residents can ultimately apply for citizenship, and
•
residence applicants are investing significantly more in the
application process (higher fees, and health and character check
costs in all cases) and can reasonably expect a greater avenue of
review.
The independent Residence Review Board provides a robust
mechanism for ensuring the Department of Labour’s residence
decision-making is fair and aligned with government residence
policy. It allows expertise to be developed in government residence
policy and relevant jurisprudence. The review provides a reliable
source of quality control for the Department of Labour (in respect of
residence decline decisions only). It also helps keep the numbers of
judicial review and complaints to the Ombudsmen low (see Table 7).
What are the problems/opportunities?
85
347
While the current arrangements for residence appeals appear to
work well, the Immigration Act review presents an opportunity to
question whether they appropriately recognise New Zealand’s and
the individual’s interests. Arguably, the government should have the
right to decline residence applicants, without an independent
authority overturning that decision. This is the principle behind the
new Skilled Migrant Category, which limits the ability of applicants to
appeal to an independent authority to those who are “invited to
apply”, not those refused at the “expression of interest” stage. This
strongly emphasises New Zealand’s right to choose the people who
become residents.
348
As an alternative to removing independent residence appeals
altogether, there is an opportunity to consider limiting the kinds of
applicants who have access to independent appeal. For example,
access to independent appeal could be limited to persons based
onshore and/or persons with a New Zealand sponsor.
349
There is also an opportunity to consider what role the Minister of
Immigration should play in considering personal representations
once a residence application has been declined. As noted in Table 7
above and discussed in Section 5: Decision-making, requests to the
Minister of Immigration are disproportionate to the number of
appeals being lodged through formal channels.
85
What do other countries do?
350
Australia, Canada and the UK all link some avenues of independent
appeal with sponsorship. Their approaches are outlined below.
351
Australia allows all onshore visa applicants (temporary and
residence) a right of appeal to an independent immigration tribunal.
If an applicant is offshore, an onshore Australian sponsor, such as an
employer or family member, may appeal against the decision.
352
Canada only allows appeals to an independent board where they are
made by the sponsor of the application for residence through the
family class. All other declined applicants (whether onshore or
offshore, temporary or residence applicants) may appeal to the
Federal Court, with leave.
353
The UK has recently decided to remove all appeal rights for persons
seeking to study and work in the UK. The only persons able to appeal
to an independent immigration tribunal against declined immigration
decisions will be those with close family sponsors.
354
Ireland provides only for internal review of immigration decisions
(other than judicial review and complaints to the Ombudsmen).
Ireland is currently reviewing its immigration legislation and has
noted the following in its publicly released discussion paper:
355
“…the nature of immigration is that it is ultimately a matter for the
discretion of the Minister of Immigration whether or not a nonnational is permitted to enter or be in the State. In such
circumstances, appeal to an independent body would be
inappropriate. It is likely that the approach in the Bill will be to
provide in general for internal review.”
356
In Australia, Canada and the UK, as in New Zealand, a person may
make a special request to the Minister of Immigration. In Australia,
however, the person must exhaust all other avenues before the
Minister will consider the case.
Proposal
357
86
Three options, including the status quo, are presented. Each option
gives a different weighting to the interests at stake. Option A (the
status quo) is based on the principle that all residence applicants
have an interest at stake that warrants access to independent
appeal. Option B is based on the principle that residence decisions
should ultimately be at the discretion of the government. Option C is
based on the principle that only some residence applicants have
particular interests at stake that warrant access to independent
appeal. At this stage, Option C is considered likely to best meet the
objectives of the Immigration Act review and the principles of
fairness, effective decision-making, efficiency and understandable
and accessible legislation, and is preferred.
86
358
Under all three options, complaints to the Ombudsmen may be made
about departmental decision-making and judicial review is available,
except in the case of offshore visa declines.
The role of the Minister of Immigration
359
For all options, the new legislation would make a presumption that
the applicant must make an application to the Department of Labour
and seek review or appeal through formal channels. The Minister of
Immigration would still have the power to intervene in any case, but
under normal circumstances would not do so unless all other
avenues were exhausted, and only if the case warranted such
intervention. This proposal complements the proposal in Section 5:
Decision-making to allow senior immigration officers to make
residence decisions as exceptions to policy. Together, they are likely
to help reduce the role of the Minister to exceptional cases and
reduce the ministerial workload.
Option A – Status quo
360
Independent appeal is available for all declined residence applicants
(onshore and offshore).
Benefits and costs
361
As discussed above, these arrangements ensure accountability to the
individual in the case of residence decisions. The independent
Residence Review Board provides a robust mechanism for ensuring
the Department of Labour’s residence decision-making is fair and in
line with government residence policy. This option may not,
however, be sufficiently weighted in New Zealand’s interests because
it does not differentiate between applicants on the basis of any
connection to New Zealand.
Option B – Internal review for declined residence decisions
362
Internal review, but no independent appeal rights, would be available
for declined residence applicants (offshore and onshore).
Benefits and costs
87
363
This option would ensure government’s accountability for overall
immigration flows was to New Zealand as a whole, rather than to
individual applicants. Internal review of all residence decision-making
would provide a check on quality and consistency. Over time, an
internal review mechanism could assist the development of
guidelines for the consistent use of discretion in residence decisionmaking. It could support the option presented in Section 5: Decisionmaking to delegate discretionary residence decision-making to the
Department of Labour.
364
Unlike the current Residence Review Board, a departmental review
process would be subject to complaints to the Ombudsmen, which
87
may increase as a result. As this option provides for no independent
appeal against decisions on residence applications, it may not be as
robust as the status quo or Option C below. There would also be
establishment and ongoing costs for the Department of Labour.
How would internal review work?
365
Under Option B, legislation would provide for internal review of both
temporary and residence decisions. The detail of how internal review
would work would be established by the Chief Executive or within a
framework set by legislation.
366
In all cases, the reviewer would be senior to the original decisionmaker and, in the case of residence reviews, would be part of a
coordinated internal review mechanism. In all cases, the person
could present written reasons as to why the permit should have been
granted. The internal reviewer would consider whether the process
was adequate, whether the decision was correct on the facts, or
whether there should be an exception to policy.
Option C – Independent appeal for declined residence applicants
onshore or offshore with sponsor
367
Internal review (but no independent appeal) would be available for
declined residence applicants who are offshore with no New Zealand
sponsor.
368
Independent appeal would be available for:
369
•
declined residence applicants onshore, and
•
declined residence applicants offshore where the appeal was
lodged by the applicant’s proposed employer or family sponsor.
Under this option, “sponsor” refers to a New Zealand resident or
citizen who is prepared to support the declined applicant. Further
work would need to be undertaken to define in more detail
sponsorship requirements in this context. This option does not,
however, refer to ongoing sponsorship requirements, which are
discussed in Section 13: The role of third parties.
Benefits and costs
88
370
This option retains a role for an independent check on the
Department of Labour’s immigration decision-making, but reduces it
to those residence applicants who are in New Zealand or who have a
sponsor. It would signal, in a similar way to Australia’s appeal policy,
that there needs to be sufficient interest at stake for a person to
challenge the Department of Labour’s decision to decline residence.
A New Zealand sponsor clearly indicates that there is a connection to
New Zealand and that there are New Zealand interests at stake.
371
This option would establish an appropriate level of fairness and
would meet the objective of ensuring that New Zealand’s interests
are protected and advanced. In combination with the proposal to
88
create a single immigration and refugee tribunal (discussed in
Section 8: The independent appeal bodies), this option would also
support more effective and efficient decision-making.
372
This option could encourage people to come onshore on a temporary
permit to lodge residence applications. Such encouragement could
stimulate better settlement outcomes due to potential residence
applicants spending time in New Zealand before lodging an
application.
373
In 2004/05, 46 percent of residence appeals were
applicants and 25 percent of residence appeals were
applicants. Offshore family stream applicants and
stream applicants are likely to be able to find a
sponsor.
374
There may, however, be a reduction in the number of independent
appeals against residence decisions by offshore self-employed or
business investor applicants who are unlikely to have a sponsor.
These applicants would still have access to internal review. Declined
business applicants accounted for 25 percent of residence appeals in
2004/05. This issue could be addressed by carefully considering who
could be recognised as an acceptable New Zealand sponsor.
375
The option, discussed in Section 5: Decision-making, to delegate the
power to make exceptions to residence policy to the Department of
Labour is also likely to reduce the flow of residence appeals, as
exceptions could be considered at an earlier stage.
376
This option would sit best with the proposal to establish a single
independent appeals tribunal, as discussed in Section 8: The
independent appeal bodies, with different streams of appeals. The
single tribunal would ensure that a relatively light flow of residence
appeals could be viable. The skills and expertise required for
independent residence appeals could be sustained by a range of
members who also worked on other streams of appeals.
family stream
skilled stream
some skilled
New Zealand
Alternatives considered
89
377
The review considered a further option that would extend
independent appeal rights to declined temporary work permit
applicants, where they had been working in New Zealand lawfully for
at least two years. This alternative was considered on the basis that
long-term work permit holders may have similar interests to
residence applicants.
378
This approach would open independent appeal rights up to a
significant number of people, especially if students, who may work
part-time, were included. It could create significant barriers to
removal and impede the government’s ability to regulate both
immigration in-flows and removals in New Zealand’s interests. It
would not be in New Zealand’s interests to grant independent appeal
rights where the government has a high level of discretion regarding
a person’s stay in New Zealand.
89
379
A better outcome may be achieved by delegating discretion
regarding residence policy to senior immigration officers, as
discussed in Section 5: Decision-making. This could allow the
department to make flexible residence decisions for temporary
permit holders who have been in New Zealand a long time, but
otherwise do not meet detailed residence policy criteria.
7.1 Key questions
1
2
7.1.1
Which residence applicants should have access to independent appeal?
•
All?
•
None?
•
Onshore applicants and offshore applicants with a New Zealand
sponsor?
Do you agree that, in the normal circumstances, a person should exhaust
all formal avenues of appeal before making a request to the Minister of
Immigration?
What role should an independent appeal authority have in regard to
appeals against residence decisions?
380
This subsection considers what role an independent appeal authority
should have when considering an appeal against a residence
decision. This discussion is only relevant if it is decided that some or
all declined residence applicants should have access to an
independent appeal.
Status quo
381
The Residence Review Board currently has the power to uphold a
decision, reverse an incorrect decision, refer a decision back to the
Department of Labour for reconsideration, or recommend
consideration by the Minister of Immigration as an exception to
policy. In essence, the Residence Review Board has two roles:
a) to ensure the Department of Labour’s initial decision was correct
in terms of government residence policy, and, if so,
b) to determine whether there are any grounds for an exception to
policy.
90
382
The Residence Review Board does not have the power to make an
exception to policy. Exceptions must be made by the Minister of
Immigration. In 2004/05, the Residence Review Board recommended
consideration by the Minister of Immigration as an exception to
policy in 10 percent of decisions made, or 44 cases.
383
There are no legislative guidelines for the Residence Review Board
on recommending exceptions to policy. When assessing whether or
not the person’s circumstances warrant consideration by the Minister
90
of Immigration, the Board simply weighs up the reasons for and
against.
What works well?
384
The core function of the Residence Review Board to determine
whether the initial decision was correct or not, and to be able to
refer a decision back to the Department of Labour for
reconsideration, provides an important quality assurance check for
the department and the applicant. Under the status quo, it is
appropriate for the Residence Review Board to refer consideration of
exceptions to residence policy to the Minister of Immigration, as only
the Minister has the power to make exceptions to residence policy.
What are the problems/opportunities?
385
As discussed in Section 5: Decision-making, the Immigration Act
review presents an opportunity to establish clarity around who
should have the power to grant a visa or permit as an exception to
policy – the Department of Labour, an independent body, such as
the Residence Review Board, or the Minister of Immigration.
What do other countries/authorities do?
386
In Australia, the Migration Review Tribunal (MRT) considers only
whether the decision was correct or incorrect. Only the Minister of
Immigration may make an exception to policy.
387
In Canada, only family class applicants can appeal to an independent
board. The board can make an exception to policy if, taking account
of the best interests of a child, sufficient humanitarian and
compassionate considerations exist.
388
In the UK, the only avenue for appeal against immigration declines is
for family applicants. The appeal may be brought on grounds that
the decision was incorrect and/or unlawful under the Race Relations
Act, Human Rights Act or Refugee Convention.
389
Other comparisons in New Zealand include:
•
the Refugee Status Appeals Authority determines whether or not
a person is a refugee, but makes no other assessment regarding
special circumstances or immigration status, and
•
the Removal Review Authority considers only special
circumstances and does not review a departmental decision. It
makes a decision regarding what type of permit a person should
be granted, if any, and then refers the case to an immigration
officer for action.
Proposal
91
390
Several options have been considered, including the status quo. At
this stage, alternative options for change are not considered optimal,
and the status quo is preferred.
391
The Residence Review Board (or equivalent independent authority)
would continue to have the power to reverse an incorrect decision, or
91
refer a decision back to the Department of Labour for reconsideration
if due process has not been followed. It could continue to
recommend consideration by the Minister of Immigration as an
exception to policy.
Benefits and costs
392
The status quo would continue to allow the Minister of Immigration
to consider exceptions to policy where the independent authority
considers that this is warranted in the circumstances. It is an
effective mechanism and does not have any significant problems. It
complements the proposal set out in Subsection 7.1 above to reduce
the role of the Minister of Immigration to involvement in exceptional
cases only.
Alternatives considered
393
92
The following two alternatives have been considered that are not
considered optimal:
•
the independent authority refers possible exceptions to residence
policy to the Department of Labour for consideration, or
•
the independent authority makes decisions on exceptions to
policy itself.
394
The first alternative was considered in light of the option presented
in Section 5: Decision-making to allow senior immigration officers to
make exceptions to residence policy. Given that the department
would have already had an opportunity to consider an exception to
policy prior to the appeal being made, it is likely to be more efficient
and effective for the Residence Review Board to escalate any further
consideration of an exception to the Minister of Immigration.
395
The second alternative would give the Residence Review Board the
power to grant a visa or permit as an exception to policy without
referral to the Minister of Immigration or the Department of Labour.
This would not be a discretionary decision, but would need the
application of a new “exceptions” test.
396
It is not desirable for an independent authority to decide what is
appropriate for New Zealand (that is, essentially extending existing
residence policy). This is a function that should sit with the executive
government. The Department of Labour is directed by the Minister of
Immigration in its decision-making – an independent authority is
not. By setting out a test for exceptional circumstances, this
alternative would effectively establish an additional humanitarian
stream.
92
7.1.1 Key question
1
93
With respect to residence appeals, do you agree that that Residence
Review Board (or equivalent independent authority) should refer possible
exceptions to residence policy back to the Minister of Immigration?
93
7.2
What avenues of review or appeal should there be for expulsion
decisions?
397
This subsection considers who should have access to review of a
decision to expel them from New Zealand. It considers whether this
should be an internal review or the right to appeal to an independent
body. This section discusses all decisions to expel as set out in
Section 6: Exclusion and expulsion.
Status quo
398
399
94
Any person who becomes liable for removal or deportation, or has
their residence permit revoked, has at least one avenue of appeal in
addition to a review by the Ombudsmen or a judicial review. Current
provisions allow for both appeals on the facts (that is, liability for
permit revocation) and appeals on humanitarian grounds (that is,
where there are exceptional circumstances that should allow an
individual to stay):
•
A temporary entrant unlawfully in New Zealand has the right to
an independent appeal against removal to the Removal Review
Authority (on humanitarian grounds). They may also appeal to
the Residence Review Board against any declined residence
application before they become unlawful (on the facts and as
exceptions to policy).
•
A refugee whose status is found by the Department of Labour to
have been falsely obtained may appeal against that finding to the
Refugee Status Appeals Authority (on the facts). If they have
citizenship, they may appeal against citizenship deprivation to the
High Court (on the facts). They may then appeal again to the
High Court (on the facts) and to the Deportation Review Tribunal
(on humanitarian grounds) against residence revocation.
•
A person whose residence permit is revoked may appeal to the
High Court (on the facts) and to the Deportation Review Tribunal
(on humanitarian grounds). Where relevant, they may also
appeal against citizenship deprivation to the High Court (on the
facts).
•
A resident who is convicted of a serious criminal offence may
appeal against deportation to the Deportation Review Tribunal
(on humanitarian grounds).
•
A resident whose deportation is ordered on the basis of their
being a suspected terrorist may appeal to the High Court against
this decision (on the facts).
Prior to all removals, an immigration officer assesses the case to
ensure that New Zealand maintains its obligations under the
Convention Against Torture, the Refugee Convention, the
International Covenant on Civil and Political Rights and the UN
Convention on the Rights of the Child.
94
Table 8: Appeals against expulsion and numbers expelled
2002/03
2003/04
2004/05
Removal Review Authority – appeals lodged
475
415
410
Removal Review Authority – appeals decided
425
391
300
Removal Review Authority – appeals allowed
81 (19%)
40 (10%)
52 (17%)
Actual numbers of removals (failed
status, overstayers, residence revoked)
738
1,207
1,252
Number of residence revocations
11
4
8
Number of deportations ordered
22
13
25
Deportation Review Tribunal (against residence
revocation and deportation) – appeals lodged
31
25
50
Deportation Review Tribunal – appeals allowed
1
4
3
Actual numbers of deportations
5
5
14
refugee
Table 9: Projected numbers of residence revocations and deportations
2005/06
Projected number of residence revocations
52
Projected number of deportations ordered
51
What works well?
400
New Zealand’s system of independent appeals authorities, while
complex, is generally considered to be fair to the individual. In
comparison to Australia and Canada, it also results in significantly
lower levels of judicial review. New Zealand’s independent appeal
mechanisms are considered vital to maintaining low numbers of
judicial reviews.
What are the problems/opportunities?
401
95
In contrast to the appeals system for temporary and residence
decisions, the appeals system against expulsion is complex and
inefficient. Any person liable for expulsion may have access to
multiple avenues of appeal to different authorities, the courts and
the Minister of Immigration. They can also appeal to the
Ombudsmen and request a judicial review. This can create years of
delays in reaching a final decision in some cases. Such delays
generally decrease the justification for expelling the person due to
humanitarian considerations and undermine New Zealand’s ability to
regulate immigration.
95
402
As set out in Table 8 above, the low number of actual deportations
indicates that the current system is not effective. It does not allow
the government to make decisions on who remains in New Zealand
in the best interests of the country.
403
Small numbers of lengthy delays can be expensive for the taxpayer.
Increased resources in fraud and investigation and better
information-sharing with the Department of Corrections mean
identified cases of residence fraud and serious criminal offending by
new residents are forecast to increase. The time and resources spent
by the Department of Labour in resolving these cases is also likely to
increase.
404
The Immigration Act review presents an opportunity to question
whether the system for appeals against expulsion appropriately
recognises New Zealand’s and the individual’s interests. For
example, there is an opportunity to consider whether government
should have the right to expel some temporary entrants unlawfully in
New Zealand without an independent authority overturning that
decision.
What do other countries do?
405
In Australia, persons whose visas are cancelled or who are subject to
a deportation order may generally appeal to an independent tribunal.
The tribunals assess the case according to the law and policy on the
matter – they do not consider humanitarian circumstances as in New
Zealand. The person must go to the Minister of Immigration to
receive a humanitarian assessment as an exception to law or policy.
406
In Canada, a person may appeal to an independent board against a
removal order. The board can allow an appeal that was wrong in fact
or law, or where it is in the best interests of a child. A person may
also apply to Citizenship and Immigration Canada (CIC) for a preremoval risk assessment on the basis of risk of persecution, torture,
or cruel or unusual treatment or punishment in the country they may
return to. In addition, a person may apply to CIC for permission to
stay on humanitarian grounds.
407
In the UK, a person may appeal against removal, except where their
exclusion is in the interests of national security or the UK’s
international relations. Any person making an asylum or human
rights claim may appeal.
Proposal
408
96
For the reasons discussed above, the status quo is not considered to
be optimal for the future. Appeals on the facts and appeals on
humanitarian grounds are discussed separately below. The options
discussed would build on Option B in Section 6: Exclusion and
expulsion to streamline initial decisions to expel and to revoke
residence only on departure from New Zealand.
96
409
The right to request a review by the Ombudsmen or to seek judicial
review would remain in all cases.
The role of the Minister of Immigration
410
Under all of the options set out below, as discussed in Subsection 7.1
above, the new legislation would make a presumption that the
person must seek review or appeal through the formal channels
provided for. The Minister of Immigration would still have the power
to intervene in any case but, under normal circumstances, would not
do so unless all other avenues were exhausted and only if the case
warranted such intervention.
Appeals on the facts
One appeal on the facts only
411
Only one appeal on the facts (against liability for expulsion) would be
allowed. Temporary permit holders could contest liability for
expulsion with the Department of Labour once only. Residence
permit holders could contest liability for expulsion to an independent
appeal authority once only.
412
In either case, if the person had been convicted by the court for an
offence that made them liable for expulsion, they would not have
access to departmental or independent appeal on the facts. The fact
that they had committed an offence would already have been proven
in the courts. Likewise, if refugee status had been cancelled, or
citizenship deprived on the basis of fraud, the person would not have
access to a further appeal. In each of these cases, the initial decision
already carries a right of appeal to an independent authority or
higher court on the facts of the matter.
Benefits and costs
413
This approach ensures that a person may contest whether they are
actually liable for expulsion once only. Temporary permit holders are
granted a conditional stay in New Zealand, and it is appropriate that
the government retain control of the review of expulsion decisions
for temporary entrants. New Zealand residents have been granted
more substantial rights to be in New Zealand, and it is appropriate
for them to be able to contest liability for expulsion with an
independent authority.
The International Covenant on Civil and Political Rights
97
414
This approach ensures that New Zealand upholds its obligation under
Article 13 of the International Covenant on Civil and Political Rights
to provide persons lawfully in New Zealand, who we seek to expel,
with a right to have the case reviewed.
415
Article 13 has no grounds attached to it – the person must simply be
allowed to submit the reasons against his or her expulsion and have
97
the case reviewed. It does not apply to persons unlawfully in New
Zealand, such as overstayers. It does apply where the legality of the
person’s stay may be disputed.
416
It is unclear whether Article 13 requires a second level of decisionmaking or whether reconsideration by the original decision-maker is
sufficient. A prudent approach is proposed – that review by a higher
decision-maker, whether departmental or independent, is required.
Appeals on humanitarian grounds
417
Both options discussed below allow for exceptions to expulsion
criteria to be made on humanitarian grounds.
418
In combination with proposals to streamline liability for expulsion
(Section 6), appeals on the facts (above) and proposals to establish
an amalgamated appeals authority (Section 8), either option
discussed below could significantly reduce the time it takes to expel
a person. Either option could create a system that allows for New
Zealand to retain control over expulsions, yet remains fair. Either
option would create more effective and efficient decision-making
processes.
419
These options do not present changes to the current limitations on
appeal for residents whose deportation is ordered on the basis of
their being a security threat. Where a person is a security threat,
deportation is ordered by the Governor-General on the advice of the
Minister of Immigration and the person has no right of appeal, other
than judicial review. Likewise, neither option suggests introducing an
appeal right for persons turned around at the border (including failed
refugee status claimants detained at the border). In all other cases,
complaints to the Ombudsmen could be made about departmental
decision-making, and judicial review would also be available.
420
The options present different approaches to recognising the interests
at stake, and, at this stage, there is no clearly preferred option.
Option A – Humanitarian appeal for all persons facing expulsion
421
98
Under Option A:
•
any person liable for expulsion could appeal to an independent
authority on humanitarian grounds once only and within a set
time (for example, 14 days) of liability for expulsion being upheld
at appeal on the facts
•
appeals from persons unlawfully in New Zealand would have to
be lodged within a set time (for example, 28 days) of becoming
unlawful, and
•
where a person did not access independent appeal, there would
be a departmental assessment of New Zealand’s international
obligations prior to removal.
98
Figure 2: Option A
Independent humanitarian appeal for all who
Single
opportunity
to
contest
liability for expulsion on the facts
appeal within set period
Departmental assessment prior to deportation
for those who do not access appeal
Benefits and costs
422
Option A gives equal opportunity for temporary entrants unlawfully
in New Zealand, and residents who commit residence fraud or a
serious criminal offence, to have an independent humanitarian
assessment prior to deportation. It recognises that, in some cases,
temporary entrants will have connections as strong as resident
permit holders.
423
Any person who did not access their right of humanitarian appeal
could still have an assessment of international obligations completed
by the Department of Labour prior to deportation, as is the current
policy. Option A is most similar to the status quo in that it allows for
all persons to access an independent humanitarian appeal prior to
expulsion within a limited time period.
424
Option A may encourage non-compliance with immigration
requirements by allowing overstayers a more comprehensive
humanitarian assessment than that accessible to those who lawfully
apply for residence.
How would Option A work in practice?
425
Under Option A, any person who comes to New Zealand and stays
temporarily on a student, work or visitor permit and who overstays,
and any resident who becomes liable for expulsion, could access a
humanitarian appeal against expulsion – as long as they appeal
within the set period of time. Such people may have been in New
Zealand for a short period of time, or for many months or even
years. They may or may not have family in New Zealand.
Option B – Humanitarian appeal for residents and sponsored
temporary entrants
426
99
Under Option B:
•
unlawful temporary entrants (overstayers and failed refugee
status claimants) would have access to an independent
humanitarian appeal against expulsion only where the appeal was
lodged by a New Zealand sponsor, or where the person had been
living lawfully in New Zealand for two years or more at the point
they became unlawful
•
all residents liable for expulsion would have access to an
independent humanitarian appeal, and
99
•
427
where a person had no access to (or did not access) independent
appeal, there would be a departmental assessment of New
Zealand’s international obligations prior to removal.
As with Option A, appeals would have to be lodged within a set time
period.
Figure 3: Option B
Independent humanitarian appeal for residents
and temporary entrants with a sponsor or who
Single
opportunity
to
contest
liability for expulsion on the facts
have lived in New Zealand lawfully for at least
two years
Departmental
assessment
for
short-term
temporary entrants, those without a sponsor
and those who do not access appeal
Note to Option B
428
Option B gives different humanitarian appeal rights against expulsion
to temporary entrants and residents. This distinction raises the
question whether persons who obtained residence status through
fraud should be classified as residents or not (for the purpose of the
humanitarian appeal). Such people only gained residence status by
concealing the truth and have essentially been living in New Zealand
unlawfully. As such, they could be treated the same as temporary
entrants who have overstayed. Canada deems a person to have been
present in Canada unlawfully from the time the fraud was committed
(subject to appeal on the facts).
Benefits and costs
429
This option would allow those with demonstrated New Zealand
interests an avenue of independent appeal. It can be seen as parallel
to the option discussed in Subsection 7.1 requiring declined
residence applicants to have a New Zealand family or employer
sponsor in order to access an independent appeal. This option would
reduce the number of persons eligible for independent appeal prior
to expulsion. It may establish a framework that is more in line with
New Zealand’s interests as a whole. It may create a system that is
more effective and efficient, while maintaining fairness.
7.2 Key questions
100
1
Do you agree that persons should only have one opportunity to contest
liability for expulsion on the facts?
2
Should all persons liable for expulsion have access to an independent
humanitarian appeal, or should it be restricted to residents and
100
sponsored temporary entrants?
3
7.2.1
Should persons who obtained residence through fraud be treated as
residents or overstayers for establishing access to humanitarian appeals?
What test should an independent appeal authority apply when
considering an appeal against expulsion?
430
This section considers what the test should be for independent
humanitarian appeals against expulsion.
Status quo
431
There are currently three tests for humanitarian appeals against
expulsion (set out in the legislation).
Test 1
•
An appeal by an overstayer to the Removal Review Authority may
be upheld where:
“there are exceptional circumstances of a humanitarian nature
that would make it unjust or unduly harsh for the person to be
removed from New Zealand, and that it would not in the
circumstances be contrary to the public interest to remain in New
Zealand.”
Test 2
•
A person whose residence permit is revoked (on grounds of fraud
or misrepresentation) may appeal to the Deportation Review
Tribunal on the grounds that:
“it would be unjust or unduly harsh for the person to lose the
right to be in New Zealand indefinitely.”
•
Even if this test is not met, the Deportation Review Tribunal may
quash the revocation of the residence permit in any case, as it
thinks fit.
Test 3
•
A person subject to a deportation order (on grounds of serious
criminal offending) may appeal to the Deportation Review
Tribunal on the grounds that:
“it would be unjust or unduly harsh to deport the person from
New Zealand, and that it would not be contrary to the public
interest to allow the person to remain.”
101
101
What works well?
432
Test 1 is well established as a tight test that requires the
humanitarian circumstances to be exceptional and the public interest
to be taken into account. Ten to twenty percent of appeals are
allowed through this test each year.
What are the problems/opportunities?
433
In a legal sense, Tests 1 and 3 and very similar. However, both the
Deportation Review Tribunal and Ministers have expressed concern
that, in practice, Test 3 does not allow for a proper balancing of New
Zealand’s interests and humanitarian concerns. The problem may
be:
•
the absence of exceptional circumstances in the test, and/or
•
that the legislation does not adequately account for the two sides
of the test. The legislation requires a number of factors to be
taken into account in determining what would make it unjust or
unduly harsh to deport, but is silent on what must be considered
in determining the public interest.
434
Test 2 was designed to create a lower threshold than Test 1 and Test
3. This distinction was made on the basis that a resident whose
permit is revoked should have greater rights and interests in
remaining in New Zealand than a temporary entrant, or a resident
who criminally offends. This idea is contestable, as Test 2 applies
only to persons who obtained residence through fraud or
misrepresentation and otherwise would be in New Zealand
unlawfully. In many cases, their level of offending may be equal to
those to whom Test 3 applies. It appears particularly anomalous that
under Test 2 the appeal may be allowed in any circumstances that
the Deportation Review Tribunal sees fit. This gives the Tribunal
highly discretionary powers to override the grounds for expulsion.
435
This review presents an opportunity to question whether there
should be differing tests for unlawful temporary entrants
(overstayers), residents who commit fraud, and residents who
otherwise seriously criminally offend, and to ensure that the tests
are appropriate.
What do other countries do?
102
436
None of the countries compared have different tests like New
Zealand. As noted above, Australia does not have a statutory
humanitarian test at all. Humanitarian exceptions are made purely at
the discretion of the Minister of Immigration.
437
Canada, in addition to the international protection regime discussed
in Section 14: New Zealand’s role as an international citizen, allows
humanitarian access to applicants who can prove they are suffering
hardship that is unusual, excessive or undeserved and the result of
circumstances beyond their control.
102
438
The UK’s legislation does not set out a humanitarian test as such,
but appeals may be brought on the grounds that the decision was
unlawful under the Race Relations Act, Human Rights Act or Refugee
Convention.
Proposal
439
For the reasons discussed above, there is little justification for three
separate humanitarian tests against expulsion. The status quo is not
considered to meet the objectives of the review, particularly in light
of the proposals to streamline expulsion provisions. A single test is
proposed, as discussed below.
A single test based on exceptional circumstances weighed up against
the public interest
440
A single, robust test for humanitarian appeals against expulsion
would be developed. It would require the humanitarian
circumstances to be exceptional, and weighed up against the public
interest. The onus would be on the person to justify their continued
stay by establishing any exceptional humanitarian circumstances
that outweighed the public interest in their expulsion.
441
What constitutes an “exceptional circumstance” would not be set out
in legislation, as this would create a de facto policy. Exceptional
circumstances must be assessed on a case-by-case basis, taking into
account the particular situation of the individual.
442
The legislation could be drafted to place greater emphasis on
consideration of the seriousness of the crime in cases involving
criminal offending. The legislation could also direct how the nature
and seriousness of particular crimes are considered. For example,
certain types of crimes could be highlighted and rebuttable
presumptions set out.
How would the single test work in practice?
443
444
103
Any person who was eligible for an independent humanitarian
appeal, whether they were an overstayer, a person who had
obtained their residence permit through fraud, or a new resident who
committed a serious offence, would be subject to the same
humanitarian appeal test. The test would assess:
a)
whether the person’s
exceptional, and
humanitarian
circumstances
were
b)
whether it is contrary to the public interest to allow them to
remain in New Zealand.
Additional guidelines would be set out for cases involving serious
criminal offenders.
103
Benefits and costs
445
This approach would ensure that those who obtain residence through
fraud have the same grounds for humanitarian appeal as people who
otherwise criminally offend, or remain in New Zealand unlawfully.
The additional guidelines to help assess the public interest where the
person has criminally offended would help address concerns that
serious criminal offenders should not be allowed to stay where this is
not in New Zealand’s interests.
446
This proposal would better uphold the proposed purpose of New
Zealand’s immigration legislation – to regulate the entry, stay and
removal of a person in New Zealand’s interests. Combined with the
proposal to amalgamate the appeals authorities (Section 8), this
option would address concerns with the status quo and is the
preferred approach.
Alternative options not considered appropriate
447
Alternative options considered included a) giving the Minister of
Immigration power to override the decisions of an independent
authority in the case of very serious criminal offenders, and b)
preventing serious offenders from appealing in the first instance.
448
The first alternative would put the Minister of Immigration in a very
difficult position, potentially subject to serious criticism. This option
would introduce the ability for the Minister to exercise discretion
contrary to the interests of the individual in a way that is not
provided for elsewhere in immigration legislation.
449
The second option would create a rigid and potentially arbitrary
mechanism in an attempt to better regulate expulsion. Removing an
independent appeal right based on a definition of “very serious
offending” would mean there was no opportunity for an independent
assessment of the actual nature of the offence, the risk the person
presents and the circumstances of the offender. These issues should
be evaluated on appeal and weighed up against the public interest at
that point.
7.2.1 Key question
1
104
Do you agree that there should be a single humanitarian test against
expulsion that asks:
•
are there exceptional circumstances of a humanitarian nature, and
•
is it contrary to the public interest to allow the person to remain?
104
SECTION 8: THE INDEPENDENT APPEAL BODIES
Scope of section
8.1
How should the independent appeal bodies be structured?
8.2
Which government department should service the immigration and refugee
appeals bodies?
8.1
How should the independent appeal bodies be structured?
450
This section discusses the structure of the independent immigration
and refugee appeal bodies. Table 10 below sets out the possible
circumstances where someone may appeal an immigration or
refugee decision (depending on decisions reached in Section 7:
Access to review and appeal and Section 14: New Zealand’s role as
an international citizen).
Table 10: Summary of possible avenues for independent appeal
Decision to be appealed
Residence decisions:
•
All residence applicants, or
•
No residence applicants, or
•
Onshore residence applicants and
offshore applicants with New Zealand
sponsor
All refugee status/protection declines
Liability for deportation (appeals on the
facts):
•
Refugee status cancellation
•
Residence fraud or misrepresentation
where there has been no conviction for
fraud in the courts
•
Suspected terrorists
Humanitarian appeals against expulsion:
•
All liable residents and temporary
entrants, or
•
Liable residents and sponsored
temporary entrants, or those who have
lived in New Zealand lawfully for at least
two years
105
Grounds for appeal
Was the initial decision correct?
Should an exception to policy be made?
Does the person meet the threshold for
protection set out in the applicable
conventions?
Is
the person
actually
liable
for
deportation?
Are there exceptional circumstances of a
humanitarian nature?
Is it contrary to the public interest to
allow the person to remain?
105
Status quo
451
There are
authorities:
currently
four
immigration
and
•
the Residence Review Board (RRB)
•
the Refugee Status Appeals Authority (RSAA)
•
the Removal Review Authority (RRA), and
•
the Deportation Review Tribunal (DRT).
refugee
appeals
452
The Residence Review Board, Refugee Status Appeals Authority and
Removal Review Authority are serviced by the Department of Labour
and share some cross-appointed members. They consist of both fulltime and part-time members. The Deportation Review Tribunal is
serviced by the Ministry of Justice and consists of part-time members
only.
453
In addition to the appeal authorities, judicial appeals on the facts
against liability for expulsion are currently heard by the High Court,
in the case of residence revocations, citizenship deprivation and
deportation on grounds of being a suspected terrorist. The courts
also hear appeals against criminal convictions.
Table 11: Flows through the current appeals authorities 2004/05
Number of appeals
lodged
Number of decisions
made
RRB
408
RSAA
360
RRA
410
DRT
50
418
570
300
28
8.7
months*
(excluding
backlog)
302
8.5 months*
17.9
months**
227
74
Average time for
decision-making
16.1 months*
Appeals on hand 31
October 2005
440
* Average time from receipt of appeal to dispatch of decision 1 Aug–31 Oct 2005
** Average time from receipt of appeal to dispatch of decision 2004/05
What works well?
106
454
The current system of independent immigration and refugee
tribunals has been successful in creating bodies of experts on
immigration and relevant international law. It provides a trusted
avenue of redress that helps avoid extensive litigation and judicial
review. This is significant, not only in that it can reduce delays in
final decisions, but in that it allows immigration matters to be heard
by a consistent group of experts. New Zealand’s system is well
regarded internationally.
455
The Residence Review Board, Refugee Status Appeals Authority and
Removal Review Authority have considerably reduced their backlogs
(discussed below) and are on track to eliminate them.
106
What are the problems/opportunities?
456
Each of the appeal authorities has been established for a single
purpose. This means that a person who has more than one appeal
right has to appeal to multiple authorities. This can create extended
delays, particularly in reaching final expulsion decisions. It is
inefficient and ineffective for different authorities to be assessing the
same cases for credibility and for the particulars of the case. For
example, in 2004/05, 114 of 315 appeals (36 percent) to the
Removal Review Authority were failed refugee status claimants, most
of whom had previously appealed to the Refugee Status Appeals
Authority.
457
The current structures do not lend themselves to new review or
appeal rights being introduced (such as that proposed in Section 9:
The use of classified information), or existing appeal rights being
removed. (The possibility of removing some or all residence appeal
rights is discussed in Section 7: Access to review and appeal.)
458
All four authorities have experienced problems with significant
backlogs of appeals and subsequent delays in decision-making. This
is due, in part, to the variation in the flow of appeals through the
different authorities. There are also difficulties in adjusting resource
levels quickly to respond to changeable flows in appeals. Small
tribunals can have greater difficulty justifying full-time and
permanent members. These significant delays can obstruct New
Zealand’s ability to regulate immigration efficiently and effectively.
459
The ability for sharing knowledge and expertise is limited by the
current legislative structures. The Deportation Review Tribunal and
the Removal Review Authority both consider very similar tests,
requiring similar expertise and knowledge of domestic law and
international human rights law. Yet the different structure of the
authorities does not facilitate the sharing of knowledge and
expertise. These difficulties are further exacerbated because the
bodies are administered by different departments.
460
As noted above, three of the authorities are currently reducing their
backlogs. There may, however, be an opportunity to consider more
appropriate structures to facilitate efficient and effective decisionmaking, be adaptive to change and create understandable and
accessible legislation.
What do other countries do?
107
461
Australia, Canada and the United Kingdom (UK) do not have
separate tribunals for appeals against declined immigration decisions
and decisions to remove or deport as New Zealand has. Having said
this, Australia and Canada’s systems of appeal are complex and
result in significantly more appeals through the courts than New
Zealand experiences.
462
Australia has the Migration Review Tribunal that deals with
immigration appeals, the Refugee Review Tribunal that deals with
107
refugee appeals, and the Administrative Appeals Tribunal that deals
with administrative appeals across government departments. In
addition to appeals through these bodies, 4,264 appeals to the
courts were lodge against departmental or tribunal decisions in
2004/05.
463
In Canada, the Immigration Appeal Division of the Immigration and
Refugee Board deals with immigration appeals, and appeals against
refugee declines are made to the courts. In practice there are high
numbers of appeals to the Federal Court on a range of immigration
matters.
464
The UK has recently established a new single Asylum and
Immigration Tribunal, creating a “one stop shop” approach, with
limited avenues for further appeal. Under this system, a person may
only lodge one appeal, and all possible considerations (facts and
humanitarian appeals) are heard together. The options below draw
on aspects of the UK model.
Proposal
465
The status quo is not considered a practical option for the future.
Two options for a single tribunal are presented that differ only in
detail. While there is no preference for Option A or Option B at this
stage, there is a preference for establishing a single tribunal.
Option A – Single immigration and refugee appeals tribunal (tiered
expulsion appeals)
466
108
Under Option A, a single immigration and refugee appeal tribunal
would be established. It would incorporate all streams of immigration
and refugee appeals. The tribunal would hear appeals against:
•
residence declines (if applicable)
•
refugee/protection declines
•
liability for expulsion on the facts, and
•
expulsion on humanitarian grounds.
467
Appeals against liability for expulsion would include appeals against
refugee cancellation, findings of residence fraud by the Department
of Labour, findings that permit conditions were not met and appeals
against deportation in the case of suspected terrorists.
468
The appeal on the facts and the humanitarian appeal could be heard
separately, but streamlined, for example, by requiring the same
member to hear each appeal and requiring them to be heard within a
short period of each other (for example, 14 days).
108
Figure 4: Option A – Single immigration and refugee appeals tribunal (tiered
expulsion appeals)
Stream 1 Residence
Stream 2 Protection
Stream 3 Expulsion
Appeals against
Appeals against refugee/
Appeals against liability for
residence declines on
protection declines – facts.
expulsion – facts (if applicable).
Humanitarian appeal against
Humanitarian appeal against
expulsion (if applicable).
expulsion (if applicable).
• the facts, and
• exceptions to policy.
Benefits and costs
469
Creating a single tribunal would allow for greater efficiencies in the
appeals system. The same member could hear the appeal on the
facts and the appeal on humanitarian grounds. The delay between
hearing the two could be reduced. This would significantly reduce
delays in assessing whether or not a person should be expelled from
New Zealand and the risk of inconsistent decision-making. In this
respect, it would be both fairer to the individual and provide for a
more robust immigration system. In particular, there would be
greater efficiencies in hearing humanitarian appeals.
470
The numbers of appeals considered by the current authorities are not
high by international standards, or in comparison to migration flows
to New Zealand. They are changeable and can peak and flow. On this
basis, arguably, New Zealand cannot sustain four individual tribunals
without creating significant delays in decision-making.
471
Under this option, a single tribunal could consist largely of full-time
permanent members and have better flexibility to respond to
changes in flows of appeals. This flexibility could help in reducing the
likelihood of backlogs and delays. This option could result in many of
the benefits of clustering tribunals identified by the Law Commission
(Delivering Justice for All: A Vision for New Zealand Courts and
Tribunals) including:
472
109
•
being more prominent, better known and
accessible, more independent and authoritative
more
obviously
•
according tribunal members a more secure career, allowing them
to be deployed in a range of compatible jurisdictions and enabling
them to be better resourced and trained, and
•
securing greater efficiencies and economies of scale.
A single tribunal would better support the options identified in
Subsection 7.2 to streamline avenues of appeal against expulsion.
The tribunal would be in a stronger position to take on avenues of
appeal that currently go to the High Court, such as appeals against
residence revocation due to fraud. The current Refugee Status
109
Appeals Authority has expertise in refugee cancellation on the basis
of fraud.
473
There can be drawbacks in hearing too many different appeals
together in cases where the issues are complex. Having a process
where appeal on the facts is heard in the first instance, followed by a
humanitarian appeal, would work to address this.
474
While this option would create efficiencies in the long term, there
would be initial establishment and transitional costs.
Option B – Single immigration and refugee appeals tribunal (single
expulsion appeal for non-refugee related appeals)
475
This option mirrors Option A, except that appeal on the facts and the
humanitarian appeal could be heard together in the expulsion
stream, where a person was eligible for both. It is akin to the
recently-established system in the UK that provides for a single right
of appeal against expulsion. The tribunal could have the discretion to
decide questions of liability and humanitarian circumstances
separately if the case warranted it.
476
It is not proposed that refugee status/protection and humanitarian
appeals be heard together. This would create a hearing that may be
too difficult to manage, particularly in light of the proposals to
extend protection determination set out in Section 14: New
Zealand’s role as an international citizen. As noted, they could be
streamlined by allowing the same member to hear each appeal and
by reducing the period between the appeals to 14 days.
Figure 5: Option B – Single immigration and refugee appeals tribunal (single
expulsion appeal)
Stream 1 Residence
Stream 2 Protection
Stream 3 Expulsion
Appeals against
Appeals against refugee/
A single appeal against liability
residence declines on
protection declines – facts.
for expulsion on:
• the facts, and
• the facts, and
• exceptions to policy.
• humanitarian circumstances
Humanitarian appeal against
(where eligible for both).
expulsion (if applicable).
Benefits and costs
477
110
As with Option A, Option B could significantly reduce delays in
assessing whether or not to expel a person from New Zealand. A risk
of Option B is that the appeal hearing and decision-making process
could become complex in the expulsion stream. As with Option A,
while there would be significant efficiencies in the long term, there
would be initial establishment and transitional costs.
110
How would Options A and B differ from the status quo in practice?
Example 1
478
A person who arrived in New Zealand was found to be a refugee.
They became a permanent resident on that basis. Two years later,
the Department of Labour found that the person obtained their
refugee status by fraud and cancelled their refugee status.
479
Under the status quo, the person could appeal to the Refugee Status
Appeals Authority against the refugee status cancellation (on the
facts). The Department of Labour could then revoke their residence
permit on the basis of a declined appeal, and the person could
appeal to the High Court against the revocation on the facts (again).
The person could then appeal to the Deportation Review Tribunal to
allow them to stay on humanitarian grounds.
480
Under Options A and B, the person could appeal to the single tribunal
on the basis that they did not commit fraud. If the tribunal dismissed
the appeal, the person could then appeal again to the tribunal to
allow them to stay on humanitarian grounds. The same member
could hear both appeals within a shortened timeframe.
Example 2
111
481
A person becomes a New Zealand resident through the partnership
policy. Two years later, the Department of Labour finds that the
person obtained residence by fraud.
482
Under the status quo, the Department of Labour could revoke their
residence permit. The person could appeal to the High Court against
the residence revocation on the facts. They could then appeal to the
Deportation Review Tribunal on humanitarian grounds.
483
Under Option A, the person would be liable for expulsion and could
appeal to the tribunal against liability for expulsion. The person could
then appeal again to the tribunal to allow them to stay on
humanitarian grounds. The same member could hear both appeals
within a shortened timeframe.
484
Under Option B, the person would be liable for expulsion and could
lodge a single appeal to the immigration and refugee tribunal. The
tribunal would consider, in a single decision, whether the person
obtained residence through fraud and, if so, whether there were
humanitarian grounds to allow them to stay.
111
An alternative considered: Separate immigration and refugee
tribunals
485
Under a further alternative, a single immigration appeal tribunal
incorporating all streams of immigration appeals would be
established, but refugee status/protection appeals would remain in a
separate tribunal.
Figure 6: Separate immigration and refugee appeals tribunals
Immigration Authority
Refugee Authority
Appeals against
Appeals against
Appeals against
residence declines on
liability for expulsion –
refugee/protection
• the facts, and
facts (if applicable).
declines.
• exceptions to policy.
Humanitarian appeal
against expulsion (if
(If applicable)
applicable).
Benefits and costs
486
This alternative may be more likely to maintain the integrity of the
refugee status determination process. The success and international
standing of the Refugee Status Appeals Authority may be attributed
to the single focus of the Authority and its independence from
immigration decision-making.
487
This option removes the possibility of streamlining the hearing of
refugee/protection appeals and humanitarian appeals by a single
authority. It also removes the possibility of streamlining appeals
against refugee status cancellation with any humanitarian appeal
against expulsion.
488
This option would not create opportunities for sharing of expertise
between the authorities. Given the small number of flows through all
of the current authorities, this option may not be justifiable long
term. For these reasons, this alternative is not considered to be best
placed to meet the objectives of the review.
Note on detail of independent appeals
489
112
The legislation will need to set out a number of detailed provisions
regarding any appeals body. These include:
•
in which cases, if any, there should be a further appeal to a
higher court on a point of law
•
who may be appointed as the chair, deputy chair(s) and
members
•
how many members should determine an appeal
112
•
who may have access to legal aid (determined by the Legal
Services Act 2000)
•
whether appeals should be determined on the papers or following
a hearing, and
•
whether the tribunal is deemed to be a commission of inquiry.
490
Options regarding the detailed legislative arrangements for
independent appeal have not yet been developed. At this stage, it is
envisaged that any tribunal that had jurisdiction for multiple streams
of appeal could have different arrangements for different streams.
For example, it is likely to be appropriate for residence appeals to be
heard on the papers, and for deportation and refugee appeals to
have an oral hearing. It is likely that legal aid would be considered
appropriate for residents and protection claimants, but not
overstayers.
491
It may also be appropriate that the chair and deputy chair(s) of the
tribunal be appointed with the status of District Court Judges.
Section 9: The use of classified information puts forward options that
would require at least one member of the tribunal to be a Judge.
Appointing the chair and deputy chair(s) of the tribunal with the
status of District Court Judges would ensure that the options
discussed in Section 9 are possible and sufficiently resourced to deal
with appeals against decisions using classified information.
492
You are welcome to put forward your views on these details.
8.1 Key questions
1
Do you agree that there should be a single immigration and refugee
appeals tribunal?
2
In the case of appeals against expulsion, how should appeals on the facts
and humanitarian appeals be heard?
3
113
•
separately
•
together
Do you have any views on the detail of the legislative provisions for the
independent appeal authority/authorities?
113
8.2
Which government department should service the immigration
and refugee appeals bodies?
493
This subsection considers which government department should
service the independent immigration and refugee appeals tribunal
(or tribunals).
Status quo
494
Under the current Immigration Act, the Residence Review Board,
Removal Review Authority and Refugee Status Appeals Authority are
serviced by the Department of Labour. The Deportation Review
Tribunal is serviced by the Ministry of Justice.
What works well?
495
The Residence Review Board, Removal Review Authority and Refugee
Status Appeals Authority remain entirely independent from the
Department of Labour in their judicial decision-making. By being
serviced by the department, they maintain useful linkages in terms
of keeping up-to-date with policy developments and informationsharing.
What are the problems/opportunities?
496
While the authorities serviced by the Department of Labour are fully
independent, from time to time, there is a perception that they are
not. This may affect their reputation and public confidence in the
authorities.
497
The Law Commission’s report Delivering Justice for All recommends
that eventually all tribunals be brought under a single umbrella
within the Ministry of Justice. The Law Commission specifically noted
that the independent immigration and refugee authorities were an
example where perceptions of independence could be improved by
moving to Justice.
498
The government’s response to the Law Commission’s report stated
that:
“The government acknowledges that, in some cases, the housing of
a tribunal in a related department or ministry may lead to the
perception of a lack of independence. Where, as part of the
consideration of a tribunal against the proposed guidelines, a
potential perceived lack of independence is established, that tribunal
will be treated with some priority for consideration of transfer to the
Ministry of Justice. This will include consideration of tribunals
highlighted by the Commission, including the Removal Review,
Residence Appeal and Refugee Status Appeals Authorities.” 5
499
5
Further, under the options to amalgamate all or some of the current
authorities, it would not be possible to retain the current split
between the Department of Labour and the Ministry of Justice.
Government Response to Law Commission Report on Delivering Justice for All, August 2004.
114
114
What do other countries do?
500
In Australia, Canada and the UK, the independent immigration and
refugee appeals tribunals are all serviced by the respective
immigration departments.
Proposal
501
As noted, under the proposal for single tribunal, a split between the
Ministry of Justice and the Department of Labour would not be
possible. Under Option A, the new tribunal would sit with the Ministry
of Justice. Under Option B, the new tribunal would sit with the
Department of Labour. At this stage, Option A is preferred.
Option A – The tribunal to sit with the Ministry of Justice
502
The new tribunal (or tribunals) would be serviced by the Ministry of
Justice.
Benefits and costs
503
This option would be in line with the recommendations of the Law
Commission’s report Delivering Justice for All. It would ensure that
the tribunal was perceived to be completely independent from the
Department of Labour. It may also be perceived to provide for more
integrity in the immigration system. The Ministry of Justice currently
has responsibility for supporting a range of tribunals.
504
If the appeal bodies were to move to the Ministry of Justice, it would
be important for core information-sharing mechanisms to continue.
For example, close cooperation with the Department of Labour would
be necessary where tribunal decisions lead to release from detention
or expulsion. For this option to work, it may be desirable to set out
relevant protocols in legislation. This option would not prevent the
tribunal from engaging with the Department of Labour, for example,
by undertaking seminars from time to time.
505
There would be transitional costs associated with this option.
Option B – The tribunal to sit with the Department of Labour
506
The new tribunal (or tribunals) would be serviced by the Department
of Labour.
Benefits and costs
115
507
Under this option, while independent from the Department of Labour,
the tribunal could maintain useful linkages. These linkages include
keeping up-to-date with policy developments, information sharing on
relevant files and using their expert knowledge to help up-skill
officials.
508
While such linkages may be considered beneficial from an
operational perspective, they may add to perceptions that the
tribunal was not entirely independent from the Department of
Labour. There may also be a need to move the tribunal to the
115
Ministry of Justice at a later date in light of the work coming out of
the Law Commission’s report.
8.2 Key question
1
116
Which government department should service the immigration and
refugee appeals bodies?
•
Ministry of Justice
•
Department of Labour
116
SECTION 9: THE USE OF CLASSIFIED
INFORMATION
Scope of section
9.1
How should classified security information be used in immigration decisionmaking?
9.2
How should classified information, other than classified security information,
be used in immigration decision-making?
9.3
How should classified information (security or otherwise) be used in
refugee/protection decision-making?
509
Section 5: Decision-making proposed options that would allow
immigration applications to be declined on the basis of classified
information without giving the information and reasons for decisions
to the applicant. Both options proposed that in the case of offshore
decision, appeal mechanisms are not warranted. No further
mechanisms are required to protect the classified information in
these cases. This section, therefore, does not discuss the use of
classified information in offshore decisions.
510
Rather, this section considers options for the use of classified
information, including classified security information, in onshore
decisions. This section considers the mechanisms that would be
needed to protect the classified information where:
511
117
•
the New Zealand Security Intelligence Service (NZSIS) has
classified security information about an onshore residence or
temporary applicant
•
the Department of Labour has classified information, from a
source other than the NZSIS, about an onshore residence or
temporary applicant, and
•
the Department of Labour has classified information about a
refugee/protection claimant.
Part 4A of the Immigration Act Special procedures in cases involving
security concerns is not covered by this section as it is outside the
scope of this review. Part 4A covers the use of classified security
information relating to a security risk where the government
considers the appropriate response is to detain and expel the person.
It is the part of the Immigration Act that is being used in regard to
Mr Ahmed Zaoui.
117
What is classified information?
512
The New Zealand government has a classification system for official
information held by government organisations. This ensures that
information is protected according to the degree of harm that could
result from its unauthorised disclosure. When official information has
a classification, specified standards for its handling and protection
must be followed.
513
Chief executives and heads of government departments and
agencies, State Owned Enterprises and Crown Entities have the
authority to classify material using the approved classifications. Chief
executives and heads may delegate authority to classify to senior
staff, but sparingly.
514
The New Zealand Government also has international obligations and
statutory responsibilities to protect classified material received from
allies, friendly nations and international organisations. Material must
be classified at a level not less than that in force in the country or
organisation of origin.
What is classified security information?
515
118
Classified security information refers to classified information held by
the NZSIS and the Government Communications and Security
Bureau. Other classified information may come to the attention of
the Department of Labour through agencies such as the New
Zealand Police or Customs Service, or overseas agencies.
118
9.1
How should classified security information be used in immigration
decision-making?
516
This subsection discusses how classified security information
(classified information held by the NZSIS or the Government
Communications Security Bureau) could be used in decisions on
onshore applications for residence or a further temporary permit.
These agencies focus on maintaining New Zealand’s security and
may hold classified information about an individual that relates to
New Zealand’s security.
517
This section only refers to cases where the appropriate response is
not to detain and expel under Part 4A.
Status quo
Immigration decision-making
518
As discussed in Section 6: Exclusion and expulsion, a core function of
immigration legislation is to set boundaries on who may be excluded
from New Zealand and who may be expelled. As discussed in Section
5: Decision-making, in most cases, natural justice requires that
information that is potentially prejudicial to the applicant should be
provided to the applicant before declining an immigration application.
They should be allowed to respond to the information, and be given
reasons for the decision.
519
There are, however, a number of reasons why classified information
should not be disclosed to an immigration applicant or
refugee/protection status claimant. These feature in the Official
Information Act 1982 as reasons for not releasing information.
Disclosure of the information may:
(a) lead to the identification of:
ƒ
the source of the information, or
ƒ
the methods of the NZSIS, the Government Communications
Security Bureau, or another agency that may hold classified
information, such as the New Zealand Police or Customs, or
overseas agencies, or
ƒ
a particular operation of such an agency, and
(b) prejudice the security or defence of New Zealand or New
Zealand’s international relations, or
520
119
ƒ
prejudice the entrusting of information to New Zealand on a
basis of confidence, or
ƒ
prejudice the maintenance of the law, or
ƒ
endanger the safety of the applicant or another person.
Because potentially prejudicial information should be disclosed to
immigration applicants for natural justice reasons, and because
classified information cannot be disclosed, classified information
(security information or otherwise) is not currently used in
119
immigration decision-making. Classified information that cannot be
released to an applicant can currently be used only as a starting
point to find open-source confirmation of the information. Opensource information (information that is freely available and can be
shared with the individual concerned) can then be used as the basis
for decision-making.
NZSIS functions
521
Under the New Zealand Security Intelligence Act 1969, the NZSIS
can make recommendations in respect of matters to be decided
under the Immigration Act and the Citizenship Act 1977. This power
is not currently used in the immigration context because of the
current requirements to always give potentially prejudicial
information and reasons for decisions to applicants.
522
This power is used in the citizenship context. The Minister of Internal
Affairs may decline citizenship on character grounds on the basis of a
recommendation from the Director of Security (NZSIS). In such
cases, the person may complain to the Inspector-General of
Intelligence and Security (Inspector-General).
What is the role of the Inspector-General of Intelligence and Security?
523
The Inspector-General is an independent watchdog for New
Zealand’s intelligence and security agencies. Appointed by the
Governor-General, the Inspector-General must have previously held
office as a judge of the High Court of New Zealand.
524
The Inspector-General may investigate any act, omission, practice,
policy or procedure of an intelligence and security agency. This
includes the NZSIS and the Government Communications Security
Bureau.
525
When citizenship is declined on the basis of an NZSIS
recommendation, the Inspector-General may review the case and
make such recommendations as the Inspector-General sees fit. A
final decision on the citizenship application remains with the Minister.
What works well?
526
In the immigration context, the current system (apart from Part 4A)
requires all information used in decision-making to be disclosed to
and contested by the applicant or claimant.
527
In the citizenship context, the ability for the NZSIS to make
recommendations on security concerns, with independent review by
the Inspector-General, allows New Zealand to make decisions about
to whom it will grant the rights and privileges of citizenship using all
the information available.
What are the problems/opportunities?
528
120
Other than in the case of Part 4A, classified information cannot be
used as the basis for deciding an immigration application or
120
refugee/protection claim. This may prevent New Zealand from
making appropriate decisions when open-source information is
unavailable.
529
Part 4A provides a process for detaining and removing a person who
is a security risk. However, the legislation does not provide a process
that allows the Department of Labour simply to refuse to grant a visa
or a permit on the basis of classified security information. Not all
persons identified by classified information as being of concern
warrant immediate arrest, detention and expulsion from New
Zealand as is required under Part 4A.
What do other countries do?
121
530
Australia, Canada and the United Kingdom (UK) have provisions
enabling immigration decision-makers to use classified information.
531
In Australia, unless a visa applicant can satisfy specified public
interest criteria they will not be granted a visa. Classified information
may be used to inform the assessment against public interest criteria
(for example, that the person is not a risk to Australian national
security, or that the person’s presence in Australia would not be
prejudicial to relations between Australia and a foreign country). In
such cases, only generic reasons for decisions are given to
applicants.
532
Public interest criteria apply to all visas, except for special purpose
visas and some bridging visas. There is no ability for a declined visa
applicant to challenge an adverse assessment against the public
interest criteria.
533
In Canada, the Minister of Immigration may make a certificate
stating that a permanent resident or a foreign national is
inadmissible on grounds of security, violating human or international
rights, serious criminality or organised criminality. The information in
the certificate may be security or criminal intelligence obtained in
confidence from a source in Canada, or from a foreign government
or organisation.
534
The Minister of Immigration refers the certificate to the Federal
Court. The judge must ensure the confidentiality of the information if
its disclosure would be injurious to national security or the safety of
any person. The judge then makes a determination as to whether
the certificate is reasonable. This determination is final and is not
open to judicial review, but may be challenged under the Canadian
Charter of Rights and Freedoms. There is a high number of
challenges under the Charter.
535
The UK uses classified information in immigration decision-making,
where this relates to national security. Where the Secretary of State
deports or excludes someone from the UK on national security
grounds, or for other public interest reasons, on the basis of
sensitive information, there are no standard rights of appeal.
However, there are rights of appeal to a body called the Special
121
Immigration Appeals Commission (SIAC). The SIAC may review the
case and make a final decision on whether the appeal should be
upheld or not.
Proposal
536
Retaining the status quo in its current form does not allow New
Zealand to make immigration decisions using classified security
information and is not considered to be robust. The proposal below
builds on the existing functions of the NZSIS and Inspector-General.
It mirrors the current practice in the citizenship context.
Allow the Minister of Immigration to decline a residence or
temporary application, based on a recommendation from the NZSIS,
with review by the Inspector-General
122
537
As discussed in Section 6: Exclusion and expulsion, exclusion criteria
apply to all residence and temporary applicants. This proposal builds
on that in Section 6 to introduce character grounds for exclusion into
the legislation.
538
Under this proposal, legislation would specify that grounds for
excluding someone on the basis that they were not of good character
would include a recommendation by the NZSIS (based on classified
security information). The NZSIS would fully disclose the information
to the Minister and brief him or her on the recommendation.
539
The Minister could then choose to rely on the recommendation or
not. The Minister could only rely on classified information where
open-source information was not available.
540
If established, this function is most likely to remain with the Minister
of Immigration. In the interests of flexible legislation for the future,
there would be an ability to delegate this function to senior securitycleared immigration officials.
541
Where an application was declined on the basis of an NZSIS
recommendation,
under
the
existing
Inspector-General
of
Intelligence and Security Act 1996, the declined applicant could
make a complaint to the Inspector-General. The Inspector-General
could undertake a full review of the NZSIS’s recommendation that
the person should be declined a permit on character grounds. There
would be no further right of appeal to the immigration appeals
tribunal.
542
If, however, the Inspector-General found that the NZSIS
recommendation was unfounded, and the Minister of Immigration
upheld his or her decision to decline the application for other
reasons, the person could then appeal to the immigration tribunal.
543
The new provision could be used for people who present a risk to
New Zealand’s interests, but whose risk can be managed by
preventing further extensions of their stay. Unlike Part 4A, the new
legislative provision would not require the immediate arrest of the
person affected, nor would it require their immediate removal.
122
Benefits and costs
544
This approach would clearly shift the weighting of immigration
legislation from the individual’s interests to New Zealand’s interests.
It would allow the government to exercise its sovereign right to
choose who may enter and remain in New Zealand and provide for
more integrity in the immigration system.
545
New Zealand could decline an immigration application on the basis of
an adverse security finding by the NZSIS. This approach would build
on successful existing processes in the citizenship and security
vetting contexts. It would ensure that immigration applicants have
the same rights of complaint as New Zealand residents applying for
citizenship and applicants for a New Zealand government security
clearance.
546
Creating a more flexible overall risk-management regime would
allow certain prescribed risks to be managed by simply refusing
additional permits, without requiring a person to be detained and
removed under Part 4A. It would establish a process that would be
streamlined and is most likely to meet the objective of efficient
decision-making.
547
Importantly, this approach provides for the use of classified
information to be impartially reviewed. This provides assurance that
the process will be well scrutinised.
548
The process outlined would only be initiated where open-source
confirmation of the information was unavailable. This would ensure
maximum transparency in immigration decision-making, and keep
the need for the Inspector-General’s involvement to a minimum.
549
Decisions made under the new process could be contentious.
Although a similar process has been used for some time in decisions
related to denial of citizenship and security clearances, this is an
untried process in an immigration context. Judicial challenges are
likely the first times it is used.
550
This proposal may require some additional resources for the
Inspector-General.
How would this proposal work in practice?
551
123
Security information about a person working on a temporary permit
in New Zealand comes to the attention of the NZSIS. One month
later, the person applies for residence in New Zealand. The Director
of Security (NZSIS) recommends to the Minister of Immigration that
this application be declined based on security concerns. The Director
of Security gives a full briefing to the Minister on the information and
their recommendation. The Minister declines the application on
character grounds without disclosing the classified information to the
person.
123
552
The person complains to the Inspector-General who reviews the
case. The Inspector-General finds that the NZSIS recommendation
was robust and reasonable. The person has no further avenue of
appeal to the immigration tribunal. They may remain in New Zealand
until their temporary permit expires and then they must leave.
9.1 Key question
1
Do you agree that the Minister of Immigration should be able to decline a
temporary or residence application on the basis of a recommendation by the
NZSIS on security grounds, with review provided by the Inspector-General of
Intelligence and Security?
124
124
9.2
How should classified information, other than classified security
information, be used in immigration decision-making?
553
This subsection discusses how classified information held by the New
Zealand Police, Customs Service or other departments, or an
overseas agency, could be used to decide onshore applications for
residence or a temporary permit.
How is classified information from other sources different to classified
security information?
554
Classified information other than classified security information (as
defined above) does not relate to security concerns. It may relate to
criminality, identity, or credibility generally. For example, it may give
reason to believe that a person has been involved in serious human
rights abuses or genocide, or is a member of a group which has
engaged in trans-national crime.
Status quo
555
As discussed in Section 9.1, in most cases, natural justice requires
that information that is potentially prejudicial to the applicant should
be provided to the person before declining an immigration
application.
556
As with classified information held by the NZSIS, classified
information from the New Zealand Police, Customs Service, other
departments or an overseas agency cannot currently be used in
immigration decision-making.
557
In addition, Part 4A only applies to NZSIS information. This means
there is currently no mechanism, even in the most serious cases, for
dealing with concerns raised about a person on the basis of classified
information from a source other than the NZSIS.
What works well?
558
The current system (apart from Part 4A) requires all information
used in decision-making to be disclosed to the applicant. This
ensures that the decision-making process is fair and transparent.
What are the problems/opportunities?
559
Currently there is no ability to use classified information from
sources such as the New Zealand Police, the New Zealand Customs
Service and overseas agencies.
560
As discussed in Section 9.1 above, New Zealand may be prevented
from making appropriate decisions when open-source information is
unavailable.
What do other countries do?
561
125
Australia, Canada and the UK have provisions enabling immigration
decision-makers to take classified information into account, as
125
outlined in Section 9.1 (paragraphs 530–535) above. These countries
have one set of processes that do not distinguish between sources of
classified information.
Proposal
562
For the reasons identified above, retaining the status quo in its
current form is not considered to be robust. The proposal outlined
below sets up a new process, different to that outlined in Section 9.1
for two reasons:
•
Only the NZSIS has the statutory power (under the NZSIS Act) to
make recommendations in regard to decisions made under the
Immigration Act. No other government department or overseas
agency can make recommendations in regard to decisions under
the Immigration Act.
•
The role of the Inspector-General, under the Inspector-General’s
Act, is focused on reviewing intelligence and security agencies
only. The Inspector-General has no mandate to investigate
complaints about other government departments.
Allow classified information, other than classified security
information, to be used in immigration decision-making, with
appeals heard by a judge of the independent immigration and
refugee tribunal
126
563
The legislation would establish a new process to allow classified
information from sources other than the NZSIS to be used in
residence and onshore temporary permit decisions.
564
As with the proposal in Section 9.1, this provision could be used for
people who present a risk to New Zealand’s interests, but whose risk
can be managed by preventing further extensions of their stay.
565
Under this provision, the Minister of Immigration could rely on
classified information, from a source other than the NZSIS, to decide
an immigration application without disclosing the information to the
applicant. The classified information concerned may relate to
anything that is relevant to legislative or policy criteria. It would only
be used where open-source information was not available. The
Minister would be briefed on the information by the agency
concerned.
566
At this stage the function is most likely to remain with the Minister of
Immigration, but there would be flexibility to delegate it in the future
to senior security-cleared immigration officials.
567
Once a decision was made on the basis of classified information, the
person would be informed that their application had been declined,
on the basis of classified information that could not be disclosed.
They could appeal this decision to the independent immigration and
refugee tribunal.
568
Only a member of the tribunal who is a judge could be designated to
hear the appeal. This approach builds on the option discussed in
126
Section 8: The independent appeal bodies, for the chair and deputy
chair(s) of the new immigration and refugee tribunal to be appointed
as District Court Judges. The judge would be privy to the classified
information, but could not disclose it.
569
It could be possible for the tribunal to establish a role for a securitycleared “special counsel” who could have access to the information
and represent the person. The applicant themselves would not have
access to the information. This type of arrangement would increase
the extent to which the interests of the applicant were independently
represented. Special counsel provisions in other jurisdictions have
raised complications and their design would require careful
consideration. Clear guidelines would be required to balance the
interests of the applicant and the government.
570
Following this review, there would be no further right of appeal.
What would the role of the tribunal be?
571
The tribunal would consider both whether it was appropriate to use
the classified information and whether the decision was correct
according to the relevant policy or legislative criteria. The specific
tests to be applied by the tribunal will be developed in the next stage
of the Immigration Act review. At this stage, it is considered
desirable that the tribunal addresses:
•
whether the information at issue is classified information, as
defined in the new Immigration Act (see discussion below)
•
whether the information is credible, and
•
the integrity of the overall conclusions drawn, in light of all the
information available, including the classified information and the
relevant criteria under which the initial decision was made.
How would classified information be defined?
572
The new Immigration Act would need a definition of classified
information that is consistent with other statutory definitions. In
summary, it could be defined as information that, if released, may:
(a) lead to the identification of:
•
the source of the information, where the source will not
consent to disclosure, or
•
the methods of the NZSIS, or another intelligence agency
such as the New Zealand Police or Customs, or overseas
agency, or
•
a particular operation of such an agency, and
(b) prejudice the security or defence of New Zealand or New
Zealand’s international relations, or
127
•
prejudice the entrusting of information to New Zealand on a
basis of confidence, or
•
prejudice the maintenance of the law, or
•
endanger the safety of the applicant or another person.
127
Benefits and costs
573
This approach would allow for the use of classified information from
sources other than the NZSIS in immigration decision-making, while
protecting the information from disclosure. It would provide
assurance that immigration decisions are not made in error, or
without full consideration of the facts, due to information being
withheld from the decision-maker. It would help ensure that
immigration policy is not abused.
574
This approach would have the same benefits as the proposal in
Section 9.1. It would:
•
allow the government to exercise its sovereign right to choose
who may enter and remain in New Zealand, providing for more
integrity in the immigration system
•
help create a more flexible overall risk-management regime by
allowing certain prescribed risks to be managed through refusing
additional permits
•
provide for the use of classified information to be impartially
reviewed
•
be streamlined and most likely to meet the objective of efficient
decision-making, and
•
ensure optimum transparency in immigration decision-making,
and keep the need for appeals to a minimum by using opensource information where possible.
575
Using a judge from the independent immigration and refugee
tribunal provides confidence that the person will also have the best
possible knowledge and expertise in immigration law. It provides
assurance that the process will be well scrutinised. The use of
security-cleared counsel would reinforce this.
576
As with Section 9.1, decisions made under the new process could be
contentious. Judicial challenges are likely the first times it is used.
How would this proposal work in practice?
128
577
Classified information about a person working on a temporary permit
in New Zealand comes to the attention of the New Zealand Police.
One month later, the person applies for residence in New Zealand.
After a briefing, the Minister of Immigration declines the application
on the basis of the classified information, on character grounds. The
Minister declines the application without disclosing the classified
information to the applicant.
578
The person appeals the decision to the immigration and refugee
tribunal. The appeal is undertaken by a designated judge on the
tribunal who is given access to the classified information. The judge
may put any potentially prejudicial information other than the
classified information to the person for comment. The judge finds
that the original decision was robust and reasonable. The person has
no further avenue of appeal. They may remain in New Zealand until
their temporary permit expires and then they must leave.
128
9.2 Key question
1
129
Do you support the proposal to allow the use of classified information from
sources other than the NZSIS in immigration decision-making, with appeals to
be heard by a judge of the independent immigration and refugee tribunal?
129
9.3
How should classified information (security or otherwise) be used
in refugee/protection decision-making?
579
This subsection discusses how classified information could be used in
refugee or protection status determination, at first instance and on
appeal 6 . It discusses the use of classified information from both the
NZSIS and other agencies (such as the New Zealand Police and
overseas agencies).
Status quo
580
As with standard immigration decision-making, classified information
cannot be used in refugee status determinations, either by a refugee
status officer or the Refugee Status Appeals Authority, because the
information cannot be disclosed. Classified information can only be
used as a starting point to find open-source confirmation of the
information.
581
A refugee or refugee status claimant may have a security risk
certificate issued under Part 4A. This information cannot be used in
the actual refugee determination process, but may be used in regard
to refusing a permit or possible subsequent expulsion.
What works well?
582
The current system (apart from Part 4A) requires all information
used in decision-making to be disclosed to and contested by the
applicant or claimant. It ensures that the decision-making process is
fair and transparent.
What are the problems/opportunities?
6
583
Classified information cannot currently be used in the course of
deciding a refugee/protection claim. This may prevent New Zealand
from making accurate refugee/protection determinations when opensource information is unavailable.
584
Refugee/protection decision-making is different to standard
immigration decision-making. Temporary and residence policy have
character provisions that set a threshold for approving an
application. Refugee/protection decisions are based on international
conventions and do not factor in character issues, except in the most
extreme cases. These conventions are discussed in more detail in
Section 14: New Zealand’s role as an international citizen. Therefore,
it would not usually be possible to decline refugee/protection status
on the basis of an NZSIS recommendation as proposed for
temporary and residence decisions in Sections 9.1 and 9.2.
This section does not discuss the use of classified information in decisions made on the annual
refugee quota. These are offshore highly-discretionary decisions that do not require potentially
prejudicial information or reasons for decisions to be given.
130
130
585
Classified information could be useful in determining that someone
was excluded from protection under the relevant international
convention. More commonly, however, it is likely to be useful in
determining the credibility of a claim. In particular, classified country
information and information that relates to the activities of the
person would be useful.
What do other countries do?
586
Canada, Australia and the UK do not allow the use of classified
information in refugee/protection determinations, on the basis that it
cannot be disclosed to the claimant. Their provisions do allow for
classified information to be used in expulsion cases for refugees or
failed refugee status claimants.
Proposal
587
For the reasons identified above, retaining the status quo in its
current form is not considered to be robust. It may prevent New
Zealand from making accurate refugee determinations. The proposal
below builds on the approach in Section 9.2.
Allow the use of classified information in refugee/protection
determinations, with appeals heard by a judge of the independent
immigration and refugee tribunal
131
588
The legislation would establish a new process to allow classified
information (whether from the NZSIS or another source) to be used
in refugee/protection determinations.
589
Under this provision, a senior security-cleared refugee/protection
officer could rely on classified information to decide a
refugee/protection claim, without disclosing the information to the
claimant. It is not proposed that this function sit with the Minister of
Immigration for the same reasons that refugee determination is
currently vested in refugee status officers.
590
The classified information concerned may relate to anything that is
relevant to the international conventions being assessed. It would
only be used where open-source information was not available. The
senior security-cleared officer could receive a brief on the classified
information from the NZSIS or other intelligence agency.
591
Once a decision was made on the basis of classified information (in
part or in full), the person could appeal to the independent
immigration and refugee tribunal.
592
The appeal process outlined in Section 9.2 would also apply here.
Only a judge could hear the appeal, and special counsel provisions
could be used. The role of the tribunal outlined in paragraphs 571
and 572 would also apply here.
131
How would this proposal work in practice?
593
The New Zealand Police give classified information on a refugee
status claimant in New Zealand to the Department of Labour. A
senior, designated refugee status officer is assigned to the case, and
allowed access to the classified information. The officer considers the
classified information in the context of all of the other information
they have been provided by the claimant, but may not disclose it to
the claimant.
594
The officer decides to decline refugee status on the basis of the
classified information. The person appeals to the immigration and
refugee tribunal. The case is assigned to a judge on the tribunal
designated for this function.
595
The judge has access to the classified information but may not
disclose it. They review the case on the grounds set out at
paragraphs 571 and 572. The judge may put any potentially
prejudicial information other than the classified information to the
person for comment.
596
The claimant may have “special counsel” who has access to the
classified information, and can make representations to the decisionmaker on behalf of the claimant (but cannot disclose it to the
claimant).
597
In this case, the judge decides that the person is not a refugee
declines the appeal.
Benefits and costs
132
598
This approach would help to ensure that refugee/protection status is
not given in error, or without full consideration of the facts, due to
information being withheld from the decision-maker. It would help
ensure that protection provisions are not abused.
599
Importantly, this approach allows the use of classified information to
be impartially reviewed by the judiciary. This special consideration by
an independent person of high standing provides assurance that the
process will be well scrutinised. Using a judge from the independent
immigration and refugee tribunal provides confidence that the person
will also have the best possible knowledge and expertise in refugee
law.
600
This approach would establish a process that would be streamlined
and is most likely to meet the objective of efficient decision-making.
The process outlined would only be initiated where open-source
confirmation of the information was unavailable. This would ensure
maximum transparency in immigration decision-making and keep
the need for appeals to a minimum.
601
As with the proposals under Sections 9.1 and 9.2, decisions made
under the new process could be contentious. Judicial challenges are
likely the first times it is used.
132
9.3 Key question
1
Do you support the proposal to allow the use of classified information in
refugee/protection determinations with appeals heard by a judge of the
independent immigration and refugee tribunal?
133
133
SECTION 10: COMPLIANCE AND ENFORCEMENT
Scope of section
10.1
What powers do immigration officers need to monitor and enforce
compliance with the Immigration Act?
10.1.1 What provision should there be for requiring organisations to provide
information to assist with an immigration investigation?
10.1.2 Should immigration and customs officers have the power to
temporarily detain a person pending the arrival of Police?
10.1.3 Should immigration officers have the same powers of entry and
search as Customs and Police have in the immigration context?
10.2
134
What provisions are required to deal with the immigration status of a person
who is in New Zealand unlawfully?
602
The immigration system enables people to enter and stay in the
country for their benefit and the benefit of New Zealand. At the same
time, it enables the government to ensure the safety and security of
New Zealand in a challenging global environment. One of the
greatest challenges is ensuring that appropriate risk management
and enforcement of immigration laws are not at the expense of
facilitating genuine migrants and visitors.
603
New Zealand needs to be able to manage the immigration system in
a fair, efficient and effective way. We need to be able to facilitate
entry to New Zealand and the ability of people to undertake certain
activities, such as work or study. At the same time, migrants and
visitors must obtain their permit legitimately and must comply with
the rules of their permit. They must abide by New Zealand law (just
as any New Zealander must) and leave before their temporary
permit expires.
604
As outlined in Section 3: Purpose and principles, the government
needs to be able to maintain the integrity of the immigration system.
There are clear expectations that the Department of Labour will be
able to:
•
locate people who are in New Zealand unlawfully
•
identify people working or studying in breach of the conditions of
their permit
•
detect immigration fraud
•
take appropriate enforcement action against these people (such
as removal, revocation of permits and prosecution of offences),
and
134
•
605
7
take corrective action to remedy minor infringements against the
Immigration Act 7 .
This section considers the powers needed to enable the government
to meet the expectations of managing a fair, efficient and effective
immigration system. It looks specifically at how to ensure that noncitizens comply with their responsibilities. To achieve these
objectives, the new legislation must do the following:
•
Enable the Department of Labour to monitor compliance with the
Immigration Act – Monitoring non-citizens’ compliance with the
Immigration Act allows the Department of Labour to make
informed decisions about a person’s immigration status. This
includes decisions about the possibility of granting a new permit
or changing the conditions of a permit. It also allows the
Department of Labour to make decisions about the appropriate
action to take in response to non-compliance with responsibilities.
•
Create appropriate incentives to comply with immigration rules
and to come forward in cases of non-compliance – There must be
incentives for a person in breach of their permit conditions to
come forward and have their position reconsidered. People in
breach often live “underground”, or outside the system. Driving
people “underground” is of limited benefit to New Zealand. It may
encourage criminality or the avoidance of social support (such as
healthcare for the family and education for young children).
•
Acknowledge the need for both facilitation and enforcement – The
legislation needs to protect New Zealand’s best interests while
not imposing on the law-abiding majority who engage with the
immigration system.
More serious criminal offending that may impact on an individual’s immigration status is usually
dealt with by Police and the justice system, in the first instance.
135
135
10.1
What powers do immigration officers need to monitor and enforce
compliance with the Immigration Act?
10.1.1 What provision should there be for requiring organisations to provide
information to assist with an immigration investigation?
606
607
Access to information, especially address information, is essential for
monitoring immigration compliance. This subsection considers:
i
in which circumstances immigration officers require address
information, or information on non-compliance with permit
conditions, to continue an investigation, and
ii
which organisations should be required to provide information to
immigration officers in such circumstances.
This subsection considers three scenarios concerning locating and
investigating people who may be liable for expulsion because they:
•
have stayed in New Zealand beyond the expiry of their permit
•
are breaching permit conditions (such as working on a visitor
permit), or
•
may have obtained their refugee status or permit through fraud
or misrepresentation.
Status quo
608
The Privacy Act 1993 generally requires that personal information
should only be disclosed to another person or agency in certain
circumstances. In particular, it allows information to be disclosed to
maintain the law.
What does the Privacy Act allow?
609
The Privacy Act 1993 allows information held by a government
agency to be disclosed to another government agency where
necessary to avoid prejudice to maintenance of the law. It therefore
allows information to be given to the Department of Labour for
investigations into people who may not be fulfilling their immigration
responsibilities.
610
The Immigration Act gives immigration officers the power to require
information from organisations (not limited to government
departments) listed in Schedule 1 of the Act. The information that
can be required is limited to information about:
611
136
•
the location of the person, or
•
the name of a person living at an address who is suspected of
being in New Zealand unlawfully.
This power is exercised on a case-by-case basis in relation to people
suspected of being in New Zealand unlawfully. The Immigration Act
also gives immigration officers the power to inspect:
136
•
registers and/or lists held by accommodation providers (such as
hotels or motels) that are believed to have information that might
help them find a person who is in New Zealand unlawfully, and
•
wage and time records held by employers that may relate to
people who have stayed in New Zealand longer than their permit
allowed, or those working unlawfully.
Schedule 1 of the Immigration Act
612
613
614
Schedule 1 sets out the following organisations that may be required
to provide immigration officers with information when requested:
•
Housing New Zealand
•
New Zealand Post Ltd
•
Telecom Corporation of New Zealand Ltd
•
The department responsible for the Social Security Act 1964
•
Local authorities
•
Land Transport Safety Authority
•
Power supply authorities
•
Energy companies under the Energy Companies Act 1992, and
•
Clear Communications.
The information that may be required includes:
•
customer names and addresses
•
postal delivery records, and
•
telephone subscriber records, other than confidential listings.
Officers do not have any powers to require information to assist
them to locate a person here lawfully, but who may have obtained
that status through fraud or misrepresentation. In order to
investigate such cases, the officer must generally first locate the
person and give them an opportunity to respond.
What is working well?
137
615
Schedule 1 of the Immigration Act is useful if the agency holds
information about the person being located. Immigration officers also
rely on information supplied in immigration applications and by
informants to detect and locate people who are not complying with
their immigration responsibilities.
616
Current enforcement work by the Department of Labour results in
approximately 1,200 people being removed from New Zealand each
year, and a further 1,200 (approximately) leaving voluntarily each
year. These are people who are in New Zealand unlawfully. Their
permits may have expired, or their permit may have been revoked
for breaching their permit conditions (for example, they may be
working without an entitlement to work).
617
In immigration investigations regarding possible fraud, giving a
person the opportunity to respond to a case against them ensures
137
that immigration investigations are balanced and fair. It supports the
principle of a fair immigration system and incorporates natural
justice protections into the process. It also allows officers to make
effective decisions based on all the facts and information available.
What are the problems/opportunities?
138
618
Immigration officers have the power to require only basic contact
details from the organisations listed in Schedule 1 of the Immigration
Act. This limitation restricts the pool of information available. A
number of industries that may hold information about individuals are
not represented in the list in Schedule 1. For example, the list does
not include insurance organisations, Clear Communications no longer
exists, and other telecommunication companies, such as Vodafone,
are not on the list.
619
From time to time, government agencies are unclear as to whether
the Privacy Act allows them to disclose information to the
Department of Labour. There is an opportunity to consider adding
further government departments to the list currently in Schedule 1
to provide that clarity.
620
Further, while immigration officers may access wage and time
records when investigating employment, there is no right to access
or copy additional material that relates to a person’s employment
activity. The inability to access and retain useful information means
that often investigations are unable to proceed.
621
Difficulties such as these reduce the ability of the Department of
Labour to take timely and appropriate action against those who do
not fulfil their immigration responsibilities. They create incentives for
people to not comply with the requirements of their permit.
622
Locating people who are subject to investigations for immigration
fraud is also very difficult without a power to obtain address
information. When a person cannot be located, the process of
undertaking a balanced and fair investigation is undermined. It
makes it difficult to ensure a person’s rights to natural justice are
protected. The Department of Labour can be aware of cases of
immigration fraud but can be unable to investigate thoroughly. The
ability to locate people that are the subject of immigration
investigations would better support the integrity of the immigration
system.
623
The numbers of permit revocations as a result of immigration
investigations each year are very small (only eight in 2004/05). They
do not reflect the number of cases where the Department of Labour
has evidence of people failing to comply with their immigration
responsibilities or committing fraud. Being unable to investigate
immigration offences undermines the ability of the Department of
Labour to support a fair immigration system that works for New
Zealand’s benefit.
138
What do other countries do?
624
In Australia, immigration officers have the power to require private
sector groups to provide information (such as address or contact
information) and documents that assist in locating an unlawful noncitizen. In addition, Australia’s legislation provides for the granting of
an entry and search warrant to allow officers to find information
related to the whereabouts of unlawful non-citizens.
625
Australian immigration officials do not investigate immigration fraud
cases. Such investigations are left to Police, who have wide ranging
powers. Australian legislation specifically excludes the ability of
immigration officers to require information about non-citizens
lawfully present in Australia.
626
The United Kingdom (UK) has various search, entry and arrest
powers for immigration officers locating individuals who are
overstaying the length of a valid permit, or are otherwise in breach
of immigration law. The legislation enables immigration officers to
search for and seize personnel records following the arrest of a
suspected immigration offender.
627
In Canada, immigration officers can apply for warrants to obtain
information on the location of people wanted on an immigration
arrest warrant. They can also request warrants to find information
relating to an inadmissibility investigation.
Proposal
628
Individual privacy is an important value that is protected by the
Privacy Act and recognised in common law. The Privacy Act sets out
that importance of protecting individual privacy may be outweighed
by the need to uphold New Zealand’s law.
629
For the reasons noted above, the status quo is not considered
adequate. The approach presented below is based on making
improvements to existing powers and is preferred.
A better-targeted power to require information
630
631
The new Immigration Act would provide for officers to require
address information, or information on non-compliance with permit
conditions, to locate and investigate people who may be liable for
expulsion because they:
•
have stayed in New Zealand beyond the expiry of their permit
•
are breaching permit conditions (such as working on a visitor
permit), or
•
may have obtained their refugee status or permit through fraud
or some kind of misrepresentation.
Organisations that may be required to provide address information
would be better targeted to include:
•
139
industry groups rather than specific companies, for example,
“telecommunications providers” could be listed as an industry
139
group rather than Telecom or Clear Communications being listed
specifically, and
•
more industry groups that are likely to hold information, for
example, “finance and banking providers” and “insurance
providers” could be listed as key industry groups.
632
Some government agencies could also be included, to provide clarity
and transparency about when it is acceptable to disclose an
individual’s information. In practice, immigration officers would
contact the minimum number of agencies required to locate the
person.
633
Employers may also be required to provide:
634
•
address information
•
time and wage records, and
•
information relating to unlawful employment or non-compliance
with permit conditions.
This would allow an officer to require a broader range of information
than the wage and time records. The legislation would require that
information be sought only where there is a reasonable suspicion
that an individual is not complying with their immigration
responsibilities. The power could not be used to indiscriminately
investigate people. The powers would have to be exercised in a
manner that is consistent with the New Zealand Bill of Rights Act,
and exercise of the powers would be subject to judicial scrutiny.
Benefits and costs
140
635
This approach is likely to improve the ability of immigration officers
to locate people unlawfully in New Zealand. It will allow officers to
require information about people who are not fulfilling their
immigration responsibilities or who have obtained their permit
through fraud or misrepresentation. The approach would allow the
Department of Labour to better maintain the integrity of the
immigration system to the benefit of all New Zealanders.
636
Extending the current powers to require information to cover more
organisations would improve access to relevant up–to-date
information on the location of people unlawfully in New Zealand. This
would increase the likelihood of rapid detection and reduce
incentives for a person to remain in breach of their permit
conditions. The ability to require information, where there is a
reasonable suspicion that an immigration offence has been
committed, would increase the ability of officers to conclude
investigations efficiently and effectively.
637
This proposal would allow officers to locate more people who are the
subject of an immigration misrepresentation or fraud investigation.
This approach would see more cases successfully proceeding through
the existing investigation processes.
140
638
This approach would help ensure the person being investigated could
be located and given the opportunity to respond to potentially
prejudicial information. It would allow officers to conduct
investigations and make decisions effectively and efficiently, and it
would support the principles of a fair immigration system.
639
Widening the power to require information may increase the number
of organisations incurring compliance costs. The cost incurred is
likely to be very small, for example, the cost of staff time to answer
a phone call and query a computer database.
640
Requiring some government agencies to provide address or
compliance information on request would address concerns held by
some agencies around their ability to release information under the
Privacy Act. Careful consideration about the agencies included would
be necessary. There is a risk that the requirement to provide
information may prevent effective service delivery in some
government agencies.
641
Health and education agencies and the Department of Internal
Affairs’ Birth Registry information are not currently being considered.
The integrity of the birth register may be at risk if the Department of
Internal Affairs was required to provide information from the
register. People unlawfully in New Zealand may fail to register the
birth of their children if they think the information will be used to find
them. This may have a significant adverse consequence for the child
and it is not the intention of the government. Similarly, access to
education and health records may have undesired consequences
(such as denying children access to education and healthcare).
How would this proposal make a difference?
Example 1
642
141
According to Department of Labour records, Ms A has overstayed her
permit. Ms A no longer lives at the address held by the department.
The department requests her address from Telecom and a number of
power companies, but they have no record of her. Under the status
quo, the investigation would stop because the immigration officer
has no further power to request address information. Under the
proposal, the immigration officer requests her address from three
additional organisations. The third additional organisation is able to
provide her current address and Ms A is located.
141
Example 2
643
An officer is investigating a refugee who officers have a reasonable
suspicion may have used fraud to obtain refugee status. Under the
status quo, the officer may not require address information from any
organisation. Under the proposal, they could require address
information from a range of organisations that may have this
person’s current address. This would allow the officer to locate the
person and present them with the case.
Alternatives considered
644
Alternative options to this approach would be to:
a) enable information matching with employers and agencies, and
b) create a power to require information about a person’s location
from all organisations or agencies.
645
The potential increase in information that may come from
information matching is likely to be unmanageable. For example, an
information matching scheme may bring up 5,000 names in one hit.
The scale of the intrusion into the privacy of those people is unlikely
to be warranted if the department cannot actually use the
information. The Department of Labour would prefer to continue to
collect information in relation to an individual who is actually being
investigated.
646
The need for a power to require information from all organisations or
agencies has been dismissed. Some government agencies have this
power (for example, under the Social Security 1964 and the Tax
Administration Act 1994). The Department of Labour does not
believe it requires the ability to access information from all
organisations or agencies to efficiently and effectively conduct
investigations in relation to unlawful employment or non-compliance
with permit conditions.
10.1.1 Key questions
1
2
142
Should officers be able to require information to assist with investigations
regarding those who:
•
have stayed in New Zealand beyond the expiry of their permit
•
are breaching permit conditions (such as working on a visitor permit), or
•
may have obtained their refugee status or permit through fraud or
misrepresentation?
Do you agree with the proposal to extend the list of organisations (to broader
industry groups) that may be required to provide information?
142
10.1.2 Should immigration and Customs officers have the power to temporarily
detain a person pending the arrival of Police?
647
This subsection considers the possibility of creating a power to allow
immigration and Customs officers to detain a person while they wait
for Police to arrive. Further provisions on detention are discussed in
Section 12: Detention.
Status quo
648
Immigration officers may currently require that a person be detained
or arrested by Police on their behalf for a number of immigration
reasons. For example, a person may be detained while their removal
from New Zealand is being arranged. A person could also be
detained if they were refused entry to New Zealand at the airport
and were waiting to depart.
649
Immigration officers do not themselves have the power to detain
people or to make arrests for immigration reasons. Rather, under the
Immigration Act, the New Zealand Police (Police) undertake these
duties on behalf of immigration officers. Police regularly undertake
detention and arrest where people are in New Zealand unlawfully
and have been served with a removal order.
650
The New Zealand Customs Service (Customs) also regularly
exercises its own authority to detain persons for Customs purposes
at the airport. However, Customs does not have authority to detain
persons for immigration purposes.
What is working well?
651
The use of Police to detain or to make an arrest for immigration
purposes is desirable where feasible. Police have clear, wellexercised and proven powers of arrest. Police have the training and
technical and logistical support for their powers.
652
Decisions to detain are made after careful consideration of the
circumstances and an evaluation of the risk that the person may
abscond.
What are the problems/opportunities?
143
653
Police are seldom present at the exact time a decision is made by an
immigration officer to detain a person. Under the Immigration Act,
an immigration or Customs officer has no power to detain the person
until Police arrive.
654
There may be a period of time during which the immigration officer
cannot prevent the person from leaving. At an international airport,
this period of time may be short.
655
There may also be longer periods of time, for example, at a port,
where it takes time for Police to come and assist immigration
officers. The length of time may mean that the person who may be
detained has time to leave.
143
656
It is impractical and unrealistic to expect Police to be immediately
present for all immigration officer decisions, in all locations
throughout New Zealand. A reasonable period of delay between
making the determination that detention is required and the arrival
of Police to undertake detention or make an arrest would vary from
minutes in the airport environment to, potentially, hours in more
remote locations.
What do other countries do?
657
Both the United States and Canada respectively have a single agency
charged with immigration and Customs border duties. Officers of
these agencies have the power of arrest and detention.
658
Australian immigration officers, Customs officers and Police officers
have powers to immediately detain a person who is present in
Australia unlawfully. An important difference to note between
Australia and New Zealand is that Australia has a mandatory
detention regime for all people unlawfully in the country.
659
In the UK, immigration officers have the power to arrest a person
who is liable for detention or removal from the UK for a variety of
reasons. For example, immigration officers can arrest a person who
is, or is reasonably suspected to be, an illegal entrant. A warrant is
not required for these arrests.
Proposal
660
Two options are presented here. Option A would maintain the status
quo. Option B would provide certain delegated immigration and
Customs officers with a limited power to detain a person pending the
arrival of Police, and is preferred.
Option A – Status quo
661
The current provisions where only Police have powers to detain
people for immigration purposes would be retained.
Benefits and costs
662
Maintaining the status quo would ensure that detention is managed
by those with current proven expertise, facilities and support.
However, where Police are unable to respond immediately, people
would be free to leave the area in order to avoid detention or arrest.
This situation undermines the integrity of the immigration system. It
reduces the effectiveness of the government’s ability to make
decisions about who may enter and stay in New Zealand.
Option B – Create a limited power to detain
663
144
The legislation would enable certain delegated immigration officers
and Customs officers, having determined the need for an individual
to be detained for immigration purposes, to detain a person until a
Police officer can arrive. The purpose of this power of detention
144
would only be to prevent the person leaving the area prior to the
arrival of Police.
664
The power of detention would be limited. The conditions in place
would include that:
•
the detaining officer was a delegated immigration detention
officer or Customs officer
•
the delegated officer had received appropriate training and had
appropriate support
•
the health and safety of the person to be detained and the
immigration detention officer remained paramount
•
the delegated officer would need reasonable grounds
suspecting the person being detained would be a flight risk
•
the detention would be for a maximum of four hours or until
Police became involved, and
•
the detention occurred only in exceptional circumstances where
Police were not immediately available to assist immigration
officers.
for
665
Procedural guidelines would establish the situations where a
delegated officer could use their power to detain. Limiting the use of
this power to exceptional circumstances, where Police were not
immediately available to assist, would recognise the benefits of the
status quo (where detention is done by people with proven expertise
and support) and build on them.
666
Training would ensure the rights of the person to be detained were
protected and that the health and safety of the person and the
officer were of primary importance. The Immigration Act could
provide for delegated officers to use reasonable force only if it was
safe and necessary to do so.
667
The power of detention would only be used for the purpose of
preventing the person from leaving the area. The power would not
be used for the purpose of building or completing an immigration
investigation, or for questioning the person who would be subject to
the detention.
668
This power of detention would align with similar powers accorded to
other government officials. For example, it would be similar to
Corrections officers’ powers of detention under the Corrections Act
2004.
How would Option B make a difference?
Example 1
669
145
An immigration officer has been given information that Mr B is flying
from Auckland to Christchurch this afternoon. Mr B has lived in New
Zealand unlawfully on a number of occasions in the past and under
different identities. This person has evaded removal for a long time.
145
670
The immigration officer arranges for Police to come to Auckland
airport at the appropriate time so that Mr B may be detained. Mr B
does not arrive, however, and Police have to leave. As the
immigration officer is leaving, he meets Mr B.
671
Under the status quo, the immigration officer has to contact airport
Police to ask them to detain Mr B. It is a busy time at the airport
and, by the time Police arrive, Mr B has left the airport. Under Option
B, the immigration officer could hold Mr B until Police arrive.
Example 2
672
Immigration officers have located an overstayer in a rural area who
has lived in New Zealand unlawfully on a number of occasions in the
past and under different identities. This person has evaded removal
for a long time.
673
Under the status quo, the immigration officers have to wait for Police
to arrive and risk the individual taking flight. Under Option B, the
immigration officers are able to take the person to the nearest Police
station.
Benefits and costs
674
This option would ensure that a person who has been determined to
require detention would not leave the area if Police were not
immediately available. Guidance and training on how to manage
people who are being detained and on the protection of their rights
would be undertaken by immigration and Customs officers delegated
with the power to detain people.
675
Customs already operates a temporary detention power under the
Customs and Excise Act 1996 and has existing procedures and
training around this type of provision which could be adapted.
676
This option would enable the Department of Labour to regulate more
effectively the removal of people from New Zealand in New Zealand’s
interests. It would contribute to the principle of efficient processes
and effective decision-making.
10.1.2 Key question
1
146
Should delegated immigration and Customs officers be able to detain people
liable for detention and/or arrest for immigration purposes until Police can
become involved (for a maximum of four hours)?
146
10.1.3 Should immigration officers have the same powers of entry and search
as Customs and Police have in the immigration context?
677
This subsection considers extending to immigration officers the
powers of entry and search that are currently given to Police and
Customs officers undertaking immigration duties.
Status quo
678
The Immigration Act confers powers of entry and search on Police
and Customs officers undertaking immigration duties. No such
powers are granted to immigration officers.
679
The Immigration Act gives Police powers to enter any building or
premises for the purpose of serving or executing a removal or
deportation order, or to serve notice of a change in expiry date for a
limited purpose permit.
680
Under the Immigration Act, Police and Customs can enter and search
any aircraft, ship or other form of sea-borne vessel for the purpose
of detecting an immigration offence.
What is working well?
681
Police and Customs officers have the expertise to enter and search
premises to undertake immigration duties. When they are available,
the current system is desirable.
What are the problems/opportunities?
147
682
While both Police and immigration officers are granted the power to
serve removal or deportation orders, only Police officers may enter a
premises to do so. This limits the effectiveness of immigration
officers carrying out legitimate immigration duties.
683
Department of Labour and Police resources are not
effectively or efficiently in this situation. There
considerable period where the immigration officer is
Police to arrive to enter premises. Police may also
priorities which prevent them from arriving quickly.
684
Police and Customs officers currently have powers to search aircraft
or ships for stowaways, or to detect or prevent an immigration
offence. Immigration officers do not have these powers.
685
Search for stowaways and ship-jumpers, and for the documentation
they may carry in their cabins and luggage, must occur swiftly if it is
to be effective. It does not take long for people to destroy
documentation or to leave a ship or sea port.
686
Police and Customs resources are increasingly being stretched by
competing demands for officers’ time. Officers of both agencies have
their own functions to fulfil and cannot always give priority to
immigration duties.
687
The time between an immigration officer requiring the search or
entry of an aircraft or ship and the arrival of Police or Customs
being used
may be a
waiting for
have other
147
means that the immigration system and the immigration officers are
not always working efficiently and effectively.
What do other countries do?
688
In the United States, an appropriately trained and designated
immigration officer can enter and search an aircraft, ship or other
carrier without a search warrant. They can also search private land
up to 40 km from the border.
689
The UK allows immigration officers to enter and search premises
under warrant for the purpose of locating either a person illegally
present in the UK or a person who may be harbouring such a person.
690
Australian immigration law empowers the Secretary of the
Department of Immigration and Multicultural Affairs to grant search
warrants that allow immigration officers to enter and search aircraft,
ships or other carriers along with private land and property. They
have the power to use reasonable force as necessary to conduct the
entry and search.
691
Canadian immigration law allows immigration officers to obtain a
warrant to search and enter a place for immigration investigations.
The safety of the immigration officer and other parties is considered
in all entry and search operations and clear operational policy and
guidelines support entry and search powers.
Proposal
692
Two options are presented here. Option A would maintain the status
quo. Option B would provide immigration officers with the same
powers of entry and search that Police and Customs officers have for
immigration purposes. It is the preferred option.
Option A – Status quo
693
The presence of Police (or, in certain situations, Customs) would
continue to be required at all immigration operations requiring entry
and search.
Benefits and costs
148
694
Maintaining the status quo would recognise the expertise of Police
and Customs in undertaking lawful entry and search of premises. At
times, immigration operations will continue to be given low priority
by Police. This means that, in many circumstances, the ability of
immigration officers to issue removal orders would be hindered and
inefficient. In some circumstances, immigration officers may not be
able to carry out their duties successfully.
695
The status quo would continue to compromise the Department of
Labour’s ability to maintain the integrity of the immigration system.
It would continue to hinder effective decision-making and prevent
efficient process being built into the immigration system.
148
Option B – Confer the same entry and search powers on immigration
officers
696
The legislation would allow immigration officers to exercise the
powers of entry and search currently available to Police and Customs
in carrying out specific immigration duties. This power could only be
used to:
•
enter and search premises to serve a removal order, and/or
•
enter and search aircraft or ships to detect an immigration
offence or prevent it being committed.
697
In the first circumstance, an immigration officer would need to have
a reasonable belief that the person who is the subject of a removal
order was at a particular place. This “reasonable belief” would bear
the same burden of proof that is currently required for Police to
attend a place to enter and search. Immigration officers would not
be able to enter and search a place without good reason. The entry
and search would only be carried out by immigration officers where it
was considered appropriate and safe to do so.
698
In the second circumstance, the immigration officer would need to
have a reasonable belief that an immigration offence had been or
was about to be committed, before entering and searching an
aircraft or ship. They would only enter and conduct a search when
Police and/or Customs officials were unavailable to respond quickly
and the suspected offence required a rapid response from New
Zealand authorities.
699
In both cases, clear operational guidelines and training on the use of
the entry and search power would be established. Guidelines and
training would ensure that the power was used appropriately and
effectively by immigration officers.
700
Option B builds on the status quo that recognises the expertise of
Police and Customs in undertaking lawful entry and search of
premises. In addition to the limited new powers for immigration
officers, Police and Customs would retain their existing powers.
How would Option B work in practice?
Example 1
701
149
This power would not be used routinely. For example, where an
immigration officer was intending to serve a removal order and knew
the person was likely to be at a particular address, they would
arrange for Police to attend.
149
Example 2
702
This power could be used where an immigration officer is presented
with an unexpected opportunity to uphold compliance with New
Zealand’s immigration laws. For example, immigration officers at a
sea port are informed that a number of ship passengers are about to
destroy their documentation and falsely claim asylum in New
Zealand.
703
Police and Customs officers are unavailable to enter and search the
ship. Under the status quo, the documents would be destroyed.
Under Option B, the immigration officers may be able to enter the
ship and prevent the documents from being destroyed.
Benefits and costs
704
If immigration officers were able to use the entry and search powers
that Police and Customs have in the current Immigration Act, they
would have greater ability to uphold the integrity of the immigration
system. Their decision-making powers would be effectively
supported, and more efficient processes could be developed.
705
Not having to rely on Police availability could result in an increase in
the number of entry and search operations undertaken by
immigration officers. This may see a corresponding increase in the
level of effective action taken against those who are in breach of
their permit conditions. The entry and search power could be used in
situations where a delay may mean that an offence is committed or
remains undetected. This option would support an immigration
system that works for New Zealand’s interests and contributes to
efficient processes and effective decision-making.
706
In addition, this option would provide consistency in the legislation
on who may undertake immigration functions. Entry, search and
detention powers are already available to both Police and Customs
officers undertaking immigration duties. The approach outlined
above would allow immigration officers to undertake all the
compliance work until Police could become involved.
10.1.3 Key question
1
150
Should the existing powers of entry and search that Police and Customs have in
the immigration context be conferred on immigration officers?
150
10.2
What provisions are required to deal with the immigration status
of a person who is in New Zealand unlawfully?
707
This subsection considers what powers are required to deal with the
immigration status of a person who is in New Zealand. The general
requirement that a person must be lawfully present in New Zealand
to apply for a permit ensures that New Zealand is able to regulate
entry and stay. However, discretionary ability to waive this
requirement is also useful. It ensures that New Zealand can allow a
person to stay where this is in New Zealand’s interests.
Status quo
708
A person must be lawfully present in the country to be able to apply
for a permit. The current Immigration Act provides the Minister of
Immigration (and delegated immigration officers) with the discretion
to grant a permit of any type to a person here unlawfully. Individuals
have no right to apply for such a permit, and the Minister of
Immigration and immigration officers are not required to consider a
request or to give reasons for a refusal.
709
This discretion is not bound by policy. Whether a person meets
current policy is relevant, but not a deciding factor. The individual
merits of any case are considered against the public interest.
What works well?
710
This provision provides a positive incentive for well-settled people
who are in New Zealand unlawfully to seek lawful status. It allows for
discretionary decisions to ensure immigration outcomes that meet
New Zealand’s needs. It works in the bests interests of New
Zealanders and migrants.
711
This discretionary power enables people who may have genuinely
forgotten to renew their permit before it expired to regain lawful
status. For example, in 2004/05, this power was used to issue over
16,000 permits. These included:
712
•
7,000 student permits (to students who had not applied for a new
student permit before their previous one expired)
•
4,000 work permits
•
5,000 visitor permits, and
•
35 residence permits.
The core ability for the Minister of Immigration and delegated
immigration officials to grant permits to people in New Zealand
unlawfully allows people to remain in New Zealand, where this is in
New Zealand’s interests, and there are no proposals to change it.
What are the problems/opportunities?
713
151
Some people have a valid permit when they lodge an application for
a further permit, but the permit expires while their application is
151
being considered. This situation presents a number of difficulties
including:
•
the individual’s immigration status becomes “unlawful”, triggering
liability for removal and the 42-day appeal period against
removal
•
the person breaches the Immigration Act if they continue
studying or working
•
if the application is declined, the person is not entitled to a
reconsideration
•
the person may become ineligible for healthcare
•
an employer breaches the Immigration Act if they continue to
employ a person without authority to work, and
•
an education institute breaches the Immigration Act if they
continue to enrol a student whose authority to study has expired.
What do other countries do?
714
715
Australia has a range of “bridging visas” available, depending on how
a person becomes unlawful. Examples include the following:
•
An automatic visa for people who arrived lawfully and apply for a
subsequent visa. If their visa expires while their application is
being decided, they are automatically issued a bridging visa.
Travel and work rights are available.
•
A visa for people who self-identify their unlawful status (generally
within 28 days of becoming unlawful), provided that they
originally arrived lawfully. They have no entitlement to travel and
it is difficult to get work rights.
Canada can grant a temporary resident permit where “justified in the
circumstances”. Examples include where people who have
inadvertently become unlawful have a good student record.
Temporary residence permits have specific conditions attached and
can be cancelled at any time.
Proposal
716
Two options are presented here. Option A would maintain the
discretionary ability to grant a permit to a person unlawfully in New
Zealand, which is regarded as a minimum requirement to meet the
objectives of the review. Option B also retains this core discretion to
grant a permit to a person unlawfully in New Zealand. In addition, it
would allow automatic permit extensions, in cases where a permit
expires while an application for a further permit is being considered.
Option B further contributes to the objectives of this review and is
preferred.
Option A – Status quo
717
152
The Minister of Immigration and delegated immigration officers
would continue to be able to grant permits to any person unlawfully
in New Zealand on a case-by-case basis. People whose permit
152
expires while their application for a further permit is being
considered would be granted a permit (or not) under normal
provisions.
Benefits and costs
718
The status quo provides flexibility to deal with unlawful status. The
discretionary ability to grant a permit to a person unlawfully in New
Zealand is useful. There will always be instances where the
unexpected occurs, and it is impossible to cover all scenarios through
policy. It is also “future proofed”, in that it can be used to
accommodate government objectives at any given time. This
provision is not policy bound and does not create rights for those
who may potentially benefit from it. This has the benefit of limiting
the risk of judicial action against the Department of Labour.
Option B – Status quo plus permit extensions for people who are
lawfully in New Zealand when they lodge their application
719
Option B retains the discretionary power for the Minister of
Immigration and delegated officials to grant a permit to a person in
New Zealand unlawfully.
720
In addition, Option B allows permits to be extended where a person
lawfully in New Zealand lodges an application for a further permit.
The original permit would only be extended until the date the new
application is decided. At that point, if the application is declined, the
person would become unlawfully present in the country. The power
to extend a permit would be discretionary to ensure that immigration
officers could refuse any frivolous or delaying applications.
Benefits and costs
153
721
This option would contribute to the principle of fairness in the
immigration system as well as ensuring efficient processes for
dealing with this situation. Permit extensions would prevent a person
from being unlawfully in New Zealand while a new application is
processed. It would not predetermine the outcome of their new
application. This would be similar to Australia’s approach.
722
This option would retain all the benefits of the status quo. It would
also introduce a new measure to help create an immigration system
that is more effective and efficient. It would better facilitate the stay
in New Zealand of tourists, workers and students who can contribute
to growing New Zealand’s economy and building strong
communities.
723
This option would eliminate the problems outlined in paragraph 713
for those people who become unlawful while their application for a
new permit is considered. In many cases, this issue is caused by
delays in processing applications for which the applicant should not
be unfairly penalised.
153
724
The risks of this option include reduced incentives to apply for
further temporary permits in a timely manner, the lodging of
frivolous applications to extend a person’s stay and the granting of
extensions to people who may no longer meet policy criteria such as
character requirements. These risks could be mitigated by:
•
the permit extension being discretionary, and
•
the Department of Labour prioritising high-risk applications that
are likely to be declined, to reduce the period of time that the
person remains in the country lawfully.
10.2 Key questions
1
Do you agree that the Minister of Immigration and delegated officials should
continue to be able to grant permits to people in New Zealand unlawfully?
2
Should permit extensions be introduced for people whose permits expire while
their application for a further permit is being considered?
154
154
SECTION 11: THE USE OF BIOMETRICS
Scope of section
11.1
Should immigration officers be able to require, use and store certain types of
biometric information, and request the voluntary provision of other types of
biometric information?
725
This section considers whether legislation should enable immigration
officers and refugee/protection status officers to:
•
require, use and store certain types of biometric information
(such as photographs) to assist in immigration and refugee
decision-making, and
•
request the voluntary provision of other types of biometric
information (such as DNA) in a more limited range of
circumstances.
726
Biometric information is one tool that can assist decision-makers to
verify identity and, in some cases, family relationships. Using
biometric information on a routine basis could help create a more
facilitative immigration system, by allowing more efficient and
effective decision-making for the majority of applicants. It would also
create a more robust system for preventing identity fraud and
detecting persons on international watch lists.
727
This section discusses the use of biometric information in regard to
people requiring permission to enter or remain in New Zealand only.
Other government agencies and inter-governmental forums are
exploring the collection and use of biometric data in other areas,
such as in the context of border management and travel. The
Department of Labour is participating in these discussions to ensure
that any opportunities for synergies are assessed and that the best
outcomes are delivered. The options in this section are consistent
with other government work around biometrics.
What is biometric information?
155
728
Biometric information is information about distinguishing biological or
behavioural features of an individual. Facial recognition is currently
the most widely used form of biometric information. It simply
requires a person’s photograph. Fingerprinting and iris scanning are
the other internationally acceptable forms of biometric information
currently in use.
729
“Using biometric information” usually refers to identifying or verifying
the identity of an individual by comparing a biometric sample (such
as a photograph or fingerprint) against a biometric template, or
“reference template” (such as stored photographs and fingerprints).
155
730
156
DNA can also be used as a biometric identifier. This section discusses
using DNA and age verification tests in a very limited range of
situations where they are provided voluntarily by a person. (Dental
tests are the most commonly used tests to verify the age of a
person).
156
11.1
Should immigration officers be able to require, use and store
certain types of biometric information, and request the voluntary
provision of other types of biometric information?
Status quo
731
When applying for a visa or permit, an applicant needs to provide
sufficient information to allow the immigration officer to determine
their identity as well as other factors affecting the issue of the visa or
permit. All applicants supply photographs and signatures when
making an application.
732
The Immigration Act allows immigration officers to require evidence
of identity where an offence is suspected and where a person is
suspected of being in New Zealand unlawfully. Immigration officers
may also demand an arriving person’s passport or certificate of
identity.
733
Refugee status officers may require a refugee status claimant to
provide or allow the taking of fingerprints or photographs, to
ascertain or confirm the claimant’s identity or nationality.
734
There is no immigration legislation on the use of DNA. Operational
policy sets out guidelines for immigration officers (but not refugee
status officers) to request DNA as a verification tool. This policy
allows applicants to help verify their case by supplying DNA. No
negative inference is allowed to be taken from not supplying DNA
when requested, but, without it, sometimes facts are not provable
and the application would have to be declined. For example, a DNA
test may prove that individuals are related members of a family
where there is no other proof of this.
735
While there is nothing inhibiting refugee status officers or members
of the Refugee Status Appeals Authority from requesting DNA or age
verification tests, there are no policy or legislative guidelines on this.
Refugee status officers may determine a claim on the basis of the
information, evidence and submissions provided by the claimant. The
onus is clearly on the claimant to present their case (as case law on
this matter has reiterated).
What is working well?
157
736
Identifying people is a crucial element in facilitating the entry of
migrants and visitors that New Zealand wants and needs and
managing the potential risk presented by some individuals seeking to
enter New Zealand. Immigration control has long relied on biometric
information in passports, such as the photograph, which allows a
“face-to-passport” check of arriving passengers. Profiling higher-risk
applicants,
and
examining
passports
and
other
identity
documentation, allows some false or fraudulent documentation to be
detected.
737
Requiring the onus of proof to rest on immigration applicants and
refugee status claimants assists in creating robust, defendable
157
decision-making processes. In some cases, refugee claimants have
voluntarily provided age verification tests to assist with their claim.
Claimants also provide fingerprints on request, which can be a useful
mechanism for testing identity and credibility.
What are the problems/opportunities?
158
738
This review presents an opportunity to use technological
developments to make border checks and immigration applications
more quickly and effectively. At the same time, it would provide
greater assurance that identity fraud and persons posing risks to
New Zealand will be detected. Increasingly, travel documents are
becoming electronic and more sophisticated. The immigration system
does not currently have the ability to scan, store and use biometric
information contained in such travel documents for future checks.
739
This means that the Department of Labour cannot currently ensure
that a person entering New Zealand on a visa is the same person
that applied for that visa. The Department cannot ensure that a
person previously removed or deported from New Zealand or who
appears on alert lists, and who enters under a new fraudulent
identity, is detected. Investigations can eventually reveal some cases
of identity fraud, but these investigations are time- and resourceintensive. They are only undertaken where there is suspicion around
an application or an individual.
740
Improvements in document forgery and increasing identity theft has
led to more opportunities for individuals or organised groups to
circumvent New Zealand’s border controls. The Department of
Labour has identified many cases of individuals lodging multiple
refugee claims under different identities and people who had been
removed from New Zealand returning under new false identities.
741
Traditional reliance on paper-based identity documents appears to be
increasingly inadequate to manage identity fraud risks to New
Zealand. This is particularly true for the very high-risk individuals
who are on terrorist, Interpol and other criminal watch lists. Such
individuals seldom travel using their own, genuine travel documents.
742
New Zealand is entering into an increasing number of arrangements
to identify and prevent the fraudulent use of New Zealand passports
internationally. These arrangements involve the provision or
matching of passport information to prevent fraud. Such
arrangements include the Interpol lost and stolen passport system,
the Asia Pacific Economic Council’s Regional Movement Alert List
(RMAL) system and trans-Tasman agreements associated with the
Advanced Passenger Processing (APP) system.
743
The APP and RMAL systems use the Department of Labour’s
immigration systems to connect with, verify or store New Zealand
passport information to prevent the fraudulent use of New Zealand
passports internationally. Plans to enhance these arrangements
include biometric authentication. Legislation to enable the collection,
use and storage of certain biometric information would support New
158
Zealand’s contribution to these counter terrorism and anti people
smuggling/trafficking endeavours.
744
Establishing a person’s identity is crucial to maintaining an
immigration system with integrity, but is often problematic. Many
refugees or persons fleeing torture do not have identity documents
and, in such cases, home country verification is generally not
possible. On the other hand, many claimants attempt to obtain
refugee status through some kind of misrepresentation. Decisionmakers therefore require robust mechanisms for establishing identity
and credibility.
745
While the Immigration Act does not prevent immigration and refugee
status officers from requesting DNA, there is an opportunity for the
legislation to be more robust. There is also an opportunity to clarify
the ability to use and store photograph and fingerprint information.
Example 1
746
Mr B entered New Zealand three times between 1997 and 2002, on
three different passports bearing different identities. On the first
visit, he overstayed and was removed. He obtained a second visa
under a false identity, entered New Zealand, overstayed and was
again removed when detected.
747
Mr B obtained a third visa under a new false identity, entered New
Zealand, was located and prosecuted by the Department of Labour
on a number of immigration-related identity fraud offences and was
sentenced to 15 months in prison.
Biometrics
How could a biometric system work in an immigration context?
159
748
Typically, a biometric system begins with an enrolment process. This
takes place when a traveller applies for a visa or permit, crosses the
border, or makes a refugee claim. Each person has a biometric
sample captured. Biometric samples are captured by scanning
fingerprints, a photograph or an iris, or taking a photograph with a
live-capture digital image camera.
749
The image is then converted by an algorithm into a reference
template. The reference template consists of a string of numbers
that is unique to the biometric sample. The reference template may
be stored in a database, or in a document that the user controls. For
example, biometric passports contain the facial data of the passport
holder within a small chip embedded in the information page.
159
How can biometric systems be used during the enrolment process?
750
There are two typical uses for biometrics during the enrolment
process:
•
The applicant’s biometric template can be compared against one
or more biometric databases. This is an “identification” or a “oneto-many check”. This will determine whether the applicant is
known to any corresponding systems (for example, they hold a
passport under a different identity).
•
When the applicant collects their visa or permit (or presents
themselves for any step in the immigration process after their
initial biometric data is captured) their biometric data can be
taken again and verified against their original template.
751
If the image presented by the person meets a specified degree of
similarity with the reference template, the system considers the two
templates to “match”. For a match to occur, the degree of probability
and level of accuracy that the two templates are the same must be
very high.
752
These checks improve the quality of background checking on visa
and other travel document application processes and increase the
strength of the link between the visa or travel document and the
person who holds it.
How can biometric systems be used at the border?
753
160
There are also three typical applications for biometrics at the border:
•
Each time a traveller enters or exits a country, their identity can
be verified against the template created at the time their travel
documents were issued. This will ensure that the holder of a
document is the same person to whom it was issued. It will
enhance the effectiveness of any Advance Passenger Processing
(APP) system.
•
The traveller’s current biometric template can be compared to
reference templates contained on alert lists. The Department of
Labour uses alert lists to identify people such as known terrorists,
people raising character concerns (such as those involved in war
crimes), people with a criminal history, or people who have
previously been removed or deported from New Zealand.
•
The traveller’s current biometric template and the reference
template from their travel document (or from a central database)
can be matched to confirm that the travel document has not
been altered.
160
How can biometric information be used in refugee determinations?
754
Because many applicants for refugee status possess no travel or
identification documents, one of the first steps in evaluating a claim
is to identify the person. The use of biometric information can
improve the quality of identity and background checks on an
individual. It can help to identify persons who had previously entered
the county using a different identity.
755
DNA testing can also allow for relationships between claimants and
family members to be verified where other evidence does not exist
or cannot be obtained.
What do other countries do?
756
The United States (US) and the United Kingdom (UK) have
introduced provisions for the collection, use and storage of biometric
identification of all foreigners arriving into those countries. In the US,
this includes taking photographs and fingerprints of arriving
temporary entrants at the border. The identification information may
be used to confirm identity and to identify fraud. The biometric
information is based on the United Nations global standards that
have been established for the use of new generation e-passports.
757
Australia has introduced legislative controls for the collection, use
and storage of biometric identity information such as those discussed
in this paper. This legislation provides a wider legislative basis for
collecting personal identifiers such as photographs, signatures and
fingerprints, to enhance Australia’s ability to establish and
authenticate the identity of non-citizens, at various stages of
immigration processing and on entry to and departure from
Australia. Facial recognition software is being developed to help
identify immigration detainees, and biometric trials are underway.
Facial recognition software will be able to compare photographs of
detainees with those from external agencies and people, to help
quickly identify people.
758
Canadian legislation provides an officer with authority to fingerprint
any permanent resident or foreign national who is arrested, detained
or is under a removal order. Canada has a system that digitally
captures and transmits encrypted information. This system captures
palm prints, slap impressions and rolled fingerprint images, as well
as providing a means of inputting biodata information. It also
captures photo images via an integrated digital camera.
759
Canada and the UK do not have explicit legislative provisions
regarding the use of DNA in decision-making.
United Nations International Civil Aviation Organisation (ICAO)
760
161
ICAO is the specialised agency of the United Nations whose mandate
is to ensure the safe, efficient and orderly evolution of international
civil aviation. ICAO is responsible for creating and modernising
universally-accepted standards and recommended practices.
161
162
761
In 2003, ICAO adopted a global blueprint for the integration of
biometric identification information into passports and other
machine-readable travel documents. The increased use of biometricenhanced travel documents will lead to the speedier passage of
travellers through airport controls, heightened aviation security and
added protection against identity theft.
762
Facial recognition was selected as the global biometric standard for
travel documents to allow machine-assisted identity confirmation. In
a comprehensive analysis of various available biometrics, the face
rated highest in terms of compatibility with key operational
considerations, followed by fingers and eyes. The face has long been
used by border control authorities and airline staff at airports to
confirm identity with a photo ID. Facial recognition technology
automates this process, using a camera to capture the image of the
face, while a computer validates facial characteristics.
763
ICAO recognises the following benefits in using facial recognition:
•
The photograph is socially accepted internationally. Taking a
photograph is quick, and non-intrusive in comparison with taking
some other biometric samples. Private and culturally appropriate
facilities can easily be made available to take photographs.
•
The photograph is already collected and verified routinely as part
of the passport application process, in order to produce a
passport to ICAO standards. Using photographs would not
require new and costly procedures to be introduced.
•
Verification of the photograph against another photograph or
person is relatively simple and a familiar process for border
control authorities. The public are already aware that
photographs are used for identity verification purposes.
•
Many countries have a database of facial images, captured as
part of the digitised production of passport photographs, which
can be used for identity comparison purposes.
•
Photographs for biometric verification purposes can be captured
from an endorsed photograph, not requiring the person to be
physically present.
•
Using photographs allows children’s biometrics to be captured
without the children having to be present.
•
For watch lists, photographs are generally the only kind of
biometric information available for comparison.
162
How do other government departments in New Zealand use biometric
information?
764
In the passport context, the new e-passport will enable facial
recognition technology to be used at international borders. The epassport (issued by the Passports Office from 4 November 2005)
contains an electronic chip incorporating information about the
passport holder, including an encoded image of the holder’s
photograph, which can be read and compared with a digital
photograph that is taken when the person arrives at an international
border checkpoint that has compatible technology.
765
The New Zealand Police have, for many years, used fingerprint
analysis, which is another use of biometrics.
Proposal
766
Two options are presented here. Option A would maintain the status
quo. Option B would meet the objectives of the review and is
preferred. Option B would create a two-tier power in legislation that
enables immigration officers to:
•
require, use and store some types of biometric information, and
•
request the voluntary provision of DNA and age verification tests
for the purpose of verifying credibility or relationships.
Option A – Status quo
767
The Department of Labour would continue to rely on paper
documentary evidence of a person’s identity, such as a passport.
Where this is unavailable or there are doubts about a person’s
identity, the person could be fingerprinted. An applicant could also
voluntarily supply DNA to support a relationship claim.
Benefits and costs
163
768
As noted above, travel documents and border systems are becoming
increasingly sophisticated, and the status quo would not allow for
parallel developments. Identity fraud has become increasingly
difficult to detect and the current system is regularly compromised.
The inability to use additional methods to ensure the integrity of the
immigration system reduces the ability of the Department of Labour
to regulate entry and stay in New Zealand’s interests and to
contribute to the safety and security of New Zealand. It also
contributes to a system that is less effective and efficient for the
majority of migrants and visitors who New Zealand needs.
769
Some elements of current processing, particularly around the use of
DNA by refugee claimants sponsoring family members, would remain
without clear legislative backing and controls.
163
Option B – Power to require, use and store certain biometric
identification information, and to request other types of biometric
information
770
164
Legislation would enable immigration officers to:
•
require, use and store internationally-agreed standard types of
biometric information (other than DNA), and
•
request the voluntary provision of other types of biometric
information, such as DNA and age verification tests.
771
Internationally, photographs, fingerprints and iris scanning are
considered to be the most robust biometric identifiers and are
endorsed by ICAO. It is proposed that the legislation would require
the use of biometric information in the immigration context to be
consistent with United Nations ICAO standards. At this stage,
therefore, it is proposed that the legislation allow for only
photographs, fingerprints and iris scanning to be required as
biometric identifiers.
772
The legislation would specify that DNA and age verification tests may
not be required, but may be requested to assist a case. Voluntary
provision of DNA would be useful where the case for approval is
tenuous and, in particular, where it would otherwise be declined.
773
This option would give delegated immigration officers the power to
require, use and store specified biometric information to confirm a
person’s eligibility to enter or remain in New Zealand. This would
include visa and permit applicants and refugee claimants. Using
biometric comparisons would be only one aspect of establishing the
identity of an individual who requires permission to enter New
Zealand. Current methods for establishing identity would continue.
774
Immigration officers could make use of the biometric information
that may be required in the following ways:
•
On enrolment, typically at the border or on application for a visa
or permit, a biometric identifier would be collected and turned
into a reference template for the individual. This would enable an
identification check, also known as a “one-to-many” check, to
ensure the person had not previously enrolled in the system
under a different identity.
•
On subsequent interactions where identity must be established,
biometric samples could be verified against the reference
template created when the person enrolled into the system. This
would be the verification process, which is also known as
authentication or a “one-to-one” check. Verification may need to
occur:
ƒ
at the time of a further visa application
ƒ
at check-in
ƒ
at the boarding gate
ƒ
on arrival, when processing passengers
164
165
ƒ
at an immigration office in New Zealand, or
ƒ
on request by another New Zealand government agency to
confirm the identity of a non-New Zealand citizen, as allowed
by approved information matching and identity authentication
agreements.
•
Biometric identifiers could be checked against watch lists or alert
lists containing biometric identifiers of terrorists, criminals, and
persons of character concern, as well as others barred from
entry. This identification process is also known as a “one-to-few”
check. This process would be done at the time the person was
enrolled into the system and again at any subsequent verification
point.
•
Information confirming or authenticating the identity of an
individual would allow the Department of Labour to respond to
law enforcement requests for assistance in confirming the identity
of an individual known to the Department (such as regional
movement alert list enquiries or joint law enforcement
investigations).
775
The collection of this information would need to be rapid, to reduce
the impact on applicants and arriving passengers. This would be
achievable, for example, where relevant biometric identification
information is contained within improved passports or through the
use of quick biometric capture technology.
776
Should the system indicate a match, then an officer would be
assigned to investigate. The purpose of an investigation would be to
establish whether the match was a result of data error or whether
fraud or misrepresentation had been detected. The Department of
Labour already has processes for applicants to review their personal
information, correct inaccuracies and challenge decisions made on
the basis of false information. Biometrics present unique issues,
however, that would require a purpose built solution to be developed
to questions around access, correction and appeal.
777
Detailed guidelines and safeguards would need to be established
around both requiring and requesting the voluntary provision of
biometric information. Some safeguards may need to be set out in
the legislation, and others may be established in regulations or
policy. The guidelines would need to include:
•
who is permitted to collect the information
•
how people will be informed that information is being collected
and stored
•
who is permitted to access the information and under what
conditions
•
the process if the match detects a discrepancy
•
how individuals will be able to review their information, correct
inaccuracies, and challenge false matches
•
how the information will be stored securely
165
•
what will happen if the person cannot submit a biometric due, for
example, to some disability
•
how the “specified degree of similarity” will be determined
•
how long the information will be kept, and
•
that no negative inference would be allowed to be taken from not
supplying voluntary tests (such as DNA) when requested.
How would Option B affect travellers and migrants?
778
In low-risk cases, such as visa-free travellers, Option B would
involve scanning the passport photograph at the border. In the case
of low-risk visa applicants offshore, this would involve scanning the
photograph that the applicant already provides with their application.
In high-risk situations, there could be the opportunity to require
more than one biometric identifier with a visa application, such as a
photograph and fingerprints or an iris image.
779
There would be no change for New Zealand citizens travelling on a
New Zealand passport.
Benefits and costs
166
780
This option would help improve the facilitation of genuine migrants
and visitors. The ability to quickly and easily authenticate low-risk
travellers would enable immigration decision-making that was more
effective and efficient. It would complement other initiatives for
improved facilitation of entry to New Zealand such as the use of epassports and e-visas.
781
This option would also enhance New Zealand’s counter-terrorism and
national security capability by allowing the Department of Labour to
identify, through biometric-based alerts lists, high-risk individuals
who commonly use false identities and travel documents. This ability
to check against biometric-based alert lists would offer a new and
more effective capability to identify and prevent entry of extremely
high-risk or prohibited individuals.
782
Persons on alert lists (for example, for war crimes, crimes against
humanity and terrorism) rarely attempt to enter New Zealand under
their known identities contained in current alert lists. Moving from
managing alerts using names and dates of birth to matching using
facial biometrics would enable the Department of Labour to far more
effectively manage national security, criminal and reputation risks
posed by high-risk individuals prohibited from entering New Zealand.
783
Powers to require, use and store biometric information would:
•
provide quick assurance that the people entering New Zealand
are those who have been pre-approved for entry
•
provide greater opportunities for early detection of identity fraud
•
significantly reduce the frequency of people who have been
deported or removed from New Zealand gaining re-entry under
false identities
166
167
•
substantially prevent identity fraud leading to multiple refugee
claims
•
provide for a higher level of detection of false and fraudulent
activity offshore, with a subsequent reduction in the enforcement
activity required onshore, and
•
enable New Zealand to upgrade visa and border processing
systems to better support new ICAO standards for e-passports.
784
This option would increase the ability of the Department of Labour to
maintain the integrity of the immigration system. It would ensure
that the regulation of entry is undertaken in New Zealand’s interests
and contributes to the safety and security of New Zealand. The
ability to run identity checks prior to the arrival of a person in New
Zealand would also increase the ability of the Department of Labour
to prevent people identified as a risk from entering New Zealand.
Successfully preventing the entry of a person under a false identity
would result in a reduction in subsequent costs from efforts to locate
and remove them.
785
This process could ensure that authentication of the identity of a
foreign-born individual is of the same standard of authentication as
that required of New Zealanders (particularly when seeking a New
Zealand passport). This would link well with the New Zealand
Evidence of Identity Strategy. An objective of business processes
around authenticating foreign-born individuals’ identity would be to
comply with the New Zealand evidence of identity standard. This
would allow the Department of Labour to allocate a level of
confidence in a person’s identity within the immigration system.
786
A clear cost of
administration of
information. The
costs may reduce
787
The collection and storage of biometric information has privacy
implications. Legislation would need to incorporate appropriate
privacy protections.
788
In the refugee/protection context, Option B would help claimants
establish their cases where:
this option would be the equipment and the
a system to collect, analyse and use biometric
technology is developing quickly, however, and
as the technology becomes more widely available.
•
a claim is based on a family link with a person already recognised
as a refugee and there are clear credibility concerns, and
•
claimants misrepresent their age to bolster a fabricated claim to
refugee status.
789
In the broader immigration context, this option would provide clear
legislative backing for the current practice of requesting DNA in
difficult immigration cases. It would clearly establish that it was
lawful to request such information. It would allow more
comprehensive guidelines and safeguards to be developed.
790
Finally, as noted above, this proposal would be developed with other
government agencies working on biometrics issues to ensure
167
alignment with cross-government work and developments in this
area.
11.1 Key question
1
168
Do you agree that the new legislation should create a two-tier power that
enables immigration officers to:
•
require, use and store internationally-agreed
biometric information, and
standard
types
of
•
request the voluntary provision of other types of biometric information
(as specified in regulations in each case).
168
SECTION 12: DETENTION
Scope of section
12.1
What is the appropriate maximum period for detention without a warrant in
expulsion cases?
12.2
What is an appropriate review period for warrants of commitment?
12.3
Is it ever necessary to detain a person for longer than three months while
arranging their expulsion from New Zealand?
12.4
Should warrants of commitment require weekly renewal if a person is serving
a prison sentence?
12.5
Should detention be available for immigration purposes at the border and
onshore?
12.6
Should the Immigration Act give practical support to the Chief Executive’s
current power to designate a place of immigration detention?
791
In order to maintain the integrity of the immigration system, the
government should be able to enforce immigration rules. This may
require detention of immigration “offenders” in a limited range of
circumstances. New Zealand has a fair immigration detention system
that is well-regarded internationally.
792
Detention for immigration purposes may be used when a person:
793
169
•
is issued with a removal or deportation order and would not
otherwise depart voluntarily, or
•
has arrived at the border and is denied entry into New Zealand
(including those who claim refugee status at the border).
There are a range of options available for immigration “detention”.
These include:
•
release into the community with reporting conditions
•
open detention at the Mangere Accommodation Centre (which
allows people to access to the community on day passes), and
•
secure detention.
794
The current detention system is fundamentally considered to be fair
and effective, and there are no proposals to make changes to the
reasons for detaining people, or how frequently detention is used. In
particular, there are no proposals to change release on reporting
conditions and open detention.
795
This section therefore focuses on what the appropriate limitations
should be on detention to ensure the integrity, efficiency and
effectiveness of the immigration system. It also seeks to ensure the
detention system aligns with the proposed new expulsion system
discussed in Section 6: Exclusion and expulsion.
169
796
170
Finally, it is important that detention provisions align with the New
Zealand Bill of Rights Act 1990, in particular the right to be free from
arbitrary detention. The detailed development of the proposals in
this section will need to closely consider New Zealand Bill of Rights
Act requirements.
170
12.1
What is the appropriate maximum period for detention without a
warrant in expulsion cases?
797
This subsection considers the maximum period that a person can be
detained without a warrant of commitment, pending expulsion from
New Zealand.
What is a warrant of commitment?
798
A warrant of commitment is an order from the District Court
confirming that it is appropriate to keep a person in custody for a
specified period.
Status quo
799
In order for the Department of Labour to arrange a person’s
departure from New Zealand, a person may be detained without a
warrant of commitment for up to 48 hours (in the case of
deportation) or 72 hours (in the case of removal). If a person cannot
be placed on a flight within this limited period of time, an
immigration officer must apply to the court for a warrant of
commitment. A warrant of commitment can authorise continued
detention to allow the person to be removed or deported.
800
Where a person has arrived at the border and is denied entry into
New Zealand, they can be detained for up to 48-hours initially
without a warrant of commitment. There are no proposals to change
this time period, as it is working effectively.
What is working well?
801
The limits to the period a person can be detained without a warrant
of commitment protects the fundamental rights of that person. The
limits ensure that the person has their detention reviewed by the
courts within a reasonable time.
What are the problems/opportunities?
171
802
The initial period of detention without a warrant of commitment (48
or 72 hours) is now too short to arrange departure in many
circumstances. It often takes up to 96 hours (four days) to arrange a
departure from New Zealand.
803
In certain circumstances where a removal or deportation order has
been served, the Department of Labour struggles to remove a
person within the specified timeframe of up to 48 or 72 hours. The
department is then required to seek court approval for a warrant of
commitment. Often the warrant of commitment is required to keep
people for a very short extra period of time. It may only extend the
maximum period of detention to a total of 96 hours (four days). The
increasing need to obtain a warrant for this short period has led to
an increase in costs for the Department of Labour and places undue
burden on the courts.
171
804
172
Factors which influence the time taken to effect removal include:
•
airline clearances/approvals
•
Police clearances
•
Police escorts
•
flight availability
•
difficulty obtaining travel documents, and
•
administrative difficulties.
805
Airline clearances/approvals – Since the events of 11 September
2001, airlines have demanded advance notice of an intention to
place a person being removed on a flight. Airlines have also
demanded an increased level of identity and risk checks. Approval
for an airline to carry a person being removed is now only given at
head office in the “home country” of the airline. For example, China
would have to give consent for Air China. The different time zones
involved slow down the approval process. Airline approval is now
very difficult to obtain within 72 hours.
806
Police clearances – Airlines and transit countries now require a New
Zealand Police security check on a person being removed. This check
takes time and it is difficult to obtain the check within 72 hours if the
person has a criminal history.
807
Police escorts – If a Police escort is required to escort a person being
removed, it takes time to make the arrangements. An appropriate
escort must be selected and any travel arrangements made. This
includes ensuring the escort has the required visas to travel.
808
Flight availability – Often people who are being removed come from
remote countries. Arranging flights can be complicated when direct
flights do not occur on a daily basis. Seats are often not available on
busy routes during peak periods.
809
Difficulty obtaining travel documents – The increased identity and
security checks undertaken by all countries can make travel
documents hard to obtain in a short timeframe. This difficulty is
exacerbated because of the increasing number of people coming
from countries with no diplomatic/consular representation in New
Zealand, such as Nigeria.
810
Administrative difficulties – The removal process can often not begin
for a person who is located on a Friday afternoon or over the
weekend until the following Monday. The key agencies or individuals
required to process a departure may not be available until the next
full working day. It is often also difficult to find a District Court Judge
to obtain a warrant of commitment on a public holiday.
811
Immigration officers and others can spend significant amounts of the
available 72 hours obtaining the warrant which detracts from the
time available for arranging the removal. The immigration officer
must spend about an hour the day before court preparing the
papers. The actual court process to obtain the warrant can take two
172
hours or more. In addition, Police or Corrections officers’ time is
required in transporting the person to and from court, and
supervising the person while the court process is taking place.
812
There is also the opportunity to ensure that provisions on this issue
are consistent with the proposals in Section 6: Exclusion and
expulsion.
What do other countries do?
813
Australia currently requires the mandatory detention of people
present in the country unlawfully. A warrant of commitment is not
required and there is no systematic review of detention by the
courts.
814
Canada requires a review by the Immigration and Refugee Board, an
independent immigration appeal authority, after 48 hours of
detention. There is, however, a presumption that detention will
continue. After 48 hours, the decision to release the person rests
with the Immigration and Refugee Board.
Proposal
815
Two options are presented here. Option A would retain the status
quo. Option B would extend the maximum period of detention
without a warrant of commitment to a person served with an
expulsion order (as proposed in Section 6: Exclusion and expulsion)
to 96 hours (four days). It would ensure that the detention system is
more efficient and effective and that it is consistent with the new
proposals discussed in Section 6. Early authorisation for detention by
a judicial authority is an important safeguard against arbitrary
detention, however, and for this reason there is no clear preference
at this stage between Option A and Option B.
Option A – Status quo
816
In order for the Department of Labour to arrange a person’s
departure from New Zealand, a person would continue to be able to
be detained without a warrant of commitment for up to 48 hours (in
the case of deportation) or up to 72 hours (in the case of removal).
If a person cannot be placed on a flight within this limited period of
time, an immigration officer must apply to the court for a warrant of
commitment.
Benefits and costs
817
173
Maintaining the status quo would ensure that the need for continued
detention and the rights and interests of detainees are considered
promptly. However, the practical difficulties in removing people
within 72 hours would remain, and the costs of seeking warrants of
commitments at this stage may outweigh the benefits.
173
Option B – Increase period of detention without warrant
818
The maximum period of initial detention without a warrant of
commitment for people issued an expulsion order would be extended
from 48 hours (two days), in the case of current deportation orders,
and 72 hours (three days), in the case of current removal orders, to
96 hours (four days). As with current practice, the power would only
be used where immigration officers consider that the person would
not otherwise leave voluntarily.
Benefits and costs
819
This change would reduce the cost of arranging a person’s departure,
particularly where the warrant of commitment being sought was for
a minimal extra period of time. It would contribute to an efficient
and effective immigration system, by allowing immigration officers to
focus on securing all the necessary approvals, identity and risk
checks and travel documents for a person, instead of spending time
in the courts seeking a warrant of commitment.
820
Extending the period of initial detention to up to 96 hours (four days)
would reduce the protection offered to people who are being
detained. Detention impinges on a person’s freedom of movement
and should always be for the minimum justifiable period. The
government recognises this and does not propose to make changes
to the reasons for detaining people, or how frequently detention is
used. The focus would still be on getting the person on the first
available aircraft. There would be no change to the processes that
ensure people are detained only after comprehensive investigation
into their status in New Zealand.
821
Detention without a warrant for up to 96 hours (four days) would not
preclude a Habeas Corpus writ. This enables the person to challenge
the lawfulness of their detention. The protection of their rights would
remain as it does under the current system.
822
Increasing the possible period of detention without a warrant of
commitment may not change the overall period that the person is
held in detention. It may help to decrease the total length of time a
person is in detention by allowing immigration officers to focus on
the departure requirements, rather than going to court to seek a
warrant. It would also reduce the burden on the court system by
freeing court resources for other matters.
Alternatives considered
823
174
Alternative options considered included extending the maximum
period of initial detention without a warrant to seven days. An
extension to seven days would clearly address the problems
identified above. However, an extension beyond four days was
considered to unnecessarily impose on a person’s individual rights
and to be unjustifiable.
174
12.1 Key question
1
175
Do you agree that the period of initial detention without a warrant of
commitment prior to expulsion from New Zealand should be increased to a
maximum of 96 hours (four days)?
175
12.2
What is an appropriate review period for warrants of
commitment?
824
This subsection considers how often the courts should review the
detention of people for immigration purposes.
Status quo
825
As discussed above, the Immigration Act allows a person to be
detained in limited circumstances. A person may be initially detained
without a warrant of commitment for a limited period. After this, the
courts are required to review the need for detention and to authorise
any continued detention of the person by issuing a warrant of
commitment. The warrant sets out an initial period of continued
detention (a maximum of seven days in removal cases and a
maximum of 28 days in deportation cases, or where a person has
been denied entry). Following this initial period of detention, the
warrant of commitment must be reviewed and renewed every seven
days.
What is working well?
826
The right of a person to have the lawfulness of their detention
reviewed by the courts within a reasonable time is fundamental. The
current warrant of commitment system ensures a regular and
independent assessment of whether detention is justified.
827
The current requirement is to review and renew a warrant of
commitment every seven days, after the initial period of detention.
In many cases, the initial period of detention is sufficient to resolve
cases where detention is required for short durations.
What are the problems/opportunities?
176
828
In some cases it will be obvious from the situation that the continued
detention of a person is warranted for a longer period. The inability
of judges to issue a warrant of commitment to continue detention for
longer than seven days is an unnecessary constraint on the court.
This is particularly problematic where a judge is fully aware the
decision-making process will necessarily take several months, as in
the case of refugee determination.
829
A range of participants in the warrant renewing process have
suggested that it would be helpful and appropriate to extend the
required review period. This would allow judges to use their
discretion to make a decision appropriate to an individual case.
830
The frequency of the review and renewal required under the current
Immigration Act imposes significant costs on the Department of
Labour and the courts. The need for the courts to review continued
detention every seven days creates high administrative costs for the
government, including organisation, transport and staff from multiple
agencies. It also imposes costs on the courts.
176
What do other countries do?
831
Australian authorities are not required to obtain court approval for
detention of unlawful non-citizens, as detention is mandatory.
Review of detention is not required for extended periods.
832
Canada requires a review by the Immigration and Refugee Board, an
independent immigration appeal authority, after 48 hours of
detention, then within the next seven days and every 30 days
thereafter. After 48 hours, the decision to release a person rests with
the Immigration and Refugee Board.
Proposal
833
Two options are presented here. Option A would maintain the status
quo. Option B would give the judge discretion to authorise detention
without review, for a period of no more than 28 days at a time, and
is preferred.
Option A – Status quo
834
The review and renewal of a warrant of commitment after the initial
period of detention would still be required every seven days.
Benefits and costs
835
Maintaining the status quo would ensure that the need for continued
detention and the rights and interests of detainees are considered
regularly. However, as noted above, such frequent reviews may not
be required in all cases. The current situation does not allow the
courts to make decisions appropriate to the individual facts of each
case. It imposes significant costs for the Department of Labour and
the courts.
Option B – Judicial discretion to authorise detention without review
for a period of no more than 28 days
177
836
Option B would give judges discretion to authorise, after the initial
detention period, detention without review for a period of no more
than 28 days at a time. The judge authorising continued detention
could set the review to be earlier than the 28 days if they felt that
was appropriate in the individual circumstances.
837
Allowing judges this discretion would allow them to consider the facts
of an individual case. A decision appropriate to the individual case
could then be made in each circumstance.
838
More frequent administrative reviews of detention by a person senior
to the original decision-maker would be established. This would
ensure that any changes in circumstances were taken into account
as they arose. No person would be detained unnecessarily or for any
period of time longer than needed to arrange for their removal from
New Zealand.
177
839
Extending the period of detention without judicial oversight may not
change the overall period that the person is held in detention or the
process that ensures people are only detained after comprehensive
investigations into their status in New Zealand. The stringent checks
and balances currently in place would remain.
How would Option B work in practice?
840
A person arrives in New Zealand and claims refugee status. They
have destroyed their travel documentation en route and refuse to
give any information regarding their identity. The person is detained
to allow refugee status to be assessed. At the time the person is
detained, refugee status determinations for persons in detention are
taking, on average, three months. On the first review of detention,
the judge authorises continued detention and deems it appropriate
for the next review to take place in 28 days.
841
The person is approved refugee status after being in detention for 10
weeks. Under Option B, this requires three reviews by the court,
rather than eight under the status quo.
Benefits and costs
842
Adopting longer periods between judicial reviews (supported by more
frequent internal administrative reviews) is likely to improve
efficiencies within the detention system whilst still ensuring sufficient
judicial oversight of ongoing detention. It will allow judges to
exercise their discretion in individual cases. This would contribute to
the principle of establishing efficient processes and maintaining a fair
process.
843
The reduced frequency of independent judicial oversight of detention
could be seen to be offering less protection. However, in any review
and renewal of detention, the judge is able to set a reduced period of
review less than the maximum 28 days allowed. Additional internal
review of the need for ongoing detention would also be a
requirement of increasing the period between independent reviews.
The cost of establishing an internal review process is unlikely to be
as high as the current costs involved in weekly judicial review.
12.2 Key question
1
178
Do you agree that the review period for warrants of commitment for detention
should be increased from every seven days to no more than every 28 days?
178
12.3
Is it ever necessary to detain a person for longer than three
months while arranging their expulsion from New Zealand?
844
This subsection considers whether it is ever necessary to detain a
person for longer than three months while arranging their expulsion
from New Zealand.
845
As discussed earlier, secure detention is always a measure of last
resort. Reporting conditions or open detention for immigration
detainees are preferred to detention. The need for detention is also
reduced by encouraging the voluntary departure of people unlawfully
in New Zealand who have been located. Just over 1,200 such
voluntary departures occurred in 2004/05.
Status quo
846
847
In New Zealand, no person can be detained for a total of more than
three months once they have been served with a removal order.
Exceptions to the three month timeframe are allowed if the person:
•
claims refugee status after their removal order is served, or
•
has obstructed removal action (for example, by refusing to sign a
passport application), after their removal order is served.
Under these exceptions, the judge may not order the release of the
person unless there are exceptional circumstances. Their warrant of
commitment can be extended for no more than 30 days at a time.
This allows for the continued judicial review of the person’s detention
based on the individual case.
Example
179
848
A person entered New Zealand and made a refugee status claim that
was based on false information. After their final appeal confirmed
that they had no claim to refugee status, their permit expired. They
broke contact with the Department of Labour, failed to leave New
Zealand voluntarily and continued to work here unlawfully.
849
Once located, the person was served with a removal order and
detained as a probable flight risk. While in detention, the person
refused to sign the application for a passport from their home
country. Their actions meant that the Department of Labour was not
able to complete their removal.
850
The court ordered continued detention for 30 days at a time, until
the person cooperated in obtaining travel documents and the
removal went ahead.
179
What is working well?
851
The majority of removals are undertaken without the need for
detention. Detention prior to removal is only used in cases where
there is concern regarding the identity of a person or they are
considered to be a flight risk. Detention is a useful tool for ensuring
that the Department of Labour can effectively manage the removal
of these people.
852
People are usually removed well within the three-month maximum
period of detention. The Department of Labour works to ensure that
the majority of removals happen within a minimum timeframe of 96
hours (four days) of detention.
853
The current exceptions, allowing for extended detention by the
courts, are a useful counter to delaying tactics by a person who
seeks to disrupt the removal process and challenge the integrity of
the immigration system.
What are the problems/opportunities?
854
The Department of Labour needs to satisfy a number of
administrative requirements in order to successfully remove a person
from New Zealand (discussed in Subsection 12.1 above). One
requirement is to obtain the appropriate travel documents. There are
occasions when foreign governments can take some time to confirm
the identity of a person and issue travel documents. Often this is due
to the administrative processes in the person’s home country.
855
If the process of obtaining travel documents takes longer than three
months, the person must be released from detention. Once the
travel documents are available, the person must be located again. If
the person is not located in time, the travel documents may expire.
The travel documents themselves are often issued for a limited time
and specific purpose. If they expire, the process of obtaining them
must begin again. This happens in a small number of cases (around
50) each year.
856
The requirement to release a person who is considered a flight risk
while making arrangements for their removal undermines the
effectiveness of the detention system and the efficiency of the
removal process. It reduces the ability of the government to control
who may remain in New Zealand.
What do other countries do?
180
857
The United Kingdom (UK) has established agreements with a number
of countries allowing for the return of illegal migrants without
documentation, or agreeing to minimum timeframes for the issuing
of travel documents.
858
Australia has similar agreements to the UK. It has sometimes
responded to slow issuing of travel documents by slowing (or
halting) the processing of travel documents for nationals of that
country seeking to travel to Australia.
180
859
Neither of these options is seen as feasible for New Zealand, as New
Zealand does not necessarily have the leverage to obtain return
agreements similar to the UK, nor the desire to put other national
objectives at risk through obstructing travel for the law-abiding
majority.
860
Canada does not have a statutory limit on the time a person may be
detained for immigration purposes. Although some individuals may
be detained on a long-term basis, Canada’s policies and practices
promote short-term detention.
Proposal
861
Two options are presented here. Option A would maintain the status
quo. Option B would create an additional exception which would
allow a judge to order detention beyond three months, with review
at least every 28 days where administrative requirements
necessitate it. Such an exception could authorise a maximum of six
months detention only. Option B is preferred.
Option A – Status quo
862
There would continue to be a three-month limit on detention for the
majority of cases, and the two current exceptions for longer
detention would be retained.
Benefits and costs
863
The three-month limit on detention acts as an incentive to conclude
removal processes quickly and ensures that people are not
unnecessarily detained for extended periods of time. Retaining a
maximum period of detention would maintain the existing level of
certainty, for courts and detainees, that the detention has a limited
timeframe. This may assist the courts in considering the matter of
ongoing detention by providing a frame of reference for how long
detention is considered likely to be necessary.
864
There would continue to be a small number of cases each year that
are unable to be concluded within this timeframe, due to delays in
obtaining the appropriate travel documentation. People considered to
be a flight risk would still be released into the community.
Option B – Create an additional exception to the three-month
maximum period of detention, for a maximum of six months
detention only
865
181
A third exception to the three-month maximum period of detention
would be added to the Immigration Act. This exception would allow
judges to detain a person for longer than three months, but for a
maximum of six months. Such an exception could only be made
where the judge was satisfied that administrative requirements for
the expulsion were unable to be finalised within the three-month
period, through no fault of the Department of Labour. This would
181
clearly put the onus on the Department of Labour to do everything
possible to arrange the removal within three months.
866
The detention would require judicial review every 28 days at least,
as discussed in Subsection 12.2 above. This would ensure that the
courts regularly considered the need for ongoing detention. The
rights of the individual would be considered independently, and this
would also provide an appropriate incentive for the Department of
Labour to expedite the person’s removal.
867
Including a third exception in the legislation would not change the
reasons that a person may be detained. The Department of Labour
would continue to use detention as a measure of last resort. This
option would continue to allow persons to be accommodated in an
open detention centre, or released on conditions where appropriate.
How would Option B work in practice?
182
868
A person enters New Zealand as a visitor, stays unlawfully after their
permit expires and works illegally. They are located by the
Department of Labour, which agrees to allow a voluntarily monitored
departure a week later. However, the person fails to depart
voluntarily. Despite ongoing investigations, the person evades the
department for six months, but is eventually located, issued with a
removal order and detained pending removal. The person will not,
however, produce their passport.
869
When the person is first detained, an application for a new travel
document from the person’s home country is made. This travel
document is not a full passport, is valid only for one month and
usually takes two months to be issued. After nearly three months,
that country’s consular officials advise that there will be a further
one-month delay in providing the travel document. While the delay is
not fault of the person, previous behaviour indicates that the person
would, if released, not voluntarily come forward to be removed. On
this basis, the department seeks a judge’s agreement that the
person should be detained beyond the three-month limit, for another
28 days.
870
Currently, the judge could not detain the person beyond the threemonth limit. The person would be at large when the travel document
arrived, giving the department only one month to locate the person
again before the travel document expired. Under Option B, the judge
could order a further 28 days of detention if satisfied that the
Department had not caused the delay, and the person would be
removed when the travel document arrived.
182
Benefits and costs
871
The principal benefit of Option B is that it would allow the judiciary to
consider a third exception to the three-month limit to detention,
where a person’s removal from New Zealand was being arranged.
The review period of no more than 28 days would allow a judge the
discretion to consider the individual facts of each individual case and
make an appropriate decision on the ongoing detention (up to a
maximum of six months). It ensures that the rights of the individual
are considered regularly and that no person will be detained
unnecessarily.
872
This option would uphold New Zealand’s interests in choosing who
travels to New Zealand and remains here. It would ensure that the
removal process was efficient and that the detention system was an
effective tool for maintaining the integrity of the Immigration Act.
Six months is likely to be sufficient to obtain the necessary
documents in the vast majority of cases.
873
Option B provides an assurance that a three-month limit to detention
remains the rule. An extended period of detention longer than three
months (but a maximum of six months) would be an exception to
that rule. It would require an exception to be made by the courts,
while the review period would require the need for the exception to
be considered frequently. Also, the Department would have to show
that any delay was not of its making. Option B would ensure that
strong safeguards to protect individuals in the detention system
would remain.
874
While the numbers of people detained for longer than three months
are likely to be small, there would be costs for the Department of
Corrections from any additional periods of detention. This risk is
mitigated by the availability of alternative responses, such as open
detention and release on conditions.
12.3 Key question
1
183
Should a third exception to the maximum three-month period of detention be
introduced to allow detention for up to six months, where administrative delays
outside the control of the Department of Labour occurred that prevented earlier
removal?
183
12.4
Should warrants of commitment require weekly renewal if a
person is serving a prison sentence?
875
This subsection considers the need to renew a warrant of
commitment in cases where a person is also detained to serve a
prison sentence for a criminal offence.
Status quo
876
A warrant of commitment must be obtained in order to detain a
person who is “refused entry”, or who is the subject of a refugee
claim, and whose identity cannot be established. This warrant allows
for an initial period of detention of up to 28 days and, after that,
must be renewed every seven days.
877
Where a person arrives in New Zealand and, in the course of
arriving, commits a criminal offence (for instance, bringing drugs
into the country), it is possible to obtain a warrant of commitment.
This allows for the individual to be detained pending their removal
from the country, and they are given “refusal of entry status”.
878
There may be cases where the person with refusal of entry status is
prosecuted and sentenced to prison. For the duration of their
sentence and in order to preserve that refusal of entry status, the
Department of Labour must continue to renew their warrant of
commitment every seven days while they are in prison.
What is working well?
879
In general, regular independent assessment of the continued need
for detention for immigration purposes supports the detention
regime and ensures that unnecessary detention is avoided.
Maintaining “refusal of entry status” for a person in detention helps
the Department of Labour to remove them quickly after they have
served their sentence.
What are the problems/opportunities?
184
880
Where a person has been refused entry and is also sentenced to
prison, the Department of Labour must continue to renew the
original warrant of commitment every seven days for the entire
duration of the sentence. This weekly renewal may sometimes go on
for a number of years.
881
If the original warrant is not renewed, the person cannot be treated
as though they were refused entry at the border when they are
released from prison. This means that these people will be treated as
though they were initially in New Zealand lawfully and they may
have appeal rights. They may be released into the community even
though they are not a person New Zealand would choose to let enter
and remain in the country. Even if their appeal is not upheld and
they are subject to removal, it may then be difficult to locate the
person once they are in the community.
184
What do other countries do?
882
Many jurisdictions issue such people with a special visa entitling
them to enter the country only for the purpose of serving their prison
sentence. On the completion of the sentence, the person’s permit
expires and they must leave immediately or face normal removal
action. This usually entitles them access to appeals processes.
Although such appeals are seldom successful, they can delay the
person’s departure from the country.
Proposal
883
Two options are presented here. Option A would maintain the status
quo. Option B would enable the requirement to renew a warrant of
commitment to be waived for a person who is convicted and
imprisoned, and who has refusal of entry status. Option B is
preferred.
Option A – Status quo
884
The requirement that a warrant of commitment be renewed every
seven days would be retained.
Benefits and costs
885
As noted above, people who have been refused entry may be
imprisoned for a criminal offence for a number of years. Given that
their circumstances are unlikely to change during this period of
imprisonment, the administrative costs associated with renewing
their warrant of commitment every seven days are not justified.
Option B – Enable the waiver of the requirement to renew warrants
185
886
The legislation would enable the court to waive the requirement to
renew a warrant of commitment where a person has been refused
entry to New Zealand and is serving a prison sentence for criminal
behaviour. The requirement for judicial review of immigration
detention could be waived until seven days after the end of their
criminal sentence.
887
This would mean that the person would complete their prison
sentence and then could continue to be detained for up to seven
days to allow for their removal from New Zealand. If the person has
still not been removed, their ongoing detention would be subject to
judicial review. A warrant of commitment from a judge would be
required to continue their detention while awaiting their removal
from New Zealand.
888
The Department of Labour would work to remove such people as
soon as possible after their criminal sentence ends so that they
would not be subject to immigration detention for longer than
necessary. The department would work together with the
Department of Corrections to ensure that they were aware of when a
person with refusal of entry status was due to end their criminal
185
sentence and be detained for immigration purposes. This would
enable them to ensure that the administrative requirements for that
person’s removal were arranged prior to the end of the person’s
sentence. This process would be established as best practice. It
would mean that a person would rarely have to be placed in
immigration detention at the end of their sentence.
Benefits and costs
889
This option would mean that the Department of Labour would no
longer be required to renew warrants of commitment every seven
days during a period of imprisonment, in all cases. Enabling the
detention to continue for up to seven days following the period of
imprisonment ensures that they can continue to be detained to
enable removal to take place. The person would retain any rights of
review and appeal that existed when they were first attempting to
enter New Zealand but would not gain any further review rights. This
option would contribute to the principle of efficient processes.
12.4 Key question
1
186
Should the court be able to waive the requirement to renew a warrant of
commitment to detain a person who:
•
has been refused entry to New Zealand, and
•
is serving a prison sentence for criminal behaviour?
186
12.5
Should detention be available for immigration purposes at the
border and onshore?
890
This subsection considers whether there are gaps in the current
system that prevent the Department of Labour from arranging
detention of people (including open detention and release on
conditions) where this is an appropriate response. This subsection
does not question the reasons for detention, which are considered to
be robust. Rather it considers whether differences that allow people
to be detained at the border, but not onshore, might undermine the
integrity of the immigration system.
Status quo
187
891
The current Immigration Act allows a person to be detained in very
limited circumstances. These circumstances include when a person is
refused entry to New Zealand at the border on arrival, and/or is
discovered unlawfully in New Zealand up to 72 hours after arrival.
892
The power to detain in these circumstances is often used in regard to
refugee status claimants who are refused a permit at the border.
Despite that refusal, their refugee claims must still be properly
processed. Other persons refused a permit at the border are usually
quickly sent back to where they came from.
893
There are other situations where a person may be detained, such as
if there is classified information indicating that the person is a
security threat. This issue falls within Part 4A of the Immigration Act
(which is outside the scope of this review).
894
There are clear operational guidelines for immigration officers on
what is the appropriate response to a refugee status claimant at the
border. An immigration officer may grant the person a temporary
permit to enter and remain in New Zealand lawfully, or refuse a
permit and:
•
release the person into the community with reporting conditions,
or
•
accommodate the person in open detention where they have
access to the community, or
•
detain the person in secure detention.
187
895
896
897
Guidelines for when a refugee status claimant may be granted a
temporary permit to enter and remain in New Zealand lawfully
include when:
•
the person has valid travel documents and there are no identity
concerns, and
•
there are no risks of criminal offending.
Guidelines for when a refugee status claimant may be detained in
secure detention include when:
•
they meet the legislative criteria for exclusion from New Zealand
(as discussed in Section 6: Exclusion and expulsion)
•
detention is required to protect national security or public order
•
the identity of the person cannot be ascertained, particularly if
there is a risk that they might be involved in people smuggling
•
the person has used fraudulent documents or destroyed travel
documents to mislead officials
•
there is a clear risk of the person criminally offending, and
•
these risks could not be managed by releasing a person with
reporting conditions or holding them in open detention facilities
with access to the community.
Further guidelines are set out for when a person may be released on
conditions or held in open detention.
What is working well?
188
898
As discussed throughout this section, there are clear mechanisms for
allowing a person to be detained pending removal from New
Zealand, and to be turned around at the border, where the person
does not claim refugee status.
899
New Zealand’s refugee determination system is well regarded
internationally. A refugee status claimant is never removed from
New Zealand before their case is determined and they have
exhausted appeal rights. Alternatives to detention are always sought
in the first instance. Refugee status claimants are only detained
when the alternatives are clearly not viable options.
900
Where the person is detained, the refugee status determination is
always expedited to ensure that they are detained for the minimal
period of time possible. The detention system for refugee claimants,
including release on conditions and open detention, is seen by the
United Nations High Commissioner for Refugees (UNHCR) as a model
process. It has been tested in the courts and has been consistently
found to be robust.
188
What are the problems/opportunities?
901
A refugee status claim requires a detailed and robust assessment
which, in most cases, takes a minimum of three to six months. It is
only after a claim has been finally declined that removal can be
considered and detention on that basis initiated.
902
When a person claims refugee status within New Zealand (that is,
not at the border), but there is no record of this person entering New
Zealand under the name they present and they have no travel
documentation, there are likely to be significant identity concerns.
Under the current legislation, while this person could have been
detained at the border, they cannot be detained if the identity
concerns arise more than 72 hours after entering New Zealand.
Similarly they cannot be accommodated in open detention or
released on conditions.
903
Approximately three-quarters of all refugee status claimants make
their claims from within New Zealand. A significant number of these
people have no identity documentation. In such cases, they are most
likely to have entered New Zealand on fraudulent documentation.
There can be no certainty around their actual identity, and it is
difficult to assess the level of risk they present.
904
The difference in treatment between those people who claim refugee
status on arrival and those who claim from within New Zealand
provides an incentive for people to enter illegally. This incentive is
apparent in the greater number of people who claim from within New
Zealand.
What do other countries do?
189
905
Australia detains all people who are considered to be “unlawful noncitizens” and whose identity is unknown. This includes all people who
have arrived in Australia on fraudulent documents and those who
subsequently make a refugee status claim. Asylum seekers who
arrive using their own documentation are not detained while their
status is determined unless they are a health or character concern.
906
Canadian legislation authorises detention of a person considered a
danger to the public or a flight risk. The power of detention can be
used at any time in these circumstances. People can also be detained
at the border when their identity is in question and security concerns
exist.
907
Officials are not aware of any country that makes a distinction
regarding detention based on whether a person claims refugee
status at the border or within the country. Rather, distinctions are
generally made on the level of risk presented by the person.
189
Proposal
908
Two options are presented here. Option A would maintain the status
quo. Option B would enable any person who claims refugee status to
be detained (or accommodated in open detention or released on
conditions) regardless of when they make the claim, provided they
meet the same strict criteria for detention. Option B is preferred.
Option A – Status quo
909
Under the status quo, a person who makes a refugee status claim
after 72 hours in New Zealand cannot be detained, even where there
are serious identity and character concerns.
Benefits and costs
910
The management of those who claim refugee status at the border
would continue to work well. As noted, the current use of detention
is regarded by the UNHCR as a model process.
911
The gap in the current legislation means that some people who
present significant identity and character risks are allowed to remain
in the community until their refugee status claim is determined. This
makes it much more difficult to locate and remove the person if
refugee status is declined.
Option B – Enable high-risk refugee status claimants to be detained,
accommodated in open detention or released on conditions,
regardless of when the claim is made
912
190
Under Option B, both those who claim refugee status at the border
and those who claim from within New Zealand could be detained
while their claim was being determined, provided they meet the
same strict criteria for detention:
•
a person could only be detained if they were refused entry at the
border, were in New Zealand unlawfully, or claimed refugee
status under a different identity to their permit details, and
•
in all circumstances, secure detention would be limited to very
high-risk claimants (as set out in paragraph 896), where the risk
could not be managed through open detention or release on
conditions and where it was not appropriate to grant a permit.
913
In all cases of detention, refugee status determination would be
expedited to ensure that the person was detained for the minimal
period of time possible. Their detention would be subject to judicial
review by the courts, as discussed earlier in this section.
914
This process would be consistent with the proposals for regular
judicial review discussed earlier in this section. It would ensure that
no person was detained unnecessarily, or for longer than necessary
to establish their identity and consider the risk they pose to New
Zealand. Safeguards, including the judicial review of detention,
would ensure that individual rights were upheld.
190
How would Option B work in practice?
915
A person comes to New Zealand on a false passport and is granted a
temporary permit at the border under the name of Josephine Bloggs.
A month later, she claims refugee status under the name of Jane
Doe.
916
In this case, the real identity of Jane Doe is unclear. Had she claimed
refugee status at the border, she may have been detained. Under
the current legislation, there is no power to assess the most
appropriate option for this person while refugee status is being
determined. She must remain in the community.
917
Under Option B, Jane Doe may be detained in secure detention
where there are high risks such as possible criminal offending (as
outlined in paragraph 896), and the risk cannot be managed through
open detention, release on conditions, or granting a new permit.
Benefits and costs
918
This option would close a current gap in the Immigration Act. It
could reduce some current incentives for people to enter New
Zealand unlawfully to claim refugee status. It would create a real
incentive for refugee claimants who have entered fraudulently to
inform the Department of Labour of their real identity to avoid
detention.
919
Option B would enable the Department of Labour to maintain the
integrity of the immigration system and manage the risk that
unknown people may pose to New Zealand. It would ensure the right
of New Zealand to choose who entered and remained in the country.
920
The safeguards around the judicial review of detention would ensure
that processes were fair and consistent with the current detention
system. They would allow each case to be considered individually
and would ensure that an individual’s rights were maintained.
921
This option may have cost and resource implications for the
Department of Corrections. If the number of refugee status
claimants to be held in secure detention increases, the Department
of Corrections would have to manage this increase and the
associated costs. This risk is mitigated by the alternative detention
options available to the Department of Labour, including open
detention at Mangere Accommodation Centre and release on
conditions. These alternatives are currently used frequently for
refugee status claimants detained at the border.
12.5 Key question
1
191
Should the gap in the current Immigration Act be closed to enable high-risk
refugee status claimants to be detained, regardless of when the claim is
made?
191
12.6
Should the Immigration Act give practical support to the Chief
Executive’s current power to designate a place of immigration
detention?
922
This subsection considers whether the new Immigration Act should
give practical support to the Chief Executive of the Department of
Labour’s current power to designate a place of immigration
detention. It considers whether the Act should establish clear powers
and procedures for immigration officers to undertake the secure
detention of people in such places.
Status quo
923
The Chief Executive of the Department of Labour can designate a
place for immigration detention under the current Immigration Act.
However, immigration officers have no power to hold a person in
that place. The Act does not give them the power to detain people in
any circumstances. This means that the Chief Executive’s power is
ineffective.
924
If a person being detained requires secure detention (rather than
reporting conditions or open detention in the Mangere
Accommodation Centre), they will be held in either New Zealand
Police facilities (for short durations) or Department of Corrections
facilities (for periods longer than 48 hours).
925
The number of immigration detainees in New Zealand Police and
Department of Corrections facilities is relatively small. The bulk of
immigration detainees are held in Police facilities for relatively short
durations while the Department of Labour makes arrangements for
them to leave.
926
The Corrections Act 2004 contains the ability to make provision for
immigration detainees held in Corrections facilities to be
accommodated under a separate regime from other prisoners. This
means that, while detained in Corrections facilities, immigration
detainees could be treated differently. In practice, the Department of
Corrections generally apply the same regime to immigration
detainees as for unconvicted remand prisoners. This acknowledges
that neither immigration detainees nor remand prisoners have been
found guilty of a criminal offence by the courts.
What is working well
192
927
New Zealand’s immigration detention system has an
reputation with international agencies. The system uses
requirements and an open detention facility (the
Accommodation Centre) when immigration detainees
considered a flight risk.
excellent
reporting
Mangere
are not
928
The practice of secure detention is undertaken by agencies with the
greatest experience, training and technical knowledge of detention
(Department of Corrections and the New Zealand Police). This
192
enables detention to be undertaken in an efficient way, and ensures
consistent treatment and protection of staff and those who are being
detained.
929
There are low numbers of immigration detainees in Corrections
facilities and there is no need or justification for building a separate
immigration detention facility.
What are the problems/opportunities?
930
New Zealand’s practice of secure detention in Police or Corrections
facilities has been criticised by practitioners, commentators, foreign
governments whose nationals have been held in Police cells, UNHCR
and non-government organisations with an interest in detention
practices. The principal issue for those who criticise New Zealand’s
secure detention system is that New Zealand does not have secure
detention facilities separate from Police or Corrections facilities.
931
Because of the lack of any criminality in the majority of immigration
detention cases, it is often inappropriate and undesirable to hold
immigration detainees alongside remand prisoners or convicted
criminals. The practice could give rise to assumptions about
criminality of immigration detainees by the wider public or, for
example, future prospective employers.
932
Existing legislation provides for immigration detainees to be treated
differently to other detainees. However, the Department of
Corrections advises that resource constraints mean that this would
require individuals to be held within their cells for 23 hours of each
day. This treatment is not justifiable and would undermine the
intention of affording better treatment to immigration detainees.
933
As noted above, the Chief Executive of the Department of Labour
may already approve another place as a place of detention.
However, establishing a place of detention outside Police or
Corrections facilities is difficult, as immigration officers’ powers to
maintain detention are not adequate to enable ongoing secure
detention. They are unable to detain people in any circumstances
and would not be able to prevent an immigration detainee from
leaving.
934
To address both international concerns and those of the government,
it would be preferable to establish clear and transparent rules in
legislation that allow immigration officers to undertake secure
detention in a place declared a place of immigration detention by the
Chief Executive of the Department of Labour. This would enable the
Department of Labour to manage detention outside of Police or
Corrections facilities on a short-term case-by-case basis, if practical.
What do other countries do?
935
193
Australia detains persons for immigration purposes in immigration
detention facilities, including houses for families. These are run by a
private company on behalf of the Department of Immigration and
Multicultural Affairs. Persons may be held pending removal if they
193
have arrived illegally, are in breach of permit conditions or were
refused entry at one of Australia’s entry ports.
936
Canada has immigration holding centres for low-risk detainees.
Provincial Corrections facilities are used to house high-risk detainees,
in particular, those with criminal backgrounds as well as those
considered to be a danger to the public.
937
The UK has different types of centres in which asylum seekers and
migrants are detained, namely “removal centres” and “immigration
detention centres” (which are both managed by the private sector on
behalf of the government). The UK also has completely separate
holding centres for people who claim asylum at the border.
Proposal
938
Two options are presented here. Option A would maintain the status
quo. Option B would enable immigration officers to undertake
immigration detention in a place designated by the Chief Executive
of the Department of Labour. It would enable the Department of
Labour to manage detention outside of Police or Corrections facilities
on a short-term case-by-case basis, if practical. Option B is
preferred.
Option A – Status quo
939
Where secure detention is required, immigration detainees would
continue to be held in Police and Corrections facilities. If it became
practicable in the future, a dedicated unit for immigration detainees
could be established within Corrections facilities. Similarly, existing
detention arrangements with Police could be amended to provide for
segregated detention similar to that required for mental health and
youth offenders.
Benefits and costs
940
Maintaining the status quo would ensure that detention for
immigration purposes is managed by people with the appropriate
expertise. However, it does not provide the flexibility to
accommodate immigration detainees in more appropriate facilities.
Detention could not be undertaken outside of Police or Corrections
facilities.
941
New Zealand would continue to come under criticism for placing
immigration detainees with remand prisoners and convicted criminals
in Corrections and Police facilities.
Option B – Enable certain immigration officers to undertake
immigration detention outside of Police or Corrections facilities in
places designated by the Chief Executive of the Department of
Labour
942
194
The legislation would give immigration officers the power to
undertake immigration detention in places approved by the Chief
Executive for that purpose. This would enable immigration officers
194
and the Department of Labour to make use of the existing power of
the Chief Executive to approve a place as a place of immigration
detention. (This power is not currently used, as immigration officers
do not have the power to hold people in secure detention in any
circumstances.)
943
In practice, this would mean that the Department of Labour could
develop options, other than the use of Police or Corrections facilities,
for undertaking detention of people for immigration purposes. For
example:
•
the Chief Executive could declare a secure location at the airport
(with comfortable seating and ablution facilities) as a place of
immigration detention for short periods of detention prior to a
person’s removal from New Zealand, or
•
accommodation could be rented as required, or
•
adjustments could be made to existing facilities, such as the
Mangere Accommodation Centre.
944
The use of this power is most attractive for short-term detention.
The longer that detention is required, the more the costs and
logistics indicate that Corrections or Police should undertake the
detention. Actual decisions to approve a place for immigration
decision would require further work and decisions by government.
945
The government has no intention of building a dedicated immigration
detention facility and does not consider it practical to do so for the
small number of immigration detainees that require secure
detention. The capital and administrative costs associated with a
completely separate immigration detention facility would be
significant and would make such an option prohibitive. If the
numbers
of
longer-term
immigration
detainees
increased,
establishing a separate regime within existing Department of
Corrections facilities would be preferable.
946
To ensure the power was appropriately exercised, immigration
officers would have to be appropriately delegated and trained. They
would need to ensure their safety, and that of the person being
detained, remained the first priority. Regular judicial oversight, as
discussed elsewhere in this section, would also continue to apply.
Benefits and costs
947
195
Option B would allow the Department of Labour to hold immigration
detainees in a place that does not have any association with
criminality. This could reduce demands on Police and Corrections
resources and would allow for holding people in more appropriate
facilities and conditions. For example, a family group could be held
together rather than requiring them to be held in separate cells. It
would address international concerns over the use of Police facilities
in these circumstances and enable the government to uphold the
rights of the individual while maintaining the integrity of the
immigration system.
195
948
The establishment of a detention role for the Department of Labour
would require investment in terms of additional staff, training and
support, as well as clear and robust operational procedures and
guidelines.
949
The potential costs associated with this option would depend on the
types of places designated by the Chief Executive for immigration
detention, and the scale of the initiatives. Short-term facilities at an
airport are likely to have the lowest cost. Overnight detention
facilities would introduce significant increases in operational costs. As
noted above, any actual proposal to establish a new place of
immigration detention would require government approval.
12.6 Key question
1
196
Should the Immigration Act give effect to the Chief Executive of the
Department of Labour’s power to designate a place of immigration detention by
enabling designated immigration officers to undertake secure detention?
196
SECTION 13: THE ROLE OF THIRD PARTIES
Scope of section
13.1
When should a person’s immigration status be known to third parties
delivering a publicly-funded service?
13.2
What legislative provisions are required to facilitate sponsor benefits and
enforce their responsibilities?
13.3
What legislative provisions are required to facilitate employer benefits and
enforce their responsibilities?
13.4
What legislative provisions are required to facilitate education provider
benefits and enforce their responsibilities?
13.5
What legislative provisions are required to facilitate carrier benefits and
enforce their responsibilities?
197
950
Many people who engage with the immigration system acquire
benefits along with responsibilities. These people include both
individuals who come to New Zealand, and primarily New Zealandbased third parties who have a relationship with these individuals.
Third parties include sponsors, employers and education providers.
They also include the carriers (airlines and ships) that bring
individuals to New Zealand.
951
Given that third parties who engage with the immigration system
seek to benefit, it is appropriate for them to be responsible for
ensuring that their actions contribute to New Zealand’s immigrationrelated interests. For example, a sponsor who benefits from a family
member moving to New Zealand could be responsible for a period for
ensuring that the person does not become a burden on our welfare
system. An airline that profits from carrying a passenger should be
responsible for ensuring that the person is entitled to travel to New
Zealand.
952
This section considers the provisions required to provide a legislative
basis for third-party benefits and responsibilities in the immigration
system, and appropriate means to ensure compliance. It also
discusses ways to ensure that third parties have the information
required to undertake their responsibilities.
197
13.1
When should a person’s immigration status be known to third
parties delivering a publicly-funded service?
953
This subsection considers when a person’s immigration status should
be known to third parties delivering publicly-funded services. Third
parties that deliver publicly-funded services include government
departments and organisations in the wider state sector, such as
district health boards.
Status quo
954
Current privacy legislation requires information about a person,
including immigration status, not to be disclosed without that
person’s consent. Some exceptions to this rule apply in the
immigration context. For example, Subsection 10.1.1 discusses when
information must be disclosed to the Department of Labour to assist
the location of people unlawfully in New Zealand. In another
example, the Immigration Act allows the Department of Labour to
disclose certain immigration and personal information to the Ministry
of Social Development to allow that department to check a person’s
entitlement to social welfare assistance.
955
Immigration applicants consent to the sharing of health and
immigration status information between the Department of Labour
and health service agencies, by signing a declaration on immigration
application forms. There is also a declaration authorising the
Department of Labour to seek and share information with other
government agencies, including overseas agencies “to the extent
necessary to make decisions about my immigration status”.
What works well?
956
Disclosing information to the Ministry of Social Development ensures
that people receive their correct benefit entitlement and that benefits
are not granted to people who are not entitled to them. Information
can be disclosed to other agencies, on a case-by-case basis, with the
consent of the individual or for law enforcement purposes.
What are the problems/opportunities?
198
957
The New Zealand taxpayer bears the costs associated with the
provision of free or subsidised government services to those who are
ineligible for such services, but who cannot easily be identified as
being ineligible. This issue is most visible for health service
providers.
958
The Department of Labour can provide information about a person’s
immigration status to service providers with the individual’s consent.
Requests for this information are able to be made either in writing, in
person at a branch office or through telephoning the department.
However, the process for verifying that the individual has given their
consent is time consuming and often impractical. In some cases, the
current process may result in a barrier to those seeking to
legitimately access services. The review provides an opportunity to
198
ensure that there are no undue legislative barriers to sharing
information between agencies delivering publicly-funded services.
What do other countries do?
959
Australia’s immigration legislation allows the sharing of a person’s
immigration information with other government departments with an
interest in any of the following matters – law enforcement, national
security, national intelligence, education, health, community
services, social welfare, employment, labour, taxation, statistics,
quarantine, customs and excise.
960
The information includes a person’s name, date of birth, citizenship,
sex, class and subclass of visa, when the visa ceases to be in effect
and passport number. More specific personal information can be
shared with organisations and/or individuals who have obligations
under immigration legislation, such as employers or education
authorities.
961
In the UK, sharing immigration status information across
government is possible for a similar range of reasons to those
applying in Australia, but the rules are spread throughout statute
and common law. In some cases, information is disclosed under data
protection legislation. In others, immigration legislation provides
approval for sharing information. There is detailed guidance for
officials to ensure requests are handled according to the specific
rules that apply. For example, many benefits are administered in the
UK by a large number of local authorities. To ensure proper control
of disclosures, these can only be made to named offices or office
holders who have been approved to make status inquiries.
962
Canada’s approach is governed by federal privacy legislation, which
allows information disclosure in various circumstances, including
where it benefits the person, where another statute allows it and
where there is an information sharing agreement. Such agreements
include those made with provincial, local and regional health and
social services agencies.
Proposal
963
199
The status quo is not considered to meet the objectives of this
review because the government is not sufficiently protected from
ineligible migrants accessing publicly-funded services. An approach
has been developed that makes legitimate access to immigration
status information straightforward for third parties that need to know
for reasons of eligibility for publicly-funded services, while protecting
individual privacy.
199
Legislative authority to disclose immigration status information to
third parties to check eligibility for publicly funded services
964
200
The Immigration Act would give authority for the Department of
Labour to disclose immigration status information where it was
needed by a third party to:
•
assess eligibility for publicly-funded services
•
assess liability to repay the costs of a public service already used,
and
•
make an assessment under any other Act that requires an
assessment of immigration status.
965
In practice, this approach would allow information to be released
either through individual requests to the Department of Labour or
through automated systems.
966
Safeguards – As non-citizens’ specific consent would not be required
for the disclosures to be made, there would need to be safeguards.
These would include:
•
clear legislative provisions limiting the information that can be
released to that which is legitimately needed – any other
information sought would require individual consent
•
ways of advising non-citizens that certain information about them
can be disclosed (for example, general notification on websites
and immigration forms, and pre-arrival information for air and
sea passengers)
•
systems to ensure that access to information is restricted to
those organisations that need to know and, within those
organisations, to the individuals or units that need to know
•
penalties established
information, and
•
the ability for non-citizens to know who has been making
inquiries about their immigration status.
for
improper
access
to
or
use
of
967
The success of an immigration status-checking system within the
public sector may be enhanced if non-citizens do not suffer negative
immigration consequences from having their status checked. The
Department of Labour would therefore not be able to use information
from status checks in enforcement action or investigations. For
example, the Department of Labour would not be able to use the
location of a hospital making a status check on an individual in New
Zealand unlawfully to assist the location of that individual.
968
Information actually disclosed to third parties would be limited to
what was necessary in the particular circumstances. Information not
relevant to the third party’s needs would not be disclosed. For
example, in the health sector, it is likely to be sufficient to advise
that a person is a resident, an Australian or a work permit holder.
969
In all cases, the requesting agency would need to supply sufficient
biodata for the Department to verify the identity of the person
200
correctly and provide an accurate report of immigration status. This
biodata would usually include name, date and place of birth,
nationality and passport number.
970
Strong controls on the information disclosed are especially important
in the case of refugees. In order to maintain the protection that
refugees seek in New Zealand, there would continue to be strong
prohibitions on disclosure of the fact that a person has made a
refugee claim.
971
In addition, New Zealand has obligations to children under the United
Nations Convention on the Rights of the Child, including access to
health care and education. The new legislation would need to uphold
these obligations.
Benefits and costs
201
972
This option would remove the need to obtain individual consent for
the disclosure of information related to eligibility for publicly-funded
services, but would allow individual checks to continue. It would
clarify in the legislation what information could be shared and with
whom. This offers the opportunity to improve the speed and ease of
access to information. There could be a reduction in the level of
publicly-funded services provided to people who are not entitled to
receive them.
973
It also seems logical that entitlement to publicly-funded services on
the basis of immigration status should be supported by sufficient
information-sharing legislation to make entitlement rules effective.
974
A fast and efficient status check system, with safeguards, would
benefit non-citizens who are entitled to services. At the same time,
there are risks to an individual’s privacy inherent in any informationsharing process.
975
Prohibiting the Department of Labour from using status inquiries to
support enforcement activities would reassure public sector service
providers that they would not become a de facto immigration
enforcement arm. Such a use of information may also introduce an
unwanted incentive for some people to avoid accessing necessary
services (such as emergency healthcare).
976
There would be costs associated with the provision of this
information on a demand basis to third parties. These costs need to
be weighed up with the fact that the proposal aligns with possible
future developments in the immigration system. For example,
technology offers the opportunity to increase document security
through paperless systems for recording immigration status. Moving
away from stamping visas and permits in paper passports would
need to be supported by another way for third parties to check
immigration status.
201
An alternative considered
977
A non-legislative solution to give effect to an immigration statuschecking system could be to place a consent statement on all
immigration forms, including the passenger arrival card, which
currently has no such consent statement. Failure to give consent or
withdrawal of consent would affect a person’s permission to enter or
remain in New Zealand.
978
It is likely that many passengers do not fully take in the large
amount of information presented to them on the arrival card prior to
landing. While able to be relied on legally, many people are often
unaware of all the consequences of the consent they have given. It
seems likely that simply informing people, in background information
on leaflets and application forms, that there are circumstances when
immigration status information is disclosed is a better method of
conveying information.
979
In addition, consent given on an individual basis by a visa-free visitor
signing a declaration would require that the arrival card be located
and checked if it were to be relied on to disclose information. While
this may be feasible, it would add another administrative step to the
management of arrival cards.
13.1 Key question
1
202
Do you agree that there should be legislative authority to disclose immigration
status information to third parties that need to know in order to determine
eligibility for publicly-funded services?
202
13.2
What legislative provisions are required to facilitate sponsor
benefits and enforce their responsibilities?
980
This subsection considers what provisions are required to provide a
strong legislative basis for the benefits and responsibilities linked to
sponsors, and the mechanisms required to ensure they fulfil their
responsibilities.
981
Sponsors are people who seek to have friends or relatives come to
New Zealand, on either a temporary or permanent basis. They can
also be employers who seek to fill vacancies in their business that
cannot be filled by New Zealanders.
Status quo
982
203
The Immigration Act provides that temporary permit applicants may
be required to supply a written undertaking from a sponsor in
relation to costs associated with:
•
accommodation
•
maintenance (including any social services costs provided by the
government)
•
removal costs, or
•
any other matter that may be required.
983
Sponsors must generally be New Zealand citizens or residents. The
statutory obligations of a temporary entrant sponsor are to provide a
written undertaking and pay the government for any costs and
expenses incurred due to any failure by the temporary entrant to
comply with their permit conditions. Operational policy and
sponsorship forms set out the expected level of financial support and
assistance to be provided by the sponsor.
984
In practice, temporary sponsorship (sponsors of temporary entrants)
applies to visa-required visitors and overseas workers who cannot
otherwise demonstrate that they have sufficient funds to cover their
accommodation and maintenance while in New Zealand. Students
are not formally sponsored, but an individual may provide a financial
undertaking to meet the policy requirement that the student has
sufficient funds for his or her maintenance while in New Zealand.
985
In 2004/05, 36 percent of general visitor visa applications (36,983
applications) were recorded as requiring a sponsor – up from only 14
percent (or 13,651 applications) in 2000/01. The top five countries
of visitor applicants requiring a sponsor in 2004/05 were China,
India, Fiji, Samoa and Tonga.
986
There is no explicit legal basis for sponsorship responsibilities for
sponsors of permanent residents. The authority to require
sponsorship and set sponsor obligations is set out in immigration
policy. Permanent resident sponsorship is currently only required for
family migrants (excluding partners and dependants). These
sponsorship obligations relate to the provision of accommodation and
203
maintenance. In 2004/05, around 4,360 permanent migrants were
approved residence under policy requiring a sponsor.
What works well?
987
Sponsorship provides a system for managing and sharing risk. Risks
around access to social services are reduced, and immigrationrelated costs (such as locating and removing people who remain in
New Zealand unlawfully) may be recovered.
988
Sponsorship also allows some higher-risk applicants to enter and
remain in New Zealand who would otherwise be unable to do so – in
particular, visa-required temporary visitors from higher-risk
countries. Having sponsorship arrangements to facilitate the entry of
these people is of benefit to New Zealand sponsors, as it allows them
to spend time with their friends and relations.
989
As some employers act as sponsors, sponsorship facilitates the entry
of migrant workers who contribute to New Zealand’s economic
growth. The employer benefits by being able to fill vacant positions,
and there is an overall contribution to the economy. It assists in
meeting the objective of regulating entry in New Zealand’s interests
discussed in Section 3: Purpose and principles.
What are the problems/opportunities?
204
990
Policy intent unclear – The underlying intent of sponsorship is
unclear. The focus of current legislation and policy on the recovery of
costs suggests that the primary purpose of sponsorship is to reduce
the financial risk to the government. While this is one benefit, it is
also in New Zealand’s interests to allow some people to enter New
Zealand when they would otherwise be unable to do so. For
example, they may benefit employers by contributing needed skills
and labour, or visit friends or relatives in New Zealand and build
these relationships. It is important that these objectives are made
clear.
991
Lack of clarity/transparency around obligations – Sponsorship
responsibilities are scattered across legislation, operational policy
and sponsorship forms. This has reduced clarity around the benefits
and responsibilities of sponsorship and undermines the principle of
understandable and accessible legislation. Sponsors and applicants
tend to view sponsorship as a “paper exercise”, rather than a legal
undertaking, and are often not aware of the full extent of their
responsibilities. A key concern is that there is no explicit legislative
provision for responsibilities to be placed on permanent migrant
sponsors.
992
Restrictions on who may sponsor – Legislation currently restricts
sponsorship to natural persons. This means organisations or
companies are unable to sponsor migrants. The Talent Visa (Arts,
Culture, Sports) policy is one area where problems have arisen due
to this restriction. For example, the Royal New Zealand Ballet and
the New Zealand Symphony Orchestra are unable to directly sponsor
204
migrants and
sponsorship.
instead
have
to
find
individuals
to
undertake
993
Low incentive to comply/difficulties enforcing responsibilities – At
present, sponsor compliance is more likely to result from the
perception of negative consequences for failing to meet sponsor
responsibilities than from the actual enforcement of those
responsibilities. This is primarily due to the time and cost involved
with recovering debt.
994
Court action to recover costs and expenses from sponsors is often
impractical due to the relatively low cost owed by each sponsor. In
practice, the Department of Labour uses debt recovery agents in
preference to taking court action. The Department of Labour
established data-matching with the Ministry of Social Development in
2005 in order to allow the recovery of any costs relating to
sponsored permanent migrants accessing social welfare in their first
two years of residence.
995
While there is scope for tightening the wording of sponsorship forms
and undertaking greater enforcement activity within the existing
legislation, there is also an opportunity to provide for other
mechanisms for ensuring sponsors fulfil their responsibilities. There
is, for example, an opportunity to more explicitly extend the existing
legislative provisions for requiring bonds to sponsors.
996
Bonds are upfront payments of a specified amount that a sponsor
could make to the Department of Labour. They could be held in trust
and returned to the sponsor when it has been shown the visitor,
student or worker has fulfilled their permit obligations. If shown
otherwise, the bond could be used to cover any costs to New
Zealand (such as health or welfare costs) that have been incurred.
What do other countries do?
205
997
Australia has a broad enabling provision in its legislation allowing
regulations to prescribe criteria for sponsors under any visa
category. A business can be a sponsor where it is the direct
employer and the undertaking is made by a person with legal
authority to act on behalf of the business. The legislation includes
examples of sponsorship undertakings, including costs relating to
medical treatment, or locating, detaining and removing the person
sponsored. Australia tends to focus on managing risk upfront
through sponsor bonds (between $5,000 and $15,000), which are
required if there are residual concerns that an applicant may not
comply with the conditions of their visa. In 2003/04, a bond was
requested for 68 percent of Australian family visitors.
998
Canada also has an enabling provision in its legislation that provides
for sponsorship, with detailed requirements set out in regulations.
Sponsors undertake to provide accommodation, maintenance,
healthcare and social assistance, and are liable to reimburse the
government for any benefits received for the first 3–10 years of
residence (depending on the relationship with the sponsored
205
person). Sponsors are ineligible to sponsor further migrants while
they have any outstanding sponsor debts. Family sponsors are
ineligible if they have been convicted of an offence of a sexual nature
or an offence that results in bodily harm. Some provinces have
minimum sponsor income requirements to ensure they can meet
their undertakings.
Proposal
999
For the reasons noted above, the status quo is not considered
optimal. Two options are presented. At a minimum, Option A is
required to provide a strong, coherent legislative basis for
sponsorship benefits and responsibilities. Option B could be
implemented alongside Option A and would provide the ability to
enforce sponsor responsibilities better and thereby maintain integrity
of the immigration system. This is the preferred approach at this
stage.
Option A – Provide a stronger legislative basis for sponsorship
benefits and responsibilities
206
1000
The legislation would explicitly allow for the sponsorship of both
temporary and permanent applicants. Legislative provisions would
set out the responsibilities of sponsors and the minimum criteria for
eligibility as a sponsor. The detailed sponsorship requirements and
eligibility criteria would be provided in government immigration
policy.
1001
The types of responsibilities set out in legislation are likely to include
the matters already covered in the Immigration Act, such as
accommodation, maintenance and removal. They could also include
the costs of publicly-funded healthcare, given this is clearly an area
where New Zealand may incur a significant expense.
1002
It should also be possible for sponsorship obligations to be imposed
on businesses and organisations, including employers who make job
offers as part of a potential migrant’s residence application. Minimum
eligibility criteria for individuals acting as sponsors would include
requirements to be a New Zealand citizen or permanent resident.
The legislation could also provide for organisations and businesses to
sponsor temporary visa and permit applicants.
1003
As part of strengthening the legislative basis for sponsorship, a
general object statement outlining sponsorship benefits and
responsibilities could be included in the new legislation.
206
What would be included in an object statement for sponsorship?
1004
An object statement might be along the following lines:
The objective of sponsorship is:
a) to facilitate the entry of migrants where an immigration officer
considers they are likely to contribute to New Zealand’s interests
but are otherwise considered to be high risk, and
b) to ensure sufficient settlement support for new migrants, while
reducing the financial risk to the government.
Benefits and costs
207
1005
Providing a stronger legislative basis for sponsorship would assist in
clarifying the benefits and responsibilities of sponsors and ensuring
that the responsibilities are enforceable. This is consistent with the
principle of understandable and accessible legislation. It is
particularly important in the case of sponsorship of applicants for
permanent residence. The inclusion of more detailed requirements in
operational policy would provide the flexibility to update provisions
as required.
1006
Enabling businesses and organisations to act as sponsors would
broaden the potential pool of sponsors. This would reflect business
realities, where an application is not always sponsored by one
individual. For example, a high-risk potential worker seeking to come
to New Zealand could be sponsored by an employer. The employer
would benefit from filling a vacancy in their business. The applicant
would be allowed to come to New Zealand rather than being refused
a visa. Their presence would benefit New Zealand through the
contribution they made to the economy.
1007
Eligibility criteria for sponsorship would need to be robust to avoid
problems with enforcing sponsor responsibilities. The risk of
individuals declined sponsorship status (due to previous offending or
a poor sponsorship track record) attempting to sponsor under a
company name would also need to be managed. As noted, Australia
requires business undertakings to be made by a person with legal
authority to act on behalf of the business. In New Zealand, we would
want to ensure that a person who signs a sponsorship application on
behalf of a business has appropriate authority to do so.
1008
Whether or not an object statement is included in the legislative
provisions on sponsorship is a matter of legislative drafting. An
object statement would clarify the intent of the policy, and guide the
development of regulations and policy and subsequent decisionmaking.
207
Option B – Improve enforcement of responsibilities/strengthen
incentives to comply
1009
Legislative measures for strengthening incentives to comply would
include:
•
increased immigration sanctions, and/or
•
more explicitly providing for sponsor bonds.
1010
Increased immigration sanctions or consequences for the sponsor if
they fail to meet their sponsorship obligations would strengthen
incentives to comply with responsibilities. For example, sponsors
could be prohibited from sponsoring other people while they have
any outstanding sponsor obligation debts. The legislation would
enable immigration sanctions to be applied, with the detailed
provisions set out in government immigration policy.
1011
Bonds – A further aspect of this option is to align or amalgamate the
current legislative provisions allowing sponsors to be required to pay
a bond upfront with the sanctions regime. The prospect of monetary
loss would encourage sponsors to ensure that they and the person
they sponsored meet their responsibilities to the immigration
system. The bond would be forfeited if the applicant (and
consequently the sponsor) failed to meet responsibilities. This would
be similar to the Australian approach. The current legislative
provision for sponsor bonds requires supporting operational policy
and has not been activated to date.
1012
In both cases, some discretion would be available to waive the
consequences in appropriate cases, although it would be important
to maintain fairness and consistency. For example, a sponsor might
be exempted from meeting their obligations in cases of a relationship
breakdown or family violence.
1013
As noted above, there are also several operational responses that
could be implemented to improve enforcement of sponsorship
responsibilities to match the benefit sponsors receive. For example,
there is scope for increased monitoring and data-matching with the
Ministry of Social Development and health providers, and directing
increased resources towards enforcement. This could include
additional information-sharing that would build on the provisions
discussed in Subsection 13.1. The processes and sponsorship forms
used could also be reviewed to achieve more efficiency and
effectiveness.
Benefits and costs
1014
208
Ensuring sponsors fulfil their responsibilities is critical to the integrity
of sponsorship requirements. The ability to give and withdraw
“approved sponsorship status” would be an effective way of
providing incentives to comply. The use of a sponsor bond would also
create a strong compliance incentive, and avoid issues relating to
cost recovery given there is an upfront payment.
208
1015
Sponsor bonds would increase compliance costs on sponsors. This
could make it difficult for some applicants to find sponsors and for
some New Zealand citizens and residents to act as a sponsor.
Further policy work would require a detailed cost/benefit analysis,
with particular consideration given to any associated economic
impacts on New Zealand.
13.2 Key questions
1
Should the legislation provide a stronger basis for sponsorship benefits and
responsibilities as outlined?
2
Should there be specific immigration consequences for failing to meet sponsor
obligations as outlined?
209
209
13.3
What legislative provisions are required to facilitate employer
benefits and enforce their responsibilities?
1016
This subsection considers what provisions are required to provide a
strong legislative basis for facilitating employer benefits and
enforcing responsibilities.
Status quo
1017
Employer responsibilities in the Immigration Act are expressed as
prohibitions (offences). A three-tiered approach is taken to employer
offences as follows:
•
a first-level, strict liability summary offence for employing an
unlawful worker without reasonable excuse. A reasonable excuse
includes sighting an IRD tax declaration form. This is the lowest
level of offence
•
a second-level offence for knowingly employing an unlawful
worker, and
•
a third-level exploitation offence for knowingly employing an
unlawful worker and exploiting that person, including by
breaching the provisions of the Holidays, Minimum Wage, Wages
Protection or Employment Relations Acts.
1018
The Immigration Act provides maximum penalties of a $10,000 fine
for a strict liability offence, a $50,000 fine for knowingly employing
an unlawful worker and a $100,000 fine and/or seven years’
imprisonment for committing an exploitation offence. The level of
penalty for a third-level offence reflects how seriously the
government takes the exploitation of employees.
1019
Government immigration policy on employer sponsors also outlines
some conditions of sponsorship. Some of these conditions set a
higher standard for employer sponsors than the minimum standards
under employment legislation. For example, accredited employers
under the Talent Visa policy must be in a sound financial position,
have human resource policies and have processes of a high
standard. They must also have a commitment to training and
employing New Zealanders.
What works well?
1020
210
The Immigration Act establishes a clear responsibility on employers
to only employ people who are entitled to work in New Zealand. A
tiered approach to offences and penalties enables more severe
consequences for knowingly breaching this responsibility and for
more serious exploitation offences. Additional employer obligations
established in policy, such as the “good employer” standard for
accredited employers, provide an incentive for those who wish to
access migrant workers to maintain good employment practices.
210
What are the problems/opportunities?
211
1021
No legislative basis for other employer obligations – All government
immigration policy is broadly enabled under the current Immigration
Act. This allows the government to determine the minimum policy
requirements that employers must meet. There is no explicit
provision that outlines the consequences of failing to meet
responsibilities (such as inability to recruit further overseas workers).
This has reduced clarity and transparency around employer
sponsorship benefits and responsibilities that sit outside legislation.
1022
Checking entitlement to work – Employers who hire someone not
entitled to work in New Zealand are committing an offence. There is,
however, a wide range of documents that can prove a person is
entitled to work. While Department of Labour information on this is
available and education visits to employers are undertaken, some
employers, especially small businesses, may have difficulty in
maintaining the knowledge required to check work entitlement.
Employers can confirm work entitlement with the department, but
only with the employee’s written consent. This creates an
administrative burden for the employee, employer and the
department. It does not support the goal of an efficient immigration
system.
1023
Difficulty enforcing strict liability offence – While employer offence
provisions send a strong message to employers not to employ people
who are not entitled to work in New Zealand, no strict liability
prosecutions have been made since the provision came into effect in
June 2003. The ability of the Department of Labour to enforce the
responsibility under the Immigration Act is limited by the defence of
“reasonable excuse”. This defence is available to employers who
have sighted an employee’s tax code declaration form stating that
the person is lawfully entitled to work in New Zealand. There is no
requirement on employers to verify the accuracy of this declaration.
1024
Undermining incentives to comply with obligations – The inability to
enforce employer responsibilities undermines the incentives for
lawful work. It then undermines the objective of the immigration
system to regulate entry and stay in New Zealand’s interests. It
encourages people to enter New Zealand to work unlawfully and
enables people already here unlawfully to sustain their presence.
Unlawful workers are at greater risk of exploitation through substandard pay and employment conditions. Their presence in the
workforce may also reduce conditions and opportunities for New
Zealanders and other lawful migrant workers.
1025
High threshold for exploitation offence – The Immigration Act sets
employer responsibilities to comply with core employment
responsibilities at a low level. In addition to the sanctions for
employing people not entitled to work, the Immigration Act contains
an exploitation offence in the Immigration Act that covers serious
breaches of obligations to workers. Of course, there are separate
211
enforcement options under the relevant employment laws. There is a
risk of signalling that employers’ obligations to foreign workers are
less than those owed to New Zealand citizens and residents.
1026
Interface between immigration and employment law – New Zealand
employment law does not distinguish between New Zealand workers
and overseas workers. There may, however, be circumstances where
the employment rights of overseas workers differ from New
Zealanders’ rights. For example, migrant workers only have a right
to work for the length of their work permit while a New Zealander
employed on a temporary basis may, in some cases, have a
legitimate expectation of further employment.
What do other countries do?
1027
In Australia, employers face a strict liability offence (with a
AUD10,000 fine) for employing someone not lawfully entitled to
work. An internet facility is available for registered employers to
check immigration status and any work restrictions (such as number
of hours or specific employers). The maximum penalty for knowingly
employing illegal workers ranges from AUD13,200 for an individual
to AUD66,000 for a body corporate and/or two years imprisonment.
1028
In Canada, employers have clear responsibility for ensuring that
workers have authority to work. Guidelines clearly state that having
a Social Insurance Number is not proof that a worker has a valid
work permit. An employer who employs a foreign national without
authority is liable:
1029
•
on summary conviction, to a fine of up to CAD10,000 and/or
imprisonment for a term of up to six months, or
•
on conviction on indictment, to a fine of up to CAD50,000 and/or
imprisonment of up to two years.
UK employers are liable for a maximum fine of £5,000 for employing
unlawful workers (or an unlimited fine in a Crown court). Legislation
provides a statutory defence for employers who have checked and
copied specified documents when recruiting. These documents
include a UK passport or identity card, or a passport showing
entitlement to work in the UK by way of a residence permit,
exemption or work visa. Under current proposals, an employer who
employs an unlawful worker would be issued with an immediate fine
of £2,000. There is also a proposed offence of knowingly employing
an illegal worker, with a maximum custodial sentence of two years
and an unlimited fine.
Proposal
1030
212
For the reasons noted above, it is considered that the status quo
needs strengthening. Two options are presented. At a minimum,
Option A is required to provide a strong legislative basis for clearly
detailing employer responsibilities and is considered desirable.
Option B could be implemented alongside Option A and would
provide the ability to better enforce employer responsibilities, and
212
thereby maintain integrity of the immigration system. It could,
however, reduce the privacy of individuals and could have some
negative effects on migrant and ethnic communities. Submissions
are therefore sought on whether Option B should be developed and,
if so, how.
Option A – Provide a stronger legislative basis for employer
responsibilities
1031
Provision would be made to enable specific responsibilities to be
imposed on employers. At a minimum, this would include an explicit
legislative reminder that employers comply with all New Zealand
employment laws. To avoid any confusion about the interface
between immigration and employment law with respect to ongoing
employment, the legislation would make it clear that a migrant
worker is only entitled to undertake employment for the period of
their work permit.
1032
The legislation would also enable further responsibilities to be
established in government immigration policy. It would clearly
establish the consequences of failing to meet those responsibilities.
This would, for example, provide the basis for the “good employer”
requirements under Talent Visa policy that enable employers to
recruit overseas workers. It would be an enabling provision, giving
flexibility to impose requirements on employers on a case-by-case
basis.
Benefits and costs
213
1033
As discussed above, both employers and New Zealand benefit from
the ability for New Zealand employers to employ migrants and
temporary workers. Having a clear legislative framework for the role
of employers would help provide a strong foundation for the range of
policy initiatives underway to facilitate New Zealand employers’
needs for migrant workers.
1034
Including specific provision for responsibilities to be placed on
employers is consistent with the principle of understandable and
accessible legislation. While employers are already required to
comply with New Zealand employment legislation, including a
reminder of this requirement in immigration legislation would
reinforce to employers that every person who is legally entitled to
work in New Zealand is entitled to this protection. Clarifying that
work permit holders are only entitled to undertake employment for
the period of their work permit would make it clear that there can be
no expectation of ongoing employment and would protect New
Zealanders’ ability to access local employment opportunities.
1035
Enabling additional employer responsibilities to be set in policy would
mean that requirements such as the existing “good employer”
requirements in the Talent Visa policy could be established as
ongoing obligations on employers, and not simply a one-off
requirement to be met at the time of obtaining (or renewing)
213
accreditation. It would also provide the basis for establishing clear
immigration consequences if employers fail to meet their
responsibilities (for example, the loss of accredited employer status).
This would allow the Department of Labour to address noncompliance without having to take court action, and may provide a
strong incentive to employers.
1036
Imposing additional responsibilities on employers would increase
compliance costs for employers. The costs and benefits of
introducing a new policy obligation on employers would need to be
carefully considered in each instance.
Option B – Introduce employer obligation to check employee status
and remove tax code declaration reasonable excuse
1037
1038
The enforceability of the current strict liability offence might be
improved by:
•
introducing a new obligation in the Immigration Act requiring
employers to positively check (and cite reliable evidence) that a
prospective employee is legally entitled to work in New Zealand,
and
•
removing the “reasonable excuse” of having sighted a tax code
declaration.
The critical issue for employers would be how they can be satisfied
that a prospective employee is lawfully entitled to work and what
compliance costs this might involve. Effective tools would need to be
in place to support their obligation in a way that does not inhibit
their ability to recruit. These tools would include better education
and information. A further operational option would be to provide an
internet or fax system whereby registered and approved employers
could undertake checks that individuals were entitled to work. (This
approach is used in Australia.)
Benefits and costs
214
1039
This option might enhance the enforceability of existing offence
provisions and help to maintain integrity in the immigration system.
Employers would have to take steps to confirm that a prospective
employee is legally entitled to work, thus sharing the responsibility
for ensuring that only those who are entitled to work in New Zealand
do so. This would help to reduce the problem of people working
unlawfully in New Zealand.
1040
A requirement for employers to check immigration status would
impact on all prospective employees, including New Zealand citizens.
While most citizens would easily be able to establish their
entitlement to work, there could be compliance issues for some
citizens who do not hold a passport or birth certificate (or do not
wish to disclose details such as their date of birth).
214
1041
1042
More serious concerns about this approach include whether it could
lead to:
•
targeting of status checks on people who look or sound “foreign”,
which could impinge on the successful integration of migrants and
even New Zealand-born members of ethnic communities
•
possible breaches of privacy through unjustified status checks by
employers, and
•
greater potential for unscrupulous employers to become aware of
illegal workers’ status and blackmail them into accepting
exploitative conditions.
Removal of the tax code declaration reasonable excuse would
support the responsibility to positively check an employee’s
immigration status. It would reinforce the need to undertake a
reliable check of their status and would reflect the reality that a tax
code declaration is not a good indication of a person’s ability to work.
In practice, this excuse has made the strict liability provision
unenforceable. However, the concerns listed above are real and
would need careful consideration.
13.3 Key questions
1
Should immigration
responsibilities?
legislation
provide
a
stronger
basis
for
employer
2
Should employers be legally obliged to positively check that a prospective
employee is entitled to work for that employer?
3
Should the current “reasonable excuse” of having sighted a tax code
declaration be removed as a strict liability offence for employers, who would
be required to positively check a prospective employee’s entitlement to work
in New Zealand?
4
How could legislation support the obligation on employers not to employ
unlawful workers?
215
215
13.4
What legislative provisions are required to facilitate education
provider benefits and enforce their responsibilities?
1043
This subsection considers how the legislation should facilitate
benefits for education providers and enforce their responsibilities.
Status quo
216
1044
Like employers, education providers’ major responsibility under the
Immigration Act is expressed as a prohibition. It is an offence for
anyone conducting a course of study or training to knowingly allow a
person to undertake the course when the person is not entitled to
under the Immigration Act.
1045
A maximum fine of $2,000 is available for breaching this
requirement. An education provider is only deemed to have acted
knowingly, if, at any time within the preceding 12 months, they have
been informed in writing by an immigration officer that the person is
not entitled to undertake the course.
1046
In addition to responsibilities under the Immigration Act, current
immigration policy requires that all education providers offering
course places and training to international students must be
signatories to the Ministry of Education’s Code of Practice for Pastoral
Care of International Students (the Code). Any course of study or
training must be accredited or approved by the New Zealand
Qualifications Authority. This means that additional obligations are
placed on education providers under the Code and by the New
Zealand Qualifications Authority.
1047
There are a number of Code requirements that are directly relevant
to the immigration system. Among other things, signatories of the
Code are obliged to:
•
enrol an international student only if the student holds the
appropriate permit
•
if the student does not hold the appropriate permit, inform them
of the requirement to obtain a permit to study
•
not allow a person to undertake a course they are not entitled to
undertake
•
hold a photocopy of the student’s passport title page and current
permit
•
have processes in place to ensure that international students are
maintaining their course requirements, and to follow up in the
event that a student stops attending before course completion,
and
•
notify the Department of Labour if an international student’s
enrolment has been terminated.
216
What works well?
1048
Education providers’ responsibilities under the Immigration Act and
the Code support and reinforce each other. The majority of
obligations sit in the Code. This seems appropriate, as the Code is
concerned with the pastoral care of international students, and
immigration status is just one component of this.
What are the problems/opportunities?
1049
1050
A key problem is that there is a low incentive for education providers
to comply with immigration responsibilities. The Department of
Labour is aware that some education providers are not doing so. This
undermines the objective of maintaining integrity in the immigration
system. It is likely to be the result of a number of factors, including:
•
the low penalty of $2,000 for breaching obligations under the
Immigration Act and the relatively high cost to the Department of
Labour of pursuing a prosecution
•
even where an immigration offence is suspected, immigration
officials do not currently have the power to require information or
documents from education providers to assist them in proving the
offence, and
•
difficulties monitoring compliance (both with the Immigration Act
and the Code) and enforcing consequences of breaches of
responsibilities.
There are opportunities to improve the coordination between
government agencies working with education providers. These
opportunities are mostly located at the policy and/or operational
level and are not within the scope of this review.
What do other countries do?
1051
Education providers in Australia play a more active role in terms of
international student compliance and monitoring than their New
Zealand counterparts. For example, they are obliged to advise the
Department of Immigration and Multicultural Affairs if a student
breaches their visa conditions. Immigration officers also have strong
powers for requiring information to monitor compliance.
1052
Australia has a mix of sanctions for non-compliance, including:
1053
217
•
imposing conditions on registration or suspension of registration
(governed by the Code)
•
prosecutions with fines of around AUD6,000, and
•
infringements (as an alternative to prosecution) with fines
ranging between AUD400 and AUD2,000.
In the UK, responsibility for education provider obligations is outside
of the immigration arena and falls within the work of the Department
for Education and Skills. The Department has a Code of Practice
which includes guidance on enrolling overseas students.
217
Proposal
1054
For the reasons noted above, the status quo is not considered
adequate to manage immigration risks associated with New
Zealand’s international education industry. Two options are
presented. At a minimum, Option A is required to reinforce the
responsibilities of education providers. Option B could be
implemented alongside Option A and would provide the ability to
better enforce education provider responsibilities, and thereby
maintain integrity of the immigration system. This is the preferred
approach at this stage.
Option A – Cross-reference the Code in immigration legislation
1055
Immigration legislation would include a specific requirement that
education providers offering places to international students must be
signatories to, and comply with, the Ministry of Education’s Code of
Practice. The reference would be made to any code of practice
established under the Education Act so that any changes to the
name or form of the Code would not require a further change of
legislation.
Benefits and costs
1056
Including a reference to the Code in immigration legislation would
reinforce the fact that providers have a range of responsibilities in
relation to international students. The Code refers to Immigration Act
obligations, and doing the same in the Immigration Act would send
consistent messages about complying with the full suite of
responsibilities. Guidance would need to be provided on whether
sanctions for any breach would be applied through immigration
legislation or the Code.
Option B – Introduce measures to improve enforcement/incentives
to comply
1057
There are policy and operational level responses which could improve
both incentives for education providers to comply with their
responsibilities and the ability of government agencies to enforce
responsibilities (for example, improved information sharing or
increased compliance resources). The Ministry of Education and the
Department of Labour, in consultation with the export education
industry, are currently undertaking policy work to identify options for
improving monitoring and reporting in the sector.
1058
The ability to enforce education provider obligations would be further
strengthened through:
•
218
giving immigration officers the power to require information or
documents from education providers where they have reasonable
grounds to believe that an education provider has enrolled a
student unlawfully, and
218
•
a more flexible penalties regime that includes instant fines,
immigration consequences and prosecution.
How would a more flexible penalties regime work?
1059
A more flexible penalties regime would enable instant fines
(infringement notices) for minor breaches by education providers.
Prosecutions and immigration consequences could be used in cases
of more serious or ongoing breaches. Immigration consequences
could include suspension or removal of the education provider as a
Code signatory, with the flow-on effect that student permits could no
longer be issued for study with that particular provider.
Benefits and costs
219
1060
This option has the key benefit of strengthening incentives for
education providers to comply with their immigration-related
responsibilities, supporting the integrity of both the export education
sector in New Zealand and the immigration system.
1061
Enabling immigration officers to require information from education
providers would assist the Department of Labour in fulfilling its
compliance monitoring functions. It would also provide an alternative
mechanism for identifying that a provider had knowingly enrolled a
student who did not have appropriate authority to study (in addition
to formal notification by an immigration officer). Other agencies such
as the New Zealand Qualifications Authority already have the power
to request information from education providers, and such a power
would be consistent with powers already held by immigration officers
in comparable circumstances.
1062
Introducing a more flexible penalty regime would allow for a range of
responses to differing degrees or frequency of breaches of
immigration responsibilities. This is preferable to relying on the
single (and currently ineffective) offence provision with a $2,000
fine. It is therefore likely to improve enforceability and allow
responses to be more appropriately targeted to the particular
circumstance.
1063
A new penalties system would require initial funding to set up and
ongoing funding to administer. Consideration would need to be given
to which agency would be responsible for administering and
monitoring the scheme. Providers may view such a system as
increasing their compliance costs – however, no new obligations
would be imposed, just greater incentives to comply with existing
ones. Likewise, the requirement for education providers to provide
information or documents to immigration should not pose any new
compliance costs, as providers are already obliged to hold such
information and make it available to other agencies.
219
13.4 Key questions
1
Should immigration legislation include a reference to education providers’
obligation to comply with the Ministry of Education’s Code of Practice for
Pastoral Care of International Students?
2
Should immigration officers have the power to require information from
education providers?
3
Is there a need for a flexible penalties regime to address non-compliance by
education providers, including instant fines, immigration consequences and
prosecution?
220
220
13.5
What legislative provisions are required to facilitate carrier
benefits and enforce their responsibilities?
1064
The government needs to work with carriers to ensure that both
parties benefit from the immigration system and that systems are in
place to allow carriers to fulfil their responsibilities. The benefit to the
government is in ensuring the integrity of the system. Airlines
benefit from the ticket sale for travel to New Zealand. Airlines also
benefit from systems that help them to check that their passengers
are permitted to travel to New Zealand, as airlines must carry out of
New Zealand a person who is refused entry.
1065
Any legislative requirements for carriers would need to allow the
immigration system to manage increased mobility and heightened
security concerns, as well as allowing the carriers to manage their
businesses. Legislative requirements are not intended to create
unnecessary difficulties for carriers in doing business. Obligations
should be clearly defined to support the goal of understandable and
accessible legislation.
What is the definition of “carrier” and “craft”?
1066
In the context of the Immigration Act:
a) “Carrier”, in relation to a craft, means the owner or charterer of
the craft; and, where the owner or charterer is not in New
Zealand, includes the agent in New Zealand of the owner or
charterer or, if there is no such agent in New Zealand, the person
in charge.
b) “Craft” means any form of aircraft, ship or other vehicle or vessel
capable of being used to transport any person to or from New
Zealand from or to any country outside New Zealand.
Status quo
1067
1068
221
Carriers have a number of obligations to meet before departing
another country for New Zealand, including:
•
collecting information about passengers as part of the Advanced
Passenger Processing (APP) scheme and complying with APP
directives about whether or not a passenger may be boarded
(which seeks to prevent high-risk passengers arriving in New
Zealand), and
•
ensuring all passengers have the appropriate documentation for
immigration purposes, including evidence of onward travel
arrangements, permission to travel to New Zealand (visa or visafree), and a passport or certificate of identity.
Various offences exist in the Immigration Act for failing to meet
these obligations, with fines of up to $10,000 for the person in
charge of the craft or up to $20,000 for the carrier.
221
1069
New Zealand is a signatory to the Convention on International Civil
Aviation. The International Civil Aviation Organisation (ICAO) is
responsible for enforcement of the Convention, and aims to provide
a unifying influence in international civil aviation by setting standards
and universal practices. New Zealand has adopted many ICAO
standards.
What works well?
1070
The current legislation establishes comprehensive obligations on
carriers. Sea-going vessels generally meet their responsibilities in
this area well. For example, in the relatively rare instance of locating
a stowaway on a ship, the carrier will typically take immediate steps
to return the person to the place of origin. (Returns usually occur via
air, as it is uncommon for a ship to go directly back to its departure
port.)
1071
New sections of the Immigration Act enacted in June 2004 allow the
department to require carriers to use the APP system. APP has
prevented over 1,000 people who presented a risk from entering
New Zealand.
What are the problems/opportunities?
1072
The fundamental problem is that there are difficulties in enforcing
obligations on airlines. Immigration staff issue notices of
infringement at the airport to airlines that fail to fulfil their
obligations, but the infringement notices have no legislative basis.
They cannot be used to enforce airlines’ legal obligations.
Prosecution of airlines rarely occurs because it is expensive, timeconsuming and resource-intensive.
1073
Failure to prosecute means that there is no incentive for airlines to
meet their obligations. The high frequency of offences (such as
boarding passengers who do not have adequate documentation or
contrary to APP directives) means that risks are not always being
managed outside New Zealand. Border officials have to investigate
the effect of airline breaches when people who would not otherwise
be allowed to enter New Zealand arrive at the border. This is a
resource-intensive process and detracts from the ability to process
other passengers in a timely manner. There are also costs for the
traveller who may not have travelled to New Zealand if they knew
they would be turned around on arrival.
1074
Some minor adjustments are also required to the legislation to
enhance its clarity and effectiveness to provide for and enforce
carrier obligations. These are summarised in Option A below.
What do other countries do?
1075
Australia, Canada, the UK and the US all have similar obligations,
which are managed by instant fine regimes. Penalties are as follows:
•
222
Australia and the US both impose one level of fine – $5,000 in
their respective currencies for every type of breach, and
222
•
the UK imposes £2,500 per breach for uplift without passport or
visa.
1076
Both Australia and the UK allow officers to waive infringement
notices (and therefore the fine). This allows the airline to escape
penalty for an occasional lapse, whilst still allowing the airline to be
penalised for repeated breaches of their obligations.
1077
Canada has negotiated Memoranda of Understanding with the
airlines, which set out performance standards. As the airlines’ degree
of variance from these standards rises, the level of fine imposed
increases. There are three broad levels of fine linked to the degree of
variance from performance standards:
•
0–10% variance from standard – first level of fine
•
11–25% variance from standard – second level of fine
•
Over 25% variance from standard – highest level of fine.
Proposal
1078
Two options are presented here – the retention of the status quo,
with only minor clarifying amendments, and the introduction of an
instant fines regime. At this stage, there is no clear preference for
Option A or Option B.
Option A – Status quo, with minor amendments to the legislation
8
1079
This option would effectively preserve the status quo, with only
minor amendments made to the legislation for the purposes of clarity
and effectiveness. Provision for APP and liability on carriers to
remove anyone who proceeds through the system without the proper
authority would be retained. New Zealand would continue to apply
ICAO standards.
1080
The minor amendments would include:
•
providing greater clarity about the timeframe within which
information about a person’s travel plans must be provided to the
Department of Labour
•
clarifying that carriers need to check for evidence of tickets for
onward travel and funds
•
clarifying that responsibility for removal costs relates to people
without the appropriate documentation or approval, and may
extend to people who hold a visa issued under the Immigration
Act in certain circumstances 8 , and
•
removing minor inconsistencies in the Immigration Act regarding
removal procedures to ensure that people can be removed
quickly.
For example, if they are travelling on a false passport, or information has come to light after the
visa was issued that results in an APP directive that the person not be boarded.
223
223
Benefits and costs
1081
This option would largely retain the existing legislative provisions,
which would mean minimal adjustment. The proposed changes would
correct small operational anomalies and communicate more clearly
to carriers the exact nature of their obligations, thus providing for
understandable and accessible legislation. The amendments would
be consistent with ICAO standards and with the practice in ICAO
member countries (including Australia, Canada and the UK). This
option would not, however, address the current difficulties in
enforcing airline obligations.
Option B – Introduce instant fines for non-compliance
1082
The legislation would enable the Department of Labour to issue
instant fines (infringement notices) to carriers who fail to meet their
obligations. The level of instant fine would vary depending on which
obligation was not being met, and officers would have discretion not
to issue a fine depending on the circumstances.
Benefits and costs
1083
Introduction of instant fines would enable prompt action to be taken
in response to non-compliance by carriers. This would contribute to
the objective of providing for integrity in the immigration system.
Varying levels of fine would ensure that the penalty was closely
associated with the offence committed. While each penalty for an
individual breach of obligation may be small, the accumulation of
fines could achieve a strong incentive for carriers to comply with
their obligations. The introduction of instant fines would also help to
bring New Zealand practice in this area in line with comparable
countries.
1084
There would be some resource implications attached to this option.
Administrative arrangements for managing any new instant fines
regime would need to be worked through, although the Department
of Labour already has experience in that respect in administering the
Health and Safety in Employment Act. It would also be important to
ensure that there were clear guidelines in place regarding the fines
regime, giving specific details about what penalty applied in what
circumstance.
13.5 Key questions
1
Do you agree that the proposed minor amendments be made to the legislation
to clarify carrier obligations?
2
Should the legislation provide for an instant fines regime, to address noncompliance by carriers with their obligations?
224
224
SECTION 14: NEW ZEALAND’S ROLE AS AN
INTERNATIONAL CITIZEN
Scope of section
14.1
Which of New Zealand’s immigration-related international obligations should
be incorporated into immigration legislation?
14.2
How should refugee/protection status be determined?
14.2.1 What legislative provisions are required for broader protection status
determination?
14.2.2 What legislative provisions are required for refugee status
determination?
14.2.3 What legislative provisions are required to allow robust identity and
credibility verification?
14.2.4 What legislative provisions are required to appropriately limit
subsequent claims?
14.2.5 Are legislative provisions required to expedite determination in some
cases?
14.3
What provisions are required for the expulsion of protected persons?
14.4
Should New Zealand become party to the 1954 Convention Relating to the
Status of Stateless Persons?
225
1085
As discussed in Section 3: Purpose and principles, New Zealand has
an important role to play as a good international citizen and places a
high value on human rights. New Zealand is party to a number of
international agreements that have immigration consequences.
Some agreements are designed to ensure international protection
exists for those entitled to it. Other agreements uphold general
human rights that may need to be taken into account in the
immigration context.
1086
Currently, only the Refugee Convention is incorporated into
immigration legislation. However, the New Zealand courts have
found that a range of international human rights instruments that
New Zealand is party to must be taken into account in immigration
decision-making. These are currently incorporated into immigration
operational policy.
1087
This section primarily discusses options to set out relevant
international obligations in immigration legislation. This would
provide greater clarity and transparency in New Zealand’s
international protection regime, complementing the core refugee
protection regime. This approach would be similar to complementary
protection regimes in Canada, the United Kingdom (UK) and Europe
225
and was encouraged by the Executive Committee of the United
Nations High Commissioner for Refugees (UNHCR) in October 2005.
1088
New Zealand’s immigration-related international obligations are set
out in Table 12 below:
Table 12: New Zealand’s immigration-related international obligations
The 1951 Convention Relating to the Status of Refugees and the 1967 Protocol
Relating to the Status of Refugees (the Refugee Convention)
•
According to the Refugee Convention, a refugee is a person who is outside their
country of nationality or habitual residence and is unable or unwilling to avail
themselves of the protection of that country, due to a well-founded fear of being
persecuted for reasons of race, religion, nationality, membership of a particular social
group or political opinion.
•
The Refugee Convention requires New Zealand to meet a range of minimum
standards for the treatment of refugees, such as non-discrimination, access to
employment, housing, education and the courts. Most fundamentally, New Zealand
must not expel or return a refugee to any other country or border where their life or
freedom would be threatened on account of their race, religion, nationality,
membership of a particular social group or political opinion
•
A person who would otherwise be a refugee is excluded from protection where there
are serious reasons for considering that the person has:
•
•
committed a crime against peace, a war crime, or a crime against humanity
•
committed a serious non-political crime outside New Zealand prior to entry to New
Zealand, or
•
been guilty of acts contrary to the purposes and principles of the United Nations.
New Zealand may expel a refugee:
•
where there are reasonable grounds for regarding the refugee as a danger to the
security of New Zealand, or
•
following conviction for a particularly serious crime, the refugee constitutes a
danger to the community.
The 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (the Convention Against Torture)
•
Under article 3 of the Convention Against Torture, New Zealand must not expel a
person to another country where there are substantial grounds for believing that she
or he would be in danger of being subjected to torture.
•
Torture is a higher threshold than persecution under the Refugee Convention. It is
defined as any act by which severe pain or suffering is intentionally inflicted on a
person for such purposes as obtaining information or a confession, punishment,
intimidation or coercion, or for any discriminatory reason.
•
Torture is limited to actions perpetrated or sanctioned by the government, but the
risk of torture does not have to be related to race, religion, nationality, membership
of a particular social group or political opinion, as with the Refugee Convention.
•
Based on the view that torture is an inappropriate punishment in any circumstances,
article 3 does not exclude persons from protection in the same way as the Refugee
226
226
Convention, where they have:
•
•
committed a crime against peace, a war crime, or a crime against humanity
•
committed a serious non-political crime outside New Zealand prior to entry to New
Zealand, or
•
been guilty of acts contrary to the purposes and principles of the United Nations.
Similarly, unlike the Refugee Convention, article 3 does not allow New Zealand to
expel a person where there are reasonable grounds for regarding the person as a
danger to the security of New Zealand or, following conviction for a particularly
serious crime, the refugee constitutes a danger to the community.
The International Covenant on Civil and Political Rights (ICCPR)
•
The ICCPR sets out, among other rights, the right to life, the right to freedom from
torture and other cruel, inhuman or degrading treatment or punishment, the rights to
freedom of thought, conscience and religion, and the right to seek asylum.
•
Under article 6 of the ICCPR, every human being has the inherent right to life – this
right shall be protected by law and no one shall be arbitrarily deprived of life.
•
Under article 7 of the ICCPR, no one shall be subjected to torture or cruel, inhuman
or degrading treatment or punishment.
•
Articles 6 and 7 create absolute obligations not to send a person back to another
country in certain circumstances. They are not to be weighed up against other
factors, and there may be no exceptions to the prohibition on expulsion.
•
Much of the ICCPR has been incorporated into New Zealand domestic law through the
Bill of Rights Act 1990. In particular, the New Zealand Bill of Rights Act 1990 in
sections 8 and 9 sets out that:
•
no one shall be deprived of life, except on such grounds as are established by law
and are consistent with the principles of fundamental justice, and
•
everyone has the right not to be subjected to torture or to cruel, degrading, or
disproportionately severe treatment or punishment.
•
Under articles 23 and 24 of the ICCPR, the family is considered to be the natural and
fundamental group of society and is entitled to protection by society and the
government, and every child has the right to protection required by his/her status as
a minor.
•
Articles 23 and 24 are considered mandatory considerations in immigration decisionmaking, but must be weighed up against other factors such as the right of the
government to determine who should reside here, and the need to be fair to other
migrants who have not met policy and have left (or not come to) New Zealand.
The United Nations Convention on the Rights of the Child (UNCROC)
•
227
UNCROC sets out that the best interests of the child shall be a primary consideration
in all actions concerning children.
227
14.1
Which of New Zealand’s immigration-related international
obligations should be incorporated into immigration legislation?
1089
The Refugee Convention is currently incorporated into the
Immigration Act. Like the Refugee Convention, article 3 of the
Convention Against Torture and articles 6 and 7 of the ICCPR create
obligations not to return a person to a country where there are
substantial grounds for believing that they would be in danger of
being subjected to particular human rights abuses. This subsection
asks whether these obligations should also be incorporated into
immigration legislation.
1090
This section does not discuss incorporating international obligations
which do not present an absolute obligation not to return a person to
particular risk, such as articles 23 and 24 of the ICCPR and articles 3
and 9 of UNCROC. These obligations are characterised by the fact
that they may not be the decisive factor in the decision. Rather, the
decision-maker has to balance competing factors, such as the right
of the country to decide who should reside within its borders and the
need to be fair to migrants who have not met policy requirements
and who have left New Zealand.
Status quo
Article 3 of the Convention Against Torture
1091
New Zealand has agreed to the obligation under article 3 of the
Convention Against Torture not to return a person to another country
where there are substantial grounds for believing that she or he
would be in danger of being subjected to torture. Article 3 allows no
exceptions for criminal offenders or security threats.
1092
While New Zealand accepts the article 3 obligation and considers
claims when they arise, it is not incorporated into immigration
legislation. Instead, it is met through administrative processes
(discussed in detail in Subsection 14.2.1 below).
Articles 6 and 7 of the ICCPR
228
1093
Article 6 of the ICCPR requires that no one shall be arbitrarily
deprived of life. Article 7 of the ICCPR requires that no one shall be
subjected to torture or cruel, inhuman or degrading treatment or
punishment.
1094
While there is no express prohibition in the ICCPR against expulsion
of persons at risk of such treatment, there is widespread agreement
that prohibition should be inferred. In June 2005, New Zealand’s
Supreme Court (Attorney-General v Zaoui (No.2) [2005] NZSC 38)
found that sections 8 and 9 of the Bill of Rights Act and articles 6 and
7 of the ICCPR did not allow New Zealand to deport if:
1095
“…there are substantial grounds for believing that, as a result of the
deportation, the person would be in danger of being arbitrarily
228
deprived of life or of being subjected to torture or to cruel, inhuman
or degrading treatment or punishment.”
1096
EU countries (including the UK), Australia and Canada, the Human
Rights Committee, the European Court of Human Rights and the
Special Rapporteur on Torture support this view.
1097
There is no reference to articles 6 and 7 of the ICCPR in current
immigration legislation. Immigration operational policy, however,
requires that the ICCPR generally be considered (and weighed up
against other factors) prior to removing a person from New Zealand.
In a number of cases, de facto protection has been extended (by the
Department of Labour, the Minister of Immigration or the Removal
Review Authority) to individuals who face inappropriate treatment in
their home country.
What works well?
1098
To date, the current system has managed the small number of
claims brought under the Convention Against Torture. There have
been no recorded claims made under the ICCPR (although relevant
issues may have been raised in the context of humanitarian
appeals).
What are the problems/opportunities?
1099
It is anomalous, and potentially confusing to decision-makers, that
obligations which are absolute and directly linked to immigration
decision-making are not specifically incorporated into immigration
legislation. Such obligations arguably warrant a clear legal
framework and determination process that contributes to
understandable and accessible legislation.
1100
There are potentially complex issues to be worked through regarding
the definition of articles 6 and 7 of the ICCPR, such as what
constitutes cruel treatment and arbitrary deprivation of life. It would
be helpful for New Zealand to work these issues through in the
context of drafting legislation prior to any major challenges.
1101
This review also creates an opportunity to consider how New Zealand
should manage serious criminal offenders or threats to security who
are protected from expulsion from New Zealand by either the
Convention Against Torture or the ICCPR. As discussed in Section 3:
Purpose and principles, maintaining the safety and security of New
Zealand is a key purpose of New Zealand’s immigration system. It is
also an essential element in maintaining the credibility of any
protection regime under international law. People who violate the
rights of others should be prosecuted and punished in accordance
with the law.
What do other countries party to these conventions do?
1102
229
Australia has no specific reference to the Convention Against Torture
or the ICCPR in its immigration legislation or policy. Only the Minister
for Immigration has the discretion to consider these obligations. All
229
ministerial intervention requests involve an assessment of Australia’s
obligations under the Convention Against Torture and the ICCPR.
1103
Canada’s legislation allows those at risk of being subjected to
torture, or risk to life, or cruel and unusual treatment or punishment,
to be protected. Canada excludes protection if a person is
inadmissible on grounds of security, violation of human or
international rights, serious criminality or organised criminality, or is
named in a security certificate. Inadmissibility criteria can be waived
through ministerial intervention, however, and we are not aware of
Canada actually returning any person to treatment prohibited under
international law.
1104
The European Convention on Human Rights (ECHR) sets out that no
one shall be subjected to torture or inhuman or degrading treatment
or punishment (equivalent to article 7 of the ICCPR), and
jurisprudence has confirmed that this includes a non-return
obligation. The UK’s Human Rights Act 1998 gives effect to the rights
and freedoms guaranteed under the ECHR. Based on these
obligations, the UK grants protection where removal would be in
breach of the ECHR.
1105
In addition, in April 2004 the EU adopted an agreement defining who
should be granted protection in addition to convention refugees. This
agreement included persons who are not refugees, but for whom
there are substantial grounds for believing that, if returned, they
would face a real risk of suffering serious harm. Serious harm
includes the death penalty or execution, and torture or inhuman or
degrading treatment or punishment. EU countries must make sure
their national laws comply by October 2006.
Proposal
1106
For the reasons discussed above, the status quo is not considered
optimal for the future. At this stage, only one approach is considered
likely to meet the objectives of this review.
Incorporate absolute obligations into immigration legislation
1107
The obligations under article 3 of the Convention Against Torture and
articles 6 and 7 of the ICCPR would be incorporated into New
Zealand’s immigration legislation. Clear guidelines would be set out
to aid interpretation.
1108
New Zealand would clarify (in the appropriate legislation) the
mechanisms for dealing with persons who have committed very
serious crimes including, for example, torture or genocide, or who
are security threats but who cannot be expelled (for example,
prosecution, extradition or surrender to an international tribunal).
Benefits and costs
1109
230
Inclusion of article 3 of the Convention Against Torture and articles 6
and 7 of the ICCPR into immigration legislation would ensure that
230
the immigration implications were clear in domestic law. It would
allow for a clear process for determining claims to be set out in
legislation (discussed further below) and could ensure that New
Zealand is prepared for unanticipated future situations when claims
may increase. It also would be regarded as best practice
internationally and is encouraged by the United Nations.
231
1110
While this option may be perceived as a significant broadening of
New Zealand’s protection regime, in essence, it is simply clarifying in
legislation a protection regime that already exists and is
administered through the Minister of Immigration, the Removal
Review Authority, the Deportation Review Tribunal or departmental
discretion.
1111
The Australian Department of Immigration and Multicultural Affairs
has recently noted that there is no indication that there are
significant numbers of persons entitled to Convention Against Torture
or ICCPR protection who do not also meet the Refugee Convention
definition of a refugee. The development of legislative guidelines for
the interpretation of articles 6 and 7 of the ICCPR could, however, be
contentious.
1112
New Zealand may, at some point, be obliged not to expel a person
under either the Convention Against Torture or the ICCPR, even
though that person has committed a serious international crime such
as a crime against humanity, genocide or torture, or is considered to
be a security threat. Persons accused of such crimes may be
prosecuted in New Zealand (regardless of where the crime was
committed) or surrendered to an international criminal tribunal such
as the International Criminal Court in the Hague. Precedent has been
set for such prosecutions by the UK.
1113
Provision also exists to extradite such persons to a third country
where they can be prosecuted for their alleged crimes. Processes
could also be put in place to deport a person if the need for
protection disappeared.
1114
Clarifying in legislation the mechanisms for dealing with such cases
would ensure that robust processes were in place to deal with such a
situation, should it arise. New Zealand would be in a good position to
reassure the international community that, while we are committed
to our protection obligations, we are also very conscious of our
equally important obligation to ensure that perpetrators of serious
international crimes are brought to justice.
1115
Making Convention Against Torture and ICCPR obligations explicit in
legislation may generate awareness of New Zealand’s position on
this matter. This could create a “pull factor” for persons seeking
protection and for persons attempting to abuse the system. This risk
is mitigated by the fact that the EU, Canada, Australia and the
United States all have protection regimes in place for persons at risk
of torture; cruel, inhuman and degrading treatment or punishment;
and arbitrary deprivation of life.
231
Alternative not considered feasible
1116
The review has carefully considered whether legislation could exclude
persons from protection under the Convention Against Torture and
the ICCPR, who may be excluded or expelled under the Refugee
Convention (such as persons who threaten national security).
1117
The practical outcome of legislative exclusions would be that, in
some cases, New Zealand could be returning a person to torture;
arbitrary deprivation of life; or cruel, inhuman or degrading
treatment or punishment. As stated in the New Zealand Supreme
Court decision quoted above, this would place New Zealand in breach
of its international obligations and the New Zealand Bill of Rights Act.
1118
United Nations Committees that monitor compliance with the
conventions and investigate complaints could ask New Zealand to
report on and remedy any breach of its convention obligations. The
Convention Against Torture and the First Protocol to the ICCPR
provide complaint mechanisms for individuals to seek a ruling from
the relevant United Nations Committee on breaches of obligations.
Moreover, New Zealand could lose moral and political standing
internationally and an ability to influence the behaviour of other
countries in ways that we consider would promote regional and
global peace, security and development.
14.1 Key question
1
232
Should New Zealand’s international commitments to protect persons
facing torture; arbitrary deprivation of life; or cruel, inhuman or
degrading treatment or punishment be set out in immigration legislation?
232
14.2
How should refugee/protection status be determined?
14.2.1 What legislative provisions are required for broader protection status
determination?
1119
This subsection considers the process through which New Zealand
should fulfil its obligations under article 3 of the Convention Against
Torture and articles 6 and 7 of the ICCPR. (This is only applicable if it
is decided that these obligations should be included in immigration
legislation.)
Status quo
1120
As discussed above, there is no reference to the Convention Against
Torture or articles 6 or 7 of the ICCPR in the Immigration Act.
Instructions to immigration officers currently require these
obligations to be taken into account in removal processes. Claims
may also be dealt with by the Removal Review Authority, the
Deportation Review Tribunal and the Minister of Immigration, as
individual cases arise.
1121
Fewer than 20 people are known to have claimed protection under
article 3 in New Zealand, and only one claim has been successful on
torture grounds. No claims are known to have been made explicitly
under articles 6 or 7 of the ICCPR. The risk of cruel, inhuman and
degrading treatment or arbitrary deprivation of life may have been
raised in humanitarian appeals to an independent authority, the
Department of Labour or the Minister of Immigration.
What works well?
1122
The current processes for determining claims appear to have been
adequate to date, due to minimal claims being made, and there have
been no challenges via judicial review.
What are the problems/opportunities?
233
1123
Under the current system, decision-makers do not necessarily have
the appropriate expertise. There is the risk of inconsistent and
incorrect decision-making. Decisions are generally made on the
papers, and procedural safeguards may not be adequate in relation
to the potentially serious nature of the issue. As a result, the system
may be seen as inequitable and unfair, and decisions may become
vulnerable to judicial review. In addition, people genuinely at risk of
arbitrary deprivation of life; torture; or cruel, inhuman or degrading
treatment of punishment may not be aware of their ability to seek
protection.
1124
New Zealand has undertaken to consider, in the context of work on
the Immigration Act review, the United Nations Committee Against
Torture’s recommendations that “New Zealand consider establishing
a single procedure in which there is first an examination of refugee
status, to be followed by examination of other possible grounds for
233
the grant of complementary forms of protection, in particular, under
article 3”.
What do other countries do?
1125
Like New Zealand, Australia does not have a legislative process for
determining Convention Against Torture or ICCPR claims.
Consideration of all obligations other than refugee status is at the
discretion of the Minister for Immigration, following refugee status
determination, and is supported by departmental advice only.
1126
Canada and the UK both have single determination procedures that
assess refugee status and broader humanitarian obligations. Canada
has a single determination process that assesses refugee status and
whether a person is at risk of being subjected to torture or risk to
life, or risk of cruel and unusual treatment or punishment. The UK
has a single process that first assesses refugee status and then
whether they are at risk of the death penalty, unlawful killing,
torture, or inhuman or degrading treatment or punishment.
Proposal
1127
For the reasons discussed above, the status quo is not considered
desirable for the future. At this stage, only one approach is
considered likely to meet the principles of fairness, and effective and
efficient decision-making.
A single determination procedure
234
1128
Jurisdiction to determine claims under the Convention Against
Torture and articles 6 and 7 of the ICCPR would be given to refugee
status officers (renamed, for example, protection officers) at first
instance and the Refugee Status Appeals Authority (or a renamed
protection appeals stream of a single authority) on appeal.
1129
Claimants would be required to put forward any reasons why they
may have a claim for international protection under the Refugee
Convention, the Convention Against Torture and articles 6 and 7 of
the ICCPR. All claims, no matter how specific, would be assessed
according to the Refugee Convention, the Convention Against
Torture and articles 6 and 7 of the ICCPR. This would ensure that
subsequent claims could only be made on the basis of a change in
circumstances – not on the basis that a particular convention was
not assessed. (Subsection 14.2.4 discusses when subsequent claims
should be allowed in more detail.)
1130
There would be the right to a single appeal in respect of the first
instance decision that would assess the Refugee Convention, the
Convention Against Torture and articles 6 and 7 of the ICCPR.
1131
All legislative functions relating to refugee status determination at
first instance and appeal would be extended to the determination of
Convention Against Torture claims and articles 6 and 7 of the ICCPR,
including cancellation functions.
234
1132
If this option was adopted, further policy work would be required to
determine what immigration status should be given to persons
protected under the Convention Against Torture and the ICCPR.
Legislative provisions (such as restrictions on applying for further
permits or sponsoring family members to New Zealand) could be
introduced to lend integrity to whatever status is decided upon,
especially where such individuals face allegations of criminal
wrongdoing themselves.
Benefits and costs
235
1133
This approach would provide a clear process and specialist expertise
for the determination of all obligations where there is a clear
requirement not to return a person to particular human rights
abuses, strengthening New Zealand’s reputation as a good
international citizen. It is similar to the approach taken in Canada
and the UK and is strongly recommended by the United Nations
Committee Against Torture.
1134
This approach would create an efficient and robust approach to
assessing distinct obligations that require similar information
gathering and credibility assessments. It also provides for a strong
safeguard for ensuring that absolute rights are protected and
obligations discharged.
1135
While this approach would require a more complex determination
process than currently undertaken to determine refugee status
alone, the facts relevant to Convention Against Torture and ICCPR
determinations would already have been gathered by the decisionmaker. The decision-maker would only need to undertake a single
credibility assessment. This option would therefore reduce the risks
of inconsistent and incorrect decision-making.
1136
This approach could, however, be perceived as a significant shift in
New Zealand’s protection regime. It could be perceived as creating a
legislative protection regime that is too broad and open to abuse,
risking the good reputation of New Zealand’s current refugee
determination system.
1137
An increase in spurious claims could occur regardless of legislation
on this matter, given that these obligations already exist. For
example, refugee status claims in New Zealand rose from an average
of 10 prior to 1987 to 1,124 in 1991, but legislation was not
introduced on refugee determination until 1999.
1138
This approach would ensure that any increase in claims could be
managed by bodies with appropriate expertise. As demonstrated by
recent experience in refugee status determination, fast and fair
handling of cases is the most effective disincentive against spurious
claims.
1139
While this option would create efficiencies in the long term, there
could be medium to high initial establishment and transitional costs.
235
How would this proposal work in practice?
1140
A person claims protection on arrival in New Zealand on the basis
that there is a real chance that they would be tortured if returned to
their home country.
1141
Under the status quo – An indepth interview and significant research
is undertaken regarding the person’s personal circumstances and
relevant country information. The person’s circumstances are
assessed according to the Refugee Convention. The person’s claim is
found to be credible but does not meet the Refugee Convention
criteria and is declined. The person appeals to the Refugee Status
Appeals Authority and again is declined. The person is not eligible to
appeal to the Removal Review Authority because they have been in
New Zealand unlawfully for more than 42 days. The person is located
after living in New Zealand unlawfully for one year. Removal action is
taken and the issue of torture is again raised in the context of a preremoval departmental assessment and in an appeal to the Minister of
Immigration. The person is eventually allowed to stay.
1142
Under the proposal – On claiming protection, an indepth interview
and significant research is undertaken regarding the person’s
personal circumstances and relevant country information. The
person’s circumstances are then assessed according to the Refugee
Convention, the Convention Against Torture and the ICCPR. The
person’s claim is found to be credible and protection status is
approved at first instance under the Convention Against Torture.
Alternative options considered
1143
236
Two alternative options
considered optimal:
have
been
considered
that
are
not
•
Separate systems could be established parallel to the refugee
determination system to assess Convention Against Torture and
articles 6 and 7 of the ICCPR claims.
•
Convention Against Torture and articles 6 and 7 of the ICCPR
claims could be assessed in a pre-removal departmental
assessment without independent appeal rights.
1144
The first alternative would create extended delays in assessing a
person’s eligibility for protection. It would also require significant
doubling-up in terms of information gathering and credibility
assessments.
1145
The second alternative is not optimal given the potential seriousness
of the consequences of such claims. These instruments create an
absolute obligation not to expel a person in certain circumstances
and warrant a robust assessment with independent appeal rights.
236
14.2.1 Key question
1
Should Refugee, Convention Against Torture and articles 6 and 7 of the
ICCPR claims be assessed in a single procedure with a single right of appeal?
14.2.2 What legislative provisions are required for refugee status
determination?
1146
This subsection considers the legislative requirements needed to
manage:
•
the refugee status determination system onshore under the
Refugee Convention (around 400 claimed refugee status in
2004/05), and
•
the quota of 750 UNHCR-mandated refugees that New Zealand
selects offshore and resettles in New Zealand each year.
Status quo
1147
All claims for refugee status made in New Zealand must be
determined in accordance with the Immigration Act. The Refugee
Convention itself is not interpreted or redefined in the Act. Rather,
refugee status officers and the Refugee Status Appeals Authority are
required to act in a manner that is consistent with New Zealand’s
obligations under the Refugee Convention.
1148
The Immigration Act does not explicitly provide for UNHCRmandated refugees to be recognised as refugees in New Zealand,
although it is implied in the power of a refugee status officer to
cancel the status of UNHCR-mandated refugees. In practice,
refugees selected offshore are treated in the same way as refugees
recognised onshore.
What works well?
1149
1150
237
New Zealand has established a robust onshore refugee status
determination process:
•
The legislative provisions for refugee status determination allow
New Zealand to fully meet it obligations while allowing for flexible
processes.
•
New Zealand’s refugee status determination system is highly
regarded internationally for quality, robust decision-making and
for its independence from political interference.
Like all refugee status determination systems worldwide, New
Zealand does face abuse by non-genuine claimants. New Zealand’s
responses to such abuse have been largely effective:
•
Rates of asylum seeking have dropped markedly, as have rates
world wide. (There were only 395 claims in New Zealand in
2004/05, compared to 1,694 in 2000/01.)
•
Refugee status cancellation processes (where a person is found to
have obtained refugee status through fraud, forgery, false or
237
misleading representation or concealing relevant information) are
now underway (due to recent funding).
What are the problems/opportunities?
1151
While, in practice, persons brought to New Zealand under the
Refugee Quota Programme are treated as refugees according to the
Refugee Convention, domestic legislative support for this practice
could be made clearer.
What do other countries do?
1152
The UK’s system is similar to New Zealand’s status quo in that there
are no provisions in the legislation to recognise refugees selected
offshore.
1153
Australia and Canada have codified the selection of offshore refugees
in their legislation, although their practice is similar to New
Zealand’s. Canada relies on the UNHCR, other referral organisations
and private sponsoring groups to identify and refer offshore refugees
for resettlement. A visa officer then determines if the refugee
qualifies for Canada’s refugee resettlement programme. In some
circumstances, refugees may apply directly to Citizenship and
Immigration Canada. Australia also works closely with the UNHCR to
identify refugees most in need of resettlement.
Proposal
1154
Two options are presented, including the status quo. Option B is
likely to introduce greater clarity and transparency and is preferred.
Option A – Status quo
1155
Refugee status officers and the Refugee Status Appeals Authority
would continue to be required to determine whether a person is a
refugee within the meaning of the Refugee Convention, and to act in
a manner consistent with the Refugee Convention in carrying out all
their functions. All aspects of the Refugee Quota Programme would
be left to operational policy.
Benefits and costs
1156
The status quo has not caused any major problems in this area,
although it could be clearer and more transparent.
Option B – Provide for the recognition and selection of refugees
selected offshore
1157
238
Option B would retain the current provisions
makers to determine whether a person is
meaning of the Refugee Convention, and
consistent with the Refugee Convention in
functions.
that require decisiona refugee within the
to act in a manner
carrying out all their
238
1158
In addition, the legislation would:
•
enable the selection of UNHCR-referred refugees by New Zealand
refugee status officers offshore (with no appeal rights)
•
clarify that refugees selected offshore have the same status as
persons found to be refugees onshore, where they have been
assessed according to the Refugee Convention, and
•
clarify that no refugee may be expelled, except in accordance
with the Refugee Convention.
Benefits and costs
1159
This option retains the current provisions for incorporating the
Refugee Convention into New Zealand law that are successful and
well regarded. It would build on this solid foundation by clarifying the
legal status of refugees selected offshore and brought into New
Zealand as refugees.
1160
This option would not create any operational differences to the status
quo. It would, however, create legislation that was clearer, more
transparent and more accessible. It would anchor New Zealand’s
commitment to resettlement as a durable solution and to
international responsibility sharing. It would also create a clearer
framework for cancellation in cases where status was obtained
through fraud or misrepresentation.
1161
Enabling New Zealand to control the recognition of refugees selected
offshore could also allow New Zealand to enter into regional or global
refugee resettlement programmes other than the current UNHCR
programme. For example, this could enable New Zealand to work
closely with like-minded countries in the future to address
humanitarian crises in our own region.
14.2.2 Key question
1
Should immigration legislation recognise refugees selected offshore?
14.2.3 What legislative provisions are required to allow robust identity and
credibility verification?
1162
This subsection considers what powers decision-makers should have
to allow them to establish the identity and credibility of a protection
claimant, or a protected person where cancellation of status is being
considered. It also considers what the appropriate offences should be
to encourage compliance with these powers.
Status quo
1163
239
Decision-makers may determine a claim on the basis of the
information, evidence and submissions provided by the claimant. The
239
onus is clearly on the claimant to present their case (as case law on
this matter has reiterated).
1164
Refugee status officers also have the powers to require a claimant to
produce information that a claimant and some third parties have in
their possession or have access to. They may require them to
provide fingerprints, for the purpose of confirming identity or
nationality, and may require them to attend an interview. The
Refugee Status Appeals Authority may seek information from any
source and has the powers of a Commission of Inquiry. There are,
however, no offences or penalties for not complying with such
requests for information.
What works well?
1165
Requiring the onus of proof to rest on the claimant and empowering
the Refugee Status Appeals Authority to require information from
anybody both assist in creating robust, defendable decision-making
processes. They provide important mechanisms for testing identity
and credibility.
What are the problems/opportunities?
240
1166
Establishing a person’s identity is crucial to maintaining integrity in
the immigration system, but is often problematic. Many refugees or
persons fleeing torture do not have identity documents and, in such
cases, home country verification is generally not possible. Decisionmakers therefore require other mechanisms for establishing identity
and credibility.
1167
Not all asylum claimants are recent arrivals. Some have a significant
history in New Zealand that is relevant to assessments. Information
from other government departments may be pertinent to
determining claims for refugee status and can be highly relevant to
investigating cancellation cases.
1168
Refugee status officers can be hindered in their investigations by an
inability to obtain information from other government departments.
At present, refugee status officers must use the Official Information
Act 1982 or the Privacy Act 1993 to request such information. As
discussed in Section 10: Compliance and enforcement, occasionally
departments take the view that it is not within the bounds of the
Privacy Act to share the information (that it is not required for the
maintenance of the law).
1169
The only negative consequence for a claimant of not complying with
a decision-maker’s request for information is the possibility of a
decline decision. This is problematic in the context of:
•
clearly abusive claims where the claimant has nothing to lose,
and
•
cancelling refugee status where there are particularly strong
disincentives for a person to comply with any request of the
decision-maker.
240
1170
This review presents an opportunity to consider whether additional
obligations, powers, offences and penalties could be introduced to
improve the integrity of the determination processes in these areas.
What do other countries do?
1171
Australia’s legislation allows decision-makers to request a claimant to
make a statement to the effect that the information they have
provided is true and to provide documentary evidence of their
identity, nationality or citizenship. Depending on their response, a
decision-maker may draw any reasonable inference unfavourable to
the applicant’s credibility. Legislation allows decision-makers to
require fingerprints, height, weight, a photograph and a signature.
1172
In the UK, asylum caseworkers do not have a legal power to request
information from a claimant. As in New Zealand, the onus is on the
claimant to provide information that will substantiate his or her claim
for asylum. If the claimant fails to do so, the claim is likely to be
refused on the ground that the claimant has not made a case for
asylum.
1173
The United States routinely fingerprints all refugee status claimants
and their family members who are between the ages of 14 and 79.
The fingerprints are sent to the Federal Bureau of Investigation for a
background/security check.
Proposal
1174
For the reasons noted above, the status quo is not considered to be
robust. The approach outlined below is preferred and should be
considered alongside the options to extend the powers to require
information set out in Subsection 10.1.2 and Section 11: The use of
biometrics.
Strengthened obligations, powers and offence provisions
241
1175
Decision-makers would continue to determine claims on the basis of
the information, evidence and submissions provided by the claimant
and would retain current powers to request information. The powers
of any new roles created, such as protection officers, would be
aligned.
1176
The obligations of refugee/protection claimants would be clearly set
out in legislation, and would largely parallel obligations on visa and
permit applicants. These would include obligations to:
•
inform an officer of any relevant fact or material change in
circumstances that occurs after the claim is made, if that fact or
change might affect the decision on the claim, and
•
not attempt to procure refugee status by fraud, forgery, false or
misleading
representation
or
concealment
of
relevant
information. This obligation would mirror the grounds on which
status may be cancelled.
241
1177
Legislation could require other government departments to provide
information relating to a refugee claimant when requested by a
refugee status or protection officer, or member of the Refugee
Status Appeals Authority.
1178
New offences (with corresponding penalties) would be created for:
1179
•
providing false information in support of a refugee or protection
claim or appeal
•
resisting or intentionally obstructing any
officer in the exercise of their powers, and
•
without reasonable excuse, refusing or failing to produce any
available document or supply any information (including
fingerprints or photographs) when required to do so in the
investigation of a potential cancellation of status.
refugee/protection
This approach would work best with Option B in Subsection 10.1.2.
Under that option, legislation would require other government
departments to provide information relating to a person already
recognised as a refugee if that person was under investigation for
fraud.
Benefits and costs
242
1180
This approach would signal that abuse of the protection regime is not
tolerated in New Zealand and will have negative consequences. It
would better maintain integrity in the immigration system.
1181
The power to require information from other government
departments would better ensure the integrity of the refugee status
determination system. This could assist decision-makers in
identifying fraud or misrepresentation. It would lower the instances
of false claims being approved and thereby reduce the significant
costs and difficulty of cancelling status. It would complement the
powers to require information discussed in Section 10: Compliance
and enforcement relating to information sharing.
1182
In regard to the first two offences, prosecution could be pursued in
clearly abusive cases to deter attempts to abuse New Zealand’s
protection system. The third offence relates to cancellation only and
would introduce an incentive to comply where there is currently
none.
1183
This approach would signal that similar obligations under the
Immigration Act have corresponding offences and penalties for noncompliance. The corresponding offence provisions in regard to
immigration decision-making are used frequently. While they only
form part of a system with integrity, they are considered to be a
useful tool.
242
What difference could this proposal make?
1184
Numerous protection claims are made on the basis of false
information by individuals from a country where there is clearly no
risk of persecution. The intention of these individuals appears to be
simply to delay their obligation to leave New Zealand. Refugee status
is declined in all cases, but this fails to act as a disincentive, and
individuals from this country continue to make false claims. Under
the above proposal, prosecutions could be made for providing false
information in support of a refugee or protection claim or appeal.
14.2.3 Key question
1
Do you agree that the powers of protection status decision-makers and related
offence and penalty provisions should be strengthened as outlined?
14.2.4 What legislative provisions are required to appropriately limit
subsequent claims?
1185
This subsection considers in what circumstances a person should be
able to make a subsequent claim for refugee status or broader
protection, when an initial claim has been declined.
When might a person have grounds for a further claim to protection?
1186
A person whose claim has been declined may have grounds for a
new claim if their circumstances change significantly after the decline
decision. For example:
a) political regimes may change quickly in the home country,
introducing new policies that lead to the persecution of persons
with particular political or religious opinions or ethnic
backgrounds, and/or
b) the political or religious profile of a person or a close member of
their family may change significantly and/or become known to
agents of persecution in the home country.
Status quo
1187
243
Under the Immigration Act, a subsequent claim for refugee status
may not currently be considered unless the refugee status officer is
satisfied that “circumstances in the claimant’s home country have
changed to such an extent that the further claim is based on
significantly different grounds to the previous claim”.
243
1188
In practice, this is interpreted to encompass claims where a person’s
personal circumstances (such as their political or religious or family
profile) have changed, on the basis that their circumstances in the
home country would change as a result, if they were to return.
What works well?
1189
New Zealand must uphold its obligations not to return a person to
persecution and, at the same time, protect the refugee/protection
determination system from abusive repeat claims. It is appropriate
that a person may be able make a subsequent claim for protection,
in some cases. It is quite possible that refugee status or a risk of
being subjected to torture may arise after a person has been in New
Zealand for some time.
1190
It is also appropriate to establish a limit to subsequent claims (as the
status quo does) to prevent ongoing cycles of claims. Prior to the
introduction of the current limitation on subsequent claims, there
were significant numbers of abusive repeat claims. The current
threshold has reduced these numbers significantly.
What are the problems/opportunities?
1191
While the current jurisprudence allows subsequent claims to be
lodged where personal circumstances have changed, the legislation
could be interpreted differently in the future. On a purely literal
interpretation of the provision, a person could be found to be a
genuine refugee, but the claim could be invalid due to the limitation
of domestic legislation. This would be inconsistent with New
Zealand’s obligations under the Refugee Convention.
1192
In addition, the way the legislation is framed means that subsequent
claims must at least initially be treated as valid claims, no matter
how spurious they are.
What do other countries do?
244
1193
In Australia, legislation prevents people who have had a protection
visa cancelled, or have applied for protection and failed, from making
another claim. Australia only allows subsequent claims to be made at
the discretion of the Minister for Immigration, where it is in the
public interest.
1194
In Canada, the Immigration and Refugee Board that makes decisions
on refugee status claims will not consider an application by a
claimant who has had a previous refugee protection claim rejected, a
previous refugee protection claim determined to be ineligible or who
had a previous refugee protection claim withdrawn or abandoned.
The legislation provides for those who experience a genuine change
in circumstances to make their case for a subsequent claim.
1195
The UK accepts that conditions in the home country can change
quickly and allows a person whose asylum application is declined to
submit further representations. In some cases, further claims will not
have a right of appeal.
244
Proposal
1196
Two options are presented, including the status quo. At this stage,
there is no clear preference for Option A or Option B.
Option A – Status quo
1197
A subsequent claim for refugee status may only be considered where
the refugee status officer is satisfied that “circumstances in the
claimant’s home country have changed to such an extent that the
further claim is based on significantly different grounds to the
previous claim”.
Benefits and costs
1198
The current legislation prevents abuse of the refugee status system
by limiting when subsequent claims can be made. It may, however,
prevent a genuine refugee from making a subsequent claim and put
New Zealand in breach of its international obligations under the
Refugee Convention.
Option B – Allow subsequent claims when personal circumstances
(material to refugee status) change
1199
Subsequent claims would be limited to those who could demonstrate
that a significant change in circumstances had occurred that was
material to the person’s refugee or protection status, whether those
changes were in the home country or changes in the person’s
personal situation. The precise wording of this provision would need
to be carefully considered to ensure that it enabled New Zealand to
meet its obligations, while not inviting endless rounds of spurious
claims.
1200
Further, legislation could limit appeals against subsequent claims to
those “with leave” of the Refugee Status Appeals Authority (or
equivalent).
Benefits and costs
245
1201
This option more appropriately captures the changes in
circumstances that could lead to a genuine refugee or protection
claim. It may not have any significant impact on numbers and would
continue to allow subsequent claims to be turned around where there
was no change in circumstances. This option would also ensure that
a person did not automatically have a right to appeal against a
subsequent claim.
1202
It would be necessary from a public policy perspective that any
amendment manages the risk of spurious claims. Risks of an
increase in subsequent claims due to a perceived broadening of the
criteria would need to be managed through careful drafting and
careful management at an operational level. For example, refusing to
accept spurious subsequent claims, and deciding others quickly, is
likely to provide the greatest deterrent to abusing the system.
245
14.2.4 Key question
1
Should subsequent claims be explicitly allowed on the basis of a change in
personal circumstances (that is material to refugee status), either in the
home country or otherwise?
14.2.5 Are legislative provisions required to expedite determination in some
cases?
1203
This subsection considers whether legislative provisions should be
introduced to allow for expedited procedures in cases of:
•
manifestly unfounded claims
•
claims from persons who may have lived, or spent time on the
way to New Zealand, in countries where there is considered to be
protection from persecution, and
•
mass arrivals of claimants.
Status quo
1204
246
The current system provides for significant flexibility that allows each
of these scenarios to be dealt with quickly and effectively:
•
The legislation allows for refugee claims to be processed in any
particular order, which gives the flexibility for manifestly
unfounded claims or mass arrivals to be prioritised. Speedy
determination is the fairest and most effective deterrent against
abuse of the system.
•
Current legislation allows the Refugee Status Appeals Authority to
assess an appeal on the papers where the claim is manifestly
unfounded and a refugee status officer gave the opportunity for
an interview at first instance.
•
It is central to refugee determinations to assess whether a person
is not a refugee on the basis that they have access to protection
in a “safe country”, whether it is their home country or a third
country.
1205
A “safe country of origin” is a country where a person is safe from
persecution and should have no reason to claim international
protection.
1206
A “safe third country” is a country which is not the person’s country
of origin, but another country where they have the right to enter and
remain and where they would be safe from persecution and not in
need of international protection.
246
What works well?
1207
As noted, the current system provides for significant flexibility that
allows each of these scenarios to be dealt with quickly. In addition,
individual determination ensures the highest standards of fairness,
for which New Zealand has an excellent reputation internationally.
1208
Refugee status officers and the Refugee Status Appeals Authority
dealt with large flows of manifestly unfounded Thai claims in the late
1990s and early 2000s. This situation was managed by prioritising
the claims and allowing for interviews by refugee status officers only.
The quick turnaround minimised incentives to claim for the purpose
of buying time in New Zealand and has helped reduce the flow of
such claims to a minimum. At the same time, this process ensured
that any genuine claims had the chance to be heard.
1209
New Zealand experienced an assisted mass arrival in 2001, with the
131 refugee status claimants from the MV Tampa. Each claim was
individually assessed and, where declined, appeal was allowed for.
The MV Tampa claims were determined by a special project team
and processed quickly.
1210
New Zealand’s experience has shown that individual decision-making
is robust, can respond to mixed flows of illegal migrants or asylum
seekers and allows credibility to be assessed in each case. Combined
with administrative measures to expedite decision-making and low
rates of asylum seeking, the current legislation allows New Zealand
to maintain a rigorous determination system that is respected
internationally. It provides for a system that allows for effective
decision-making, efficient processes and fairness in the immigration
system.
What are the problems/opportunities?
247
1211
As discussed above, the current system is effective and efficient.
Options for change similar to other practices around the world are
not considered desirable.
1212
Other countries have employed mechanisms such as creating lists of
“safe countries of origin” or “safe third countries” to deal with
manifestly unfounded flows of claims. Such policies are controversial,
however, in that they move away from individual assessment,
increasing the risk of contravening our international obligations, and
can upset international relations with countries that may not be
listed as safe. They are not recommended by the UNHCR.
1213
Legislation could allow for group assessments in the event of a mass
arrival, but this is unlikely to be in New Zealand’s interests. Mass
arrivals are likely to contain a mix of claimants – both credible and
not credible. Mass approvals would be likely to approve some nongenuine refugees. Mass declines would be more difficult and would
require a mechanism for individual challenge. It is likely this would
remove any benefits of a group decline.
247
1214
Options for change in this area are therefore not discussed any
further.
14.2.5 Key question
1
248
Do you agree that there is no need for legislative change to deal with
manifestly unfounded claims, persons coming from or via “safe countries”
or mass arrivals?
248
14.3
What provisions are required for the expulsion of protected
persons?
1215
The Refugee Convention allows a person to be expelled in certain
cases where the seriousness of their conduct is considered to
outweigh their need for protection. This subsection discusses
mechanisms for expelling persons in New Zealand who are already
recognised as refugees or protected persons, or who are New
Zealand residents liable for expulsion who raise a protection claim.
(If a person is in New Zealand unlawfully, or on a temporary permit,
and they raise a claim for protection, they should be diverted
through the determination process discussed above.)
1216
A person lawfully in New Zealand who is a refugee according to the
Refugee Convention may only be expelled from New Zealand (to any
country) on grounds of national security or public order (article
32.1). However, a refugee may only be returned to a place where
their life or freedom may be threatened if:
1217
•
there are reasonable grounds for regarding the person as a
danger to the security of the country in which she or he is, or
•
having been convicted by a final judgment of a particularly
serious crime, constitutes a danger to the community of that
country (article 33.2).
In addition to the Refugee Convention obligations, a person may not
in any circumstances be expelled to torture; arbitrary deprivation of
life; or cruel, inhuman or degrading treatment or punishment.
Status quo
1218
The Immigration Act prohibits the removal or deportation of a person
recognised as a refugee in New Zealand, unless articles 32.1 or 33.2
allow it. Other absolute obligations prohibiting removal (the
Convention Against Torture and articles 6 and 7 of the ICCPR) are
not set out in the legislation.
What works well?
1219
New Zealand’s current approach does not attempt to re-interpret the
Refugee Convention in regard to when a refugee may be expelled
and therefore does not risk limiting or expanding Refugee
Convention obligations.
What are the problems/opportunities?
1220
249
Regardless of a person’s need for protection, in some cases, there
may be a serious risk to New Zealand if a person is allowed to stay.
The legislation needs to be very clear on the process for assessing
international obligations in the expulsion context to ensure that:
•
our international obligations are upheld, and
•
where appropriate, refugees are expelled.
249
1221
The requirements to assess our international obligations in the
expulsion process are not clearly set out in legislation, particularly in
regard to the Convention Against Torture and ICCPR. The
requirement to assess articles 32.1 and 33.2 prior to removal or
deportation of refugees is set out in the part of the Immigration Act
dealing with refugee determinations, and is silent on process or the
tests to be met. In the interests of clear and accessible legislation,
this requirement could be set out alongside expulsion processes and
could specify process and the tests to be met (including the relevant
articles of the Convention Against Torture, ICCPR and Refugee
Convention).
1222
The legislation could also be transparent on when the international
conventions allow expulsion to a third country where the person will
not face persecution.
1223
Those responsible for expulsion decisions, including the Deportation
Review Tribunal, may not have the expertise in applying articles 32.1
and 33.2 of the Refugee Convention, or other relevant international
obligations.
What do other countries do?
1224
Australia has strict character requirements that are applied to all
people who wish to travel to and/or remain in the country.
Exceptions to the Refugee Convention, in the case of refugees
regarded as a security concern or who have been convicted of a
particularly serious crime, have been incorporated into law. This
means that Australia has the provision to expel refugees that it
considers a threat to the safety or security of the country, as
provided for under the Refugee Convention.
1225
As a signatory to the Refugee Convention, Canada does not return
refugees to a country where they face persecution. Canada’s
legislation includes an exemption to the Refugee Convention in a
similar manner to Australia’s. Canada’s legislation clearly sets out in
which situations a refugee or protected person may be deported and
the process for doing so.
1226
In the US, refugee status may be terminated if the refugee has
committed certain crimes or engaged in other activity that makes
them ineligible to retain refugee status or to have that status
renewed. Refugee status does not equate to permanent residency in
the US and, along with cancellation due to character or security
concerns, the US can cancel refugee status and remove a person if
they are found to have adequate protection in another country.
Proposal
1227
250
For the reasons discussed above, the status quo is not considered to
be optimal for the future. The approach outlined below is likely to
meet the objectives of efficiency and understandable legislation and
is preferred.
250
Establish clear and coherent procedures for expulsion
1228
The new legislation would prohibit, in the part dealing with expulsion,
the expulsion of a person:
•
recognised as a refugee in New Zealand, unless article 32.1 or
33.2 allow it, or
•
protected under the Convention Against Torture or articles 6 or 7
of the ICCPR (other than to a safe third country where
appropriate).
1229
The legislation would clarify in which situations expulsion to a third
country may be a viable alternative. For example, persons protected
under the Refugee Convention, the Convention Against Torture and
articles 6 or 7 of the ICCPR may be expelled to a third country in
certain circumstances.
1230
In line with the option to streamline expulsion and appeal processes
discussed in Section 6: Exclusion and expulsion and Section 7:
Access to review and appeal, the assessment would be undertaken:
•
in the context of the independent appeal in the case of serious
criminal offenders or suspected terrorists, thus ensuring a
streamlined process, or
•
in the context of a departmental assessment prior to expulsion,
where the person did not make an independent appeal, or
•
by the Minister of Immigration, in the case of security threats (as
they have no right of appeal).
How would this approach work in practice?
1231
Mr A was granted refugee status. For the next three years, Mr A
travelled frequently between New Zealand and several other
countries trafficking drugs. He was eventually arrested in New
Zealand and convicted with numerous offences. Mr A served a fouryear prison sentence.
1232
Under the proposed approach, Mr A was liable for expulsion and a
permanent ban from New Zealand. Mr A had a single appeal to the
new immigration and refugee tribunal against expulsion. The
legislation gave clear guidelines as to what international obligations
allowed and prevented expulsion. The tribunal assessed that the
Refugee Convention allowed Mr A to be expelled from New Zealand
and that there were no exceptional circumstances of a humanitarian
nature.
Benefits and costs
1233
251
This approach does not create new grounds for expulsion. Rather, it
would clarify and create confidence that New Zealand can expel
individuals in some serious cases, where international obligations
allow. It would be clear that serious criminal offending by refugees is
not tolerated.
251
1234
This option establishes a clear legislative process for expelling
refugees and clear rules about not expelling other protected persons
where this is not permitted by the relevant convention. Expelling
refugees back to a country where they may face persecution is a
serious matter for the individual concerned. It is also one that is
likely to generate significant attention nationally and internationally.
The approach outlined above would uphold New Zealand’s good
reputation in this area, by ensuring that we have a clear process that
meets our international obligations.
1235
Combined with the option to create a single appeals authority, this
option would ensure that experts in refugee and international human
rights law were determining the required human rights
considerations prior to expulsion. Combined with the option to
establish a streamlined two-step process for expulsion (establishing
liability once only, followed by a humanitarian appeal if appropriate),
this option could create a more effective and efficient process, while
maintaining fairness.
14.3 Key question
1
252
Do you agree that specific provisions and procedures should be set out in
legislation to clarify when refugees or persons in need of international
protection may be expelled?
252
14.4
Should New Zealand become party to the 1954 Convention
Relating to the Status of Stateless Persons?
1236
This subsection considers the implications of becoming party to the
1954 Convention Relating to the Status of Stateless Persons (the
Stateless Persons Convention).
1237
In December 2003, Cabinet considered becoming party to the
Stateless Persons Convention. It decided that New Zealand should
not become party to the Stateless Persons Convention at that time,
because it would require legislative and operational change that
could have substantial costs, but invited the Minister of Immigration
to consider becoming party in the review of the Immigration Act.
What rights does the Stateless Persons Convention give?
1238
The Convention was explicitly adopted to ensure a minimum
standard of protection for stateless persons who are not refugees
and who are not covered by the Refugee Convention.
1239
The rights given to a stateless person by the Convention include
employment, housing, education, welfare, freedom of movement and
religion, and access to the courts.
1240
While there are differing interpretations of the Convention, it is
considered that the New Zealand courts would be most likely to find
that some standards of protection must apply to any stateless
person, regardless of their immigration status.
Who is a stateless person?
1241
According to the Stateless Persons Convention, a stateless person is
someone “not considered as a national by any state under the
operation of its law”. At the end of 2004, the UNHCR estimated that
there were 1.5 million stateless persons worldwide. This compares
with an estimated 9.2 million refugees worldwide.
1242
A common way that people become stateless is when the country
they were born in changes. This happened to groups, for example,
when the Soviet Union was disbanded and after the splitting up of
the former Czechoslovakia and former Yugoslavia into smaller
countries.
Status quo
1243
253
New Zealand is not party to the Stateless Persons Convention. In
practice, if a stateless person arrives in New Zealand without any
authorisation to enter, they are likely to apply for refugee status. In
recent years, very low numbers of refugee status claimants have
also claimed to be stateless. Some stateless persons are refugees
and are granted refugee status.
253
1244
Other stateless persons are not refugees, and there is no formal
mechanism for protecting them in New Zealand. In these cases, the
Minister of Immigration or an immigration officer may use their
discretion to grant the person a permit to stay. Otherwise, the
person would be liable for removal. It may be very difficult to
remove a stateless person if there is no country that recognises
them as a resident or citizen. The only alternative may be removing
the person to the country where they boarded the flight to New
Zealand.
What works well?
1245
Under the status quo, New Zealand has no specific obligations
regarding stateless persons, although they may be protected under
other international conventions that New Zealand is party to, such as
the Refugee Convention. This may be considered acceptable because
there are no groups of stateless people living in New Zealand. Where
a stateless person comes to New Zealand and is unable to be
removed, they are likely to be allowed to remain.
What are the problems/opportunities?
1246
Not being party to the Stateless Persons Convention may be viewed
as being potentially inconsistent with New Zealand’s broader human
rights policy and objectives to be a good international citizen. New
Zealand has long been an advocate of universal human rights and
the notion that everyone should be able to call upon a country to
respect, protect and fulfil his or her rights. Such reasoning underpins
our refugee policy and could extend to people who are genuinely
stateless.
1247
The UNCHR is clear that the Stateless Persons Convention is an
important instrument to avoid and resolve situations of statelessness
and further the protection of stateless persons. It encourages all
countries to become party.
1248
New Zealand faces a practical problem of how to deal with stateless
persons who present themselves here and are not eligible for
protection or any permit to stay. In practice, where a person cannot
be returned to any country, they are likely to be granted a permit as
an exception to policy (temporary or permanent, depending on the
circumstances). There is an opportunity to question whether New
Zealand wishes to formalise its response to such persons.
What do other countries do?
1249
254
As at February 2006, 59 countries were party to the Stateless
Persons Convention, including 13 of the 15 EU member countries. In
comparison, 145 countries were party to the Refugee Convention. In
light of the low take-up and continued problem of statelessness, in
1996 the General Assembly mandated the UNHCR to promote the
avoidance and reduction of statelessness globally by becoming party
to the Stateless Persons Convention.
254
1250
Australia and the UK are both party to the Stateless Persons
Convention. Australia is of the view that the Convention does not
confer a general right on stateless persons to enter or remain in
Australia unless the Refugee Convention applies. The UK is of the
view that statelessness in itself confers no right to remain. A
stateless person who did not qualify to remain in the UK on any
other basis would be expected to return to their country of former
habitual residence.
1251
Canada is not party to the Stateless Persons Convention for three
reasons:
•
Canada believes that the Refugee Convention, to a large extent,
duplicates the Stateless Persons Convention and that there is no
need to be party to both.
•
Canadian law contains all necessary safeguards
adequately the situation of stateless persons.
•
Canada has concerns that becoming party would encourage
stateless persons to come to Canada from other countries and
would encourage persons already in Canada to renounce their
citizenship.
to
cover
Proposal
1252
Two options are presented, including the status quo. At this stage
there is no preferred approach.
Option A – Status quo
1253
Under the status quo:
•
New Zealand is not party to the Stateless Persons Convention
•
a stateless person could be refused entry to New Zealand, unless
they claim protection under another convention that New Zealand
is party to
•
where a stateless person is in New Zealand unlawfully, the
Department of Labour may remove them to their country of
former habitual residence, and
•
where New Zealand cannot remove a stateless person because
there is no country that will allow them to enter, they may be
allowed to stay as an exception to policy.
Benefits and costs
255
1254
In practice, New Zealand is likely to grant protection to a stateless
person because of the range of existing protections available. There
is the possibility that, in some circumstances, a stateless person
would not be eligible for protection in New Zealand and may be
removed.
1255
New Zealand’s current practice is not in line with UNHCR’s
recommendations that countries become party to the Stateless
Persons Convention and establish statelessness determination
processes.
255
Option B – New Zealand becomes party to the Stateless Persons
Convention
1256
Under Option B, New Zealand would become party to the Stateless
Persons Convention.
1257
Where a person claims that they are stateless, legislation would
provide for a determination to occur in the single procedure
discussed earlier – alongside the determination of refugee status, the
Convention Against Torture and the ICCPR. As discussed above,
there would be a single right of appeal.
1258
Where a person in New Zealand was found to be stateless, they
would be given all of the rights as set out in the Stateless Persons
Convention. To facilitate access to these rights, stateless persons
would be granted a temporary or residence permit.
1259
Immigration legislation would reflect the obligation under the
Stateless Persons Convention not to expel a stateless person lawfully
in New Zealand, unless allowed under the Convention. The
Convention allows expulsion on the grounds of national security or
public order, or where there were serious reasons for considering
that the person had:
ƒ
committed a crime against peace, a war crime or a crime
against humanity
ƒ
committed a serious non-political crime outside New Zealand
prior to entry to New Zealand, or
ƒ
been guilty of acts contrary to the purposes and principles of
the United Nations.
Benefits and costs
256
1260
Becoming party to the Stateless Persons Convention would
strengthen New Zealand’s position as a country that supports efforts
to maintain international human rights standards. It could help to
address the practical dilemma of how to deal with stateless persons
New Zealand cannot remove.
1261
Option B includes a formal process to determine statelessness
claims. This is in line with the UNHCR’s view that a formal system
should be established to determine statelessness.
1262
There would be fewer costs in establishing this system, as a part of
the broader changes to the protection system proposed earlier, than
there were when government considered becoming party in 2003.
Costs could increase, however, if the number of stateless persons
coming to New Zealand was to increase and if there were attempts
to test or abuse the system. An increase in numbers may be a risk,
as other similar countries such as the UK, Australia and Canada have
not established explicit statelessness determination procedures.
1263
Similar concerns have been cited in Canada as reasons for nonratification. A 2003 report written for UNHCR did, however, note that
there is no evidence that an increase in statelessness claims resulted
256
in other countries which have ratified it. The downward trend in
illegal migration and asylum seeking may mean that such risks have
lessened for the time being.
1264
At this stage, there are likely to be minimal costs across government
from allowing stateless persons access to education, health and
other social services required by the Convention, because the
numbers are so low. These costs would increase if the numbers of
stateless persons coming to New Zealand were to grow.
14.4 Key question
1
257
Should New Zealand become party to the 1954 Stateless Persons
Convention?
257