Proposals

It is proposed that the Bill include a purpose statement.

It is proposed that the purpose of the Bill is to:

1. allow for immigration to New Zealand that ensures that New Zealand has the skills and labour it needs
2. contribute to the security of New Zealand's border
3. uphold New Zealand immigration-related international obligations
4. facilitate the settlement of migrants and refugees, and
5. balance the rights of individuals with the obligation of the government to manage immigration in the national interest, as determined by the Crown.

Status quo

The purpose of New Zealand's immigration legislation is not set out in the 1987 Act. Some of the amendments to the 1987 Act have included purpose statements outlining the specific reform or change involved.

Discussion paper and submissions

Ninety percent of 125 submitters agreed that there should be a purpose statement in the legislation. The discussion paper asked if the purpose of New Zealand's immigration legislation was "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". Just under half the 72 organisations and approximately 75 percent of the 53 individual submitters indicated support for the suggested purpose.

A number of submitters commented that the discussion of the purpose of immigration legislation placed too much emphasis on border security and that sovereignty issues need to be balanced against individual human rights. Submitters had a range of ideas about what further detail the purpose statement could include, for example:

• the New Zealand Association for Migration and Investment, and the Human Rights Foundation considered that the purpose statement should refer to recognising or upholding human rights
• the Human Rights Commission, and the Auckland District Law Society considered that it should refer to the Treaty of Waitangi and to the New Zealand Bill of Rights Act 1990
• the New Zealand Law Society considered that there was not sufficient recognition of the totality of New Zealand's immigration aims and obligations
• the New Zealand Council of Trade Unions commented that "any underlying definition of New Zealand's immigration-related interests, needs to be broadened to avoid use of immigration as a proxy for domestic training and skills development, to acknowledge the importance of a rights-based approach to migration and to recognise a wider range of international instruments"
• the Wellington Chamber of Commerce and other submitters considered the statement should be more proactive and refer to generating economic growth, competing for potential migrants and/or maximising the benefits of immigration
• a number of submitters including the New Zealand Federation of Ethnic Councils Inc. commented that the purpose statement should affirm the importance of successful settlement, and
• Auckland Refugees as Survivors Centre commented that "it is essential to cement into the...legislation, the recognition of the family as the fundamental unit of society and the Act should instruct any government to apply immigration policy in a way which will serve to strengthen and support families."

Comment

The submissions highlight the diverse range of views about the purpose of immigration. This diversity raises the possibility that an overly detailed purpose statement could be used in litigation over whether an individual decision or immigration policy category met the general purpose of the Bill, and/or correctly balanced the components of the purpose statement.

Litigation on the basis of a purpose statement would represent a risk to government's flexibility to make immigration policy and determine what is in the national interest. It may open up avenues of appeal against immigration decisions that were not intended by government.

The proposed approach responds to the key concerns in submissions including international obligations and individual rights, while maintaining government control. The proposed approach would allow the legislation to assist in the facilitation of the travel to, entry and stay of the permanent and temporary migrants that New Zealand wants, while ensuring fairness and transparency in maintaining the safety and security of the border.

The exact words of purpose statement will be finalised in drafting the Bill, and submitted to Cabinet for approval prior to the Bill's introduction to Parliament. Drafting a purpose statement that clearly determines who are subject to the provisions of immigration legislation would enable the Bill to clearly reflect the boundaries of the immigration system. For example, the immigration system has a distinct role in managing non-citizens at the border in the context of the wider set of border control functions performed, among others, by the New Zealand Customs Service.

Proposals

Status quo

Under the 1987 Act, and the New Zealand Bill of Rights Act 1990, every New Zealand citizen has a right to be in New Zealand at any time.

Non-citizens require authority to travel to, enter, and stay in New Zealand under the 1987 Act. They are obliged to leave New Zealand if they are here without authority and therefore in New Zealand unlawfully.

Discussion paper and submissions

The discussion paper did not seek specific comment on these fundamental issues. In general, explicit protection of New Zealand citizens' right to re-enter New Zealand was noted as a strength of the 1987 Act.

Comment

Accurate checking of citizenship in the immigration context protects the integrity of New Zealand citizenship and ensures that citizens are not subjected to controls intended for non-citizens. Controls for non-citizens can be managed through the requirement that they have a valid visa and comply with the conditions of that visa. The proposal for non-citizens to hold a valid visa provides a necessary foundation for the government's ability to manage their travel to and stay in New Zealand.

There are substantial differences in the rights available for non-citizens in New Zealand lawfully who hold a valid visa, and those in New Zealand unlawfully who do not. It is proposed that the distinction in these rights remains as a suitable incentive for non-citizens to maintain their lawful presence. The visa system is discussed in detail in Chapter Two: Visas. Chapter Three: Decision-making continues to enable the Minister to grant visas to non-citizens unlawfully in New Zealand, currently known as section 35A of the 1987 Act.

Proposals

It is proposed that statutory prohibitions continue to exclude certain non-citizens from New Zealand and constitute sufficient grounds to decline any visa application and to refuse entry permission (except for residents).

It is proposed that there be a delegable ministerial power to waive the application of the exclusion criteria but no right to apply for this power to be exercised and no requirement on the decision-maker to give reasons.

It is proposed that character policy set in Immigration Instructions continue to supplement the statutory exclusion criteria.

Status quo

The 1987 Act identifies grounds that make a non-citizen ineligible to enter New Zealand. These include criminal convictions, previous removal or deportation, being a threat to public safety and involvement in terrorism. A detailed discussion of the proposed exclusion criteria, and how it differs from the status quo is outlined in Table One below.

As well as legislative grounds for ineligibility, 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.

Special directions may be issued to waive the legislated exclusion criteria, and waivers may be made for health and character policy requirements.

Discussion paper and submissions

The discussion paper proposed that the Bill should contain provisions to exclude non-citizens from New Zealand who meet clear criteria relating to both character and health. There were strong reservations from submitters on the proposal for health exclusion criteria, which is no longer being proposed. Provisions for health criteria to continue be set in Immigration Instructions are discussed in Chapter Three: Decision-making.

Those that supported character exclusion criteria remaining in the legislation commented that this would enable non-citizens to determine whether any convictions would exclude them from entry. Transparency in character exclusion criteria was seen as desirable.

The New Zealand Law Society commented that there should be time limits after which exclusion based on convictions would cease, while other submitters were of the view that suspended sentences should not come within the criteria. The Human Rights Commission noted that exclusion criteria based on "glorification of terrorism" had been controversial in the United Kingdom.

Comment

The proposed exclusion criteria build upon the provisions in section 7 of the 1987 Act and are an important mechanism in maintaining the safety and security of New Zealand, and the integrity of the immigration system. It is proposed to increase the effectiveness of these criteria, as set out in Table One below, in light of the current global environment which has changed considerably since 1987.

National or international security, public order and public interest exclusion provisions are more subjective than other criteria and potentially involve political judgements. It may be appropriate for these powers not to be delegated by the Minister, or to be delegated only narrowly.

Unlike health criteria, character exclusion criteria relate to past or likely future convictions, actions or associations that put New Zealand at risk, and for which the person is culpable. The ability to build upon the legislative exclusion criteria in Immigration Instructions allows differentiation in character standards to occur between different classes of non-citizen or for different visa types.

Proposal

It is proposed that the Bill include the current provisions that give New Zealand-born children who are not citizens the most favourable immigration status held by either of their parents.

Status quo

The proposal mirrors the status quo.

Discussion paper and submissions

This issue was not raised in the discussion paper.

Comment

The provisions in the 1987 Act came into force through amendments on 1 January 2006 in response to changes to New Zealand citizenship law. There is no reason to revisit these provisions at this early date.

Proposals

It is proposed that the Bill:

1. allows fees and charges to be prescribed in regulations for any matter or service arising out of the Act, for them to apply to an individual or an application, and that they be calculated to reflect the variable nature of the cost or potential cost of the matter or service, as under the 1987 Act
2. allows for different fees and charges to be prescribed for the same matter or service dependent on a range of factors, such as the way the service is provided, the location where the service is provided, and the manner through which the fee or charge may be payable, as under the 1987 Act
3. allows fees and charges to be paid to a third party, who could manage the amount and transfer it to the departmental bank account
4. allows for the imposition of the migrant levy on non-citizens who are granted visas, as under the 1987 Act
5. allows provisions that set up an "Immigration Resettlement and Research Fund" where the migrant levy is held to allow it to be managed and allocated appropriately, as under the 1987 Act
6. exempts protection claimants from the payment of fees and charges related to their claim, as for refugee status claimants under the 1987 Act, and
7. provides for individual waivers and refunds of fees and charges.

Status quo

The 1987 Act allows for fees to be prescribed in regulations for any matter or service arising out of the Act, and for them to apply to an individual or an application. The 1987 Act also allows for different fees to be prescribed for the same matter or service dependent on a range of factors, such as the way the service is provided and the location where the service is provided.

Under the 1987 Act, charges are allowed for services in relation to the administration of the Act, other than matters for which a fee applies. These services include telephone information services, courier charges, access to library or research services, and the cost of bulk forms.

The 1987 Act does not explicitly prohibit the payment of fees and charges to a third party.

Discussion paper and submissions

These issues were not included in the discussion paper.

Comment

Most of these proposals roll over the current provisions, which provide a high degree of financial flexibility. The proposals for third party fee management and for regulations to prescribe (and restrict) the manner of payment give the flexibility to stop, for example, taking cash payments in specified circumstances. This offers enhanced protection for the applicant and the department from loss or theft of cash.

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