Proposal

It is proposed that New Zealand adopt the single term "visa" to describe all authorities to travel to or stay in New Zealand. It is proposed that visas would signify:

1. permission to travel to New Zealand - that there is no reason to believe that the holder will be refused New Zealand entry permission or transit permission if the conditions relating to travel are met, and/or
2. permission to stay in New Zealand - the conditions by which the holder must abide while in New Zealand after entry permission is granted or where a visa is granted onshore to extend a stay in New Zealand.

Status quo

The 1987 Act currently establishes visas (for travel to New Zealand), permits (permitting a stay in New Zealand) and exemptions, which exempt a variety of classes of non-citizen from the requirement to hold a visa, permit, or both.

Discussion paper and submissions

The discussion paper proposed the use of the single term "visa" for all travel and stay authorisation granted to non-citizens. Approximately 80 percent of 66 organisations and 65 percent of 45 individual submitters agreed. Most considered that the single term would assist clarity. Many submitters commented that the changes need to be well-communicated to stakeholders.

Comment

This proposal would bring the statute into line with the way the term "visa" is commonly used. It would reduce confusion for people interacting with the immigration system. It would also align with the practice in Australia. Non-citizens would still need to understand what their visas permitted them to do, and this would be an important component of the education and publicity accompanying the implementation of the new Act.

The remaining proposals in this section set out the detailed statutory provisions required to enable the visa system to function. Proposals at this level of detail were not in the discussion paper, and there is no further discussion of public views in this section.

Proposals

It is proposed that all non-citizens must hold a valid visa to before travelling to New Zealand, unless the requirement is waived individually or by class.

It is proposed that non-citizens must abide by their visa conditions.

Status quo

The 1987 Act requires non-citizens to hold a visa to travel to New Zealand, unless exempt. The 1987 Act imposes conditions and requirements on permits. There is no explicit provision in the legislation requiring non-citizens to abide by conditions.

Comment

These proposals provide basic components of a universal visa system. The requirement for a visa before travel, and ability to waive this, allows the non-citizen's intentions to be assessed before they reach New Zealand.

Proposal

It is proposed that only one visa may be held by a non-citizen at a time, and that each visa may be granted only to one non-citizen.

Status quo

It is possible under the 1987 Act for a permit or visa to be issued to more than one person. For example, a single visa could be issued where the parent and children were being issued with the same type of visa. In some cases, groups of non-citizens travel on one group visa.

Comment

The proposal reinforces the clarity of individual immigration status. Even in the increasingly infrequent cases of a child travelling on a parent's passport, the visa type granted to parents and children may differ where, for example, the parent holds a work visa and the children student visas. The facilitation provided by group visas could be maintained through the flexibility proposed below in setting the form in which visas are granted.

Proposal

It is proposed that a distinct decision on entry permission would be made at the border. It is proposed that where entry permission is granted:

1. a visa holder would be permitted to stay subject to the conditions of the visa held on arrival, or
2. a visa holder could be granted a new visa with conditions considered more appropriate, cancelling the existing visa, or
3. where the requirement to have a visa before travel has been waived, a non-citizen would be granted a visa allowing a stay in New Zealand of the type and conditions established in Immigration Instructions.

Status quo

In the case of a non-citizen holding a visa to travel to New Zealand, the visa type indicates the permit type to be granted, along with any conditions that are likely to apply to the non-citizen's stay. Under the 1987 Act, permits granted on arrival in New Zealand signify entry permission and set the conditions of stay.

Comment

The proposal for an entry permission decision mirrors the current function performed by the grant of a permit at the border. The factors and decision-making process taken into account in making entry permission decisions would vary according to the immigration status of the passenger. Permanent residents would be guaranteed entry, and there would be a greater degree of control over temporary entrants or limited visitors. Entry permission decisions would also continue to be subject to the exclusion criteria outlined in Chapter One: Core provisions.

Proposal

It is proposed that visas that give permission to travel to New Zealand would be able to be granted for single, multiple, or a set number of journeys.

Status quo

The proposal reflects the status quo.

Comment

The ability to specify the number of times a visa may be used to travel to New Zealand assists the management of risk. In most cases, the ability to make multiple journeys during a longer stay in New Zealand is appropriate, for example for long term students. The settings for specific classes of non-citizens or policy categories would be set by Immigration Instructions.

Proposals

It is proposed that for visas allowing time-limited stay (see Visa types below), the following rules should apply:

1. the start date and expiry date, or validity period, of a visa are to be specified when it is granted and this could be tied to a specifically defined event or be expressed in days, weeks, months or years
2. the start date of a visa may be the date of grant, a future date, or a past date
3. the start date and expiry date may specify the periods of permission to travel to New Zealand and/or permission to stay in New Zealand, and
4. visas are cancelled on the start date of any visa subsequently granted.

It is proposed that a visa expires when the holder leaves New Zealand, unless the visa allows re-entry and the non-citizen is granted entry permission on return to New Zealand.

Status quo

The proposal largely mirrors the status quo. The 1987 Act enable visas and permits to have different validity periods and dates, including retrospective start dates. Under the 1987 Act, permits, which allow a person to stay in New Zealand, expire when the holder leaves New Zealand.

Comment

The proposal to allow validity to be tied to a specifically defined event would be available for future use. It would be used only where it maintained absolute clarity for non-citizens about their status. The retention of retrospective start dates would allow periods of unlawful stay in New Zealand to be removed from the record where these were not the non-citizen's fault.

This proposal also provides clarity about when the conditions of stay of a visa expire. For example, it is important that it is clear that a visa that did not carry re-entry permission ceased to have any effect when the holder left New Zealand. From the non-citizen's point of view, it would be important to clearly communicate where a visa did not allow travel, for example, by including this specific advice on the visa.

Proposal

It is proposed that the grant of New Zealand citizenship cancels any visa held.

Status quo

The 1987 Act is silent on the effect that the grant of citizenship has on visas, permits and exemptions, and this has been the subject of some debate.

Comment

It is consistent with a citizen's right to be in New Zealand that they do not hold visas, which are designed to manage non-citizens. This review provides an opportunity to clarify the legal distinction between the status of citizens and non-citizens. This proposal would not affect the ability of New Zealanders to hold another nationality, and providing for New Zealand citizens to travel on non-New Zealand passports is discussed below under Declaratory citizenship endorsement.

The effect of this proposal is that if citizenship is subsequently lost, the non-citizen would be liable for deportation which is discussed further in Chapter Five: Deportation.

Proposals

It is proposed that the Bill allow the cancellation of a temporary entrant, transit or limited visitor visa held by a non-citizen who is offshore or who has been refused entry at the border.

It is proposed that a visa granted in error at a departmental office (for example, where the wrong type of visa is granted or where incorrect conditions are set) may be cancelled at any time before either:

1. the visa has left the departmental office, where evidence of the visa is physical, such as a label endorsed in a passport, or
2. advice of the visa has been sent, where evidence of the visa is not in a physical form.

Status quo

The 1987 Act does not explicitly provide for the cancellation of a temporary visa but contains clear powers and processes for revoking permits. Legal opinion allows visa cancellation to take place in practice. The 1987 Act provides for permits to be revoked, if granted in error, before the non-citizen takes the permit from the office.

Comment

The ability to cancel temporary entrant, transit passenger, or limited visitor visas offshore or at the border is an important management tool. Cancellation would generally occur when there is cause to reconsider the initial assessment that there is no reason to believe that the holder will be refused entry. If a non-citizen is refused entry, it is appropriate that any visa held should not be reusable allowing a return to the border. The power to correct errors before the non-citizen is able to be affected by them upholds the integrity of the immigration system and clarity of status.

Proposal

It is proposed that:

1. standard visa conditions may be set for specified classes of non-citizen or policy category by regulations and Immigration Instructions
2. when a visa is granted, standard conditions may be varied
3. the conditions of an existing visa may be varied on application or, with notification, at the initiative of an officer, and
4. that regulations or Immigration Instructions would govern the use of the legal power to vary conditions.

Status quo

The 1987 Act allows temporary permit conditions to be set for classes by regulations, policy, or special direction. Special direction may be used before, on or after the grant of a permit.

Comment

A legal mechanism for setting conditions by class provides for clarity and predictability for those non-citizens who are issued visas under a policy that has common conditions, for example, all the participants in a working holiday scheme would have the same conditions. The power to set conditions individually gives the flexibility to tailor visa conditions, for example to allow work for a particular employer, or in a particular industry.

Proposals

It is proposed that, in order to maintain the flexibility to use future technology, the Bill should specify that:

1. a visa is a record held by the Department in manner prescribed by Immigration Instructions (an electronic form is likely to be the default)
2. the type of evidence of their visa that non-citizens are to be given is to be specified in Immigration Instructions (Chapter Three: Decision-making proposes that the chief executive would be empowered to prescribe the visa format), and
3. non-citizens may receive or check evidence of their visa and its conditions on request.

It is proposed that ignorance of visa conditions is not a sufficient defence against a failure to meet visa conditions.

Status quo

The 1987 Act provides for visas and permits to be granted in an electronic form or endorsed in a passport, with both options currently in use.

Comment

Available and future technology offer various ways for non-citizens to hold evidence of their visas. These proposals reflect the increasing use and effectiveness of systems that check immigration status with the issuing authority, such as the Advance Passenger Processing system for offshore pre-boarding immigration checks. Establishing the authoritative visa as a departmental record allows the types of evidence of the visa to be varied according to circumstances. For example, a tourist in New Zealand for a short visit is less likely to need detailed evidence of their status than a permanent resident seeking to access services and entitlements.

Given the serious consequences for non-citizens breaching visa conditions, it is important that they are able to check them. This proposal would be governed by strong privacy safeguards when implemented, but would be future-proofed to allow any future technology to be used.

Proposals

It is proposed that the Bill should provide for the requirement to have a visa before travel to New Zealand to be waived through:

1. regulations for classes of non-citizen and to set any criteria or requirements related to the waiver
2. a non-delegable Ministerial power to suspend or grant waivers for up to three months, pending regulations, and
3. a delegable Ministerial power to grant or suspend a waiver in relation to an individual.

It is proposed that it also be possible to deem visas permitting a stay in New Zealand to have been granted in situations specified in regulations or Immigration Instructions.

Status quo

Visa and permit exemptions are currently made, in both the 1987 Act and through regulations, to vary the level of pre-entry and immigration border screening for specified classes of non-citizens. Exemptions can allow travel to New Zealand without a visa, with a permit granted on arrival at the border. This mechanism is used for the entry of visa free tourists from over 50 countries. Some exemptions allow travel without a visa and a stay without a permit.

Diplomatic and consular officials, crew and passengers of seagoing craft, visiting forces and persons travelling to and from Antarctica, some fishing crew, the crew of commercial aircraft, and the crew and passengers of an international vessel authorised to undertake domestic trade come within the existing exemption provisions.

Discussion paper and submissions

Approximately 75 percent of 81 submitters agreed that the visa system should continue to allow for the equivalent of exemptions.

The discussion paper noted that the current Australian exemption would remain in effect, perhaps using different terminology. There was no substantive public comment on this issue.

Comment

These proposals would bring all non-citizens within the visa system. They would allow the facilitative effect of the current exemptions to continue without any actual increase in the current levels of immigration documentation and assessment, unless there were specific policy decisions requiring change made by Cabinet. They would, however, give greater flexibility for Cabinet to amend the effect of exemptions in the future without requiring legislative amendment

It has been necessary to suspend some visa waiver arrangements to manage, for example, unacceptable levels of unlawful working or unfounded refugee claims from non-citizens who may enter as visa-waiver visitors. Creating a ministerial power to suspend or grant for a limited period would allow a faster response to risk by dispensing with the need to make regulations initially. The ministerial power could also enhance flexibility by allowing for short term suspension or imposition of visa waivers.

The power to give or suspend individual waivers could be used in emergencies, along with the power to waive the requirement to hold a passport, for citizens and non-citizens alike.

Comment

Maintaining different visa types broadly reflects the different reasons non-citizens come to and are sought by New Zealand. These reasons range from permanent migration to passengers remaining in an airport lounge while transiting New Zealand. Making provision for temporary flows is increasingly important as the mobility of skilled labour increases and permanent migration ceases to be the norm. Different visa types also enhance risk management by allowing the levels of verification to be segmented.

Proposal

It is proposed that the Bill establishes the status of permanent resident and that permanent residents would be granted permanent resident visas giving:

1. permission to stay in New Zealand indefinitely not subject to other immigration conditions (for example, regarding employment or study)
2. indefinite permission to travel to New Zealand on any number of occasions, and
3. an entitlement to be granted entry permission.

Status quo

Permanent residence is not a status or term found in the 1987 Act, despite being in wide usage. All residence permits, including those subject to conditions, are valid for an indefinite stay, but expire when the holder leaves New Zealand. An RRV is required for a new residence permit to be granted on return to New Zealand. RRVs of indefinite validity can be issued, under policies that require migrants to have shown commitment to New Zealand.

Discussion paper and submissions

The discussion paper noted that permanent visas could be established in legislation as a generic visa type. Several individual submissions commented on the status of permanent residents. One considered that once "permanent residency" had been obtained, no further visas or permits should be required for stay or re-entry. Another was concerned that the status of the offshore holders of indefinite validity RRVs should be protected.

Comment

A status that allows non-citizens to live permanently in New Zealand is an essential tool for gaining national advantage from immigration. It offers the opportunity to settle and contribute in the long term. Permanence supports the development of national identity by providing a final step on the pathway to full New Zealand citizenship. A permanent status indicates a high level of mutual commitment between the migrant and New Zealand, encouraging good settlement outcomes. Liability for deportation would, however, remain a possibility for the first ten years of residence in the cases outlined in Chapter Five: Deportation.

This proposal will benefit migrants by reducing confusion regarding RRVS. Permanent residents will automatically have indefinite permission to re-enter New Zealand.

Proposals

It is proposed that the Bill establishes the status of resident and that residents would be granted resident visas that could give:

1. the option of imposing conditions which the resident must meet in order to become a permanent resident, and not be liable for deportation
2. if granted offshore, the option of refusing entry permission on the first journey to New Zealand if an impediment was identified that should have precluded residence approval (an independent tribunal appeal could be pursued in these cases)
3. where initial entry permission was granted, or where resident status was granted onshore, permission to stay in New Zealand indefinitely, and
4. where initial entry permission was granted, or where resident status was granted onshore, permission to travel to New Zealand on multiple journeys for a restricted period.

It is proposed that the Bill would give permission to work or study without restriction, but this could be varied by any specific conditions that are established in Immigration Instructions for particular policy categories. It is proposed that residents could have their status changed to permanent resident if they demonstrate they have met conditions.

Status quo

The provisions of the 1987 Act allow the grant of residence, while allowing indefinite stay, to be subject to:

1. the seldom-used power to refuse entry on first arrival in New Zealand if an impediment is discovered that should have precluded approval, with an appeal to the Residence Review Board available, and
2. meeting any conditions imposed for up to five years by policy, for example, investor category migrants' funds must remain in New Zealand in specified types of investment and for set periods. Revocation of residence and removal can follow a failure to meet conditions.

Residents are required by policy to demonstrate commitment to New Zealand during the first two years of residence before an RRV with indefinite validity may be granted. Those who do not meet any of the various aspects of the RRV policy may be issued with RRVs of reduced validity or, if offshore, may be refused an RRV and, thereby, lose residence.

Discussion paper and submissions

The proposal to distinguish between permanent resident status and resident status largely mirrors the functions of the current system and was developed in light of submissions that RRVs should not be required once permanent residence is granted.

Comment

These proposals group the current provisions applying conditionality to the early phase of settlement into a distinct visa type. When used appropriately, this is a useful tool to ensure that the aims of selection policy are achieved. As an option for transition to permanent resident status, resident status gives more certainty to the non-citizen than the option of granting a temporary entrant visa, which has an expiry date.

The conditional phase that resident status provides need not be used for all policy categories. The transition to permanent resident status need not be any more of an administrative burden than a current application for an indefinite RRV.

Proposals

It is proposed that the main temporary visa types initially established by Immigration Instructions would be temporary worker visa, temporary student visa, and temporary visitor visa, reflecting the temporary permit types in the 1987 Act. It is also proposed to establish in Immigration Instructions visa types to reflect existing time-limited visa or permit exemptions, as discussed above in Visa waivers and current exemptions.

Status quo

The 1987 Act establishes three types of temporary permit - work, student, and visitor. Each type has standard conditions set in the 1987 Act, with variations made by Government immigration policy for policy categories, or by special direction for individuals.

Discussion paper and submissions

The discussion paper proposed that a generic temporary visa type could be established, but noted another approach of giving visas the same names as policy categories. While there was little comment on the detail of these proposals, there was support for flexibility to create new temporary visas.

Comment

This proposal would allow the introduction of new visa types in the future, for example, a "temporary resident visa" allowing unrestricted work and study but for a limited period, or a visa specifically for protection claimants. It provides the flexibility to retain broad visa types for common situations, such as overseas students, but offers the ability to communicate status and conditions through the creation of category-specific visa types.

Proposals

It is proposed that the Bill establishes a limited visitor visa that, like the current limited purpose visas and permits, allows travel to and stay in New Zealand only to undertake an express purpose. Limited visitors would be:

1. prohibited from applying onshore for any other visa type
2. permitted to apply for a further limited visitor visa only to fulfil the initial express purpose, and
3. ineligible to lodge a humanitarian appeal against deportation.

It is proposed that provisions in the 1987 Act to manage the entry of non-citizens brought to New Zealand under the Mutual Assistance in Criminal Matters Act 1992 should come within the limited visitor visa regime.

Status quo

The 1999 amendments to the 1987 Act introduced limited purpose visas and permits. All the main features of this regime are carried over under the limited visitor visa proposal.

Discussion paper and submissions

The discussion paper made no specific proposals on limited purpose visas.

Comment

Limited visitor visas are an important risk management tool that allow the entry of non-citizens who would be refused a temporary visa or permit because of a risk that could be managed by the more restrictive conditions of a limited visitor visa.

The limited visitor visa would also be able to be used to facilitate the stay in New Zealand of witnesses who, while otherwise ineligible to be in New Zealand, are required for a trial. The principal benefit of limited visitor visas is the unavailability of any appeal right if they overstay.

Proposals

It is proposed that there should be a transit passenger visa that gives the transit passenger permission to remain in the immigration control area while transiting New Zealand. It is proposed that regulations should specify which classes of passenger, if any, must obtain transit visas, and the length that transit visas could be issued for. It is proposed that transit passenger visas may be revoked on arrival.

It is proposed that transit visa regulations should be able to be made without an expiry date, in contrast with the three year limit under the 1987 Act. To further enhance flexibility, it is proposed that the Ministerial special direction power to impose or suspend a transit visa requirement for up to three months should be effective when used, rather than being effective upon gazetting (which would still be required).

It is proposed that where a non-citizen has remained in the immigration control area for the specified length of their transit visa while transiting New Zealand, the non-citizen shall be deemed to have applied for entry permission, which would allow an officer to:

1. grant entry permission and a visa to stay in New Zealand, or
2. extend the time the transit passenger may remain in the immigration control area, or
3. refuse entry permission.

Status quo

The essential features of the current transit visa regime are carried over in the proposals. The current regime is imposed by regulations that may be valid for up to three years, with a Ministerial power to allow the imposition or suspension of a transit visa requirement for up to three months pending regulations. The 1987 Act is not clear on the options that exist when a transit passenger reaches the 24 hour limit they can remain in transit.

Discussion paper and submissions

The discussion paper did not discuss or seek submissions on transit visas.

Comment

The current transit visa regime manages risk by allowing the close scrutiny of non-citizens of specified classes purporting to transit New Zealand from or to specified places. The scope of the regime has increased over the years as new risks arise, being extended most recently in 2005 in response to risk from Nepalese transit passengers.

The ability to set transit visa requirements in regulations would enhance their effectiveness now, and enable them to be responsive to any changes in international travel in the future. For example, while the 1987 Act enables transit through New Zealand for 24 hours, and this is generally adequate for the purposes of most airline passengers, in the future, there may be need to extend transit time, to be responsive to flight patterns through New Zealand.

The ability to revoke a transit visa on arrival would allow non-genuine transit passengers to be brought into the process for dealing with other non-citizens refused entry at the border and would ensure transit visas were not re-used.

Enabling transit visa regulations to be set without an expiry date would not prevent regulations being made for a specified period to ensure review. It would, however, obviate the need to roll over regulations when there is no need for change.

Proposal

It is proposed that the Bill allow the grant of an endorsement in a non-New Zealand passport on request that states the holder has the right to enter and be in New Zealand. This would facilitate the entry of New Zealand citizens travelling on non-New Zealand passports.

Status quo

Some New Zealand citizens have dual or multiple nationalities and seek to travel on the passports of another nationality. This is currently facilitated by issuing RRVs in New Zealand citizens' non-New Zealand passports.[3]

Discussion paper and submissions

The discussion paper did not include this issue.

Comment

It is consistent with a citizen's right to be in New Zealand that they do not need to hold a visa. Unlike the RRVs currently used, the proposed endorsement would not state that the holder was a New Zealand citizen. The endorsement should not usurp the role of citizenship certificates and passports as evidence of New Zealand citizenship. This approach would allow endorsements to be made in a way that did not disclose New Zealand citizenship, as some people may prefer that their dual citizenship not be disclosed to their other country.[4]

In order to backup any future change of policy to require New Zealand citizens to present New Zealand passports, there should be no ongoing right to apply for or be granted an endorsement. The endorsements should be able to be granted with limited validity. This would facilitate any new policy that encouraged the use of New Zealand passports or any new technology that made the endorsement redundant.

Proposals

It is proposed that when a temporary entrant in New Zealand lodges an application for another visa, the Bill should allow the grant of a further visa or visas in order to maintain the person's lawful status while the application is considered.

It is proposed that Immigration Instructions would guide whether to grant a visa in the interim, what type of visa should be granted, and what conditions should apply to the visa. Limited visitors would not be included in this provision.

Status quo

The 1987 Act makes no explicit provision for interim permits, but this could be done administratively.

Discussion paper and submissions

This proposal received strong support from submissions and in the public meetings. Ninety percent of 91 submitters indicated support. A number of submitters commented that the proposal would remove a source of stress for applicants by ensuring that applicants do not become unlawful due to delays in processing times.

Comment

Granting an interim visa would reduce the instances of otherwise law abiding non-citizens having a period of unlawful stay on their record. It could also enhance immigration data quality by reducing the number of false positives in the estimates of the numbers of non-citizens in New Zealand unlawfully.

Reasons not to grant an interim visa could include attempts by applicants to prolong their stay simply by lodging successive applications. Along with the provisions for interim visa, the Bill would contain provision (currently under section 35A of the 1987 Act) for a delegable ministerial power to grant visas to non-citizens unlawfully in New Zealand.

Proposals

It is proposed that, as a default, entry permission decisions should be made while the passenger is in an immigration control area. In order to facilitate any future offshore pre-clearance developments, it is proposed that there be a delegable Ministerial power to vary the default requirement that entry permissions must be made in an immigration control area.

It is proposed that immigration control areas would be established by the chief executive to provide for the control of people subject to the provisions of the Bill at the border. Officers would have a statutory right of access to immigration control areas, although this would be managed in practice through inter-agency agreements, notably with the Aviation Security Service at airports.

It is proposed that the decision to grant or refuse entry permission would be made by an officer undertaking an immigration function. Most positive decisions would continue be made by customs officers delegated to perform immigration decision-making functions, with refusals being made by immigration officers after referral from Customs.

Provision would also be made for decisions by an approved automated system, to anticipate developments like self-service airport kiosks for low-risk passengers. It is proposed that entry permission decisions could also be deemed to have been made if certain specified conditions are met by low-risk passengers.

Status quo

The granting of a permit at the border is the action that currently gives entry permission. The 1987 Act uses Customs-designated areas for immigration border functions. There are unused provisions in the 1987 Act allowing permits to be granted offshore, enacted in 1993 as part of a shelved trans-Tasman common border project.

Discussion paper and submissions

The discussion paper did not include a discussion of these issues.

Comment

Moving to a single term "visa" requires a process to replace the decision to grant a permit at the border. Providing a power that allows these decisions to be made at other than an immigration control area provides flexibility, for example, to allow decisions to be made offshore or onshore outside an immigration control area.

While the 1987 Act's use of Customs-designated areas for immigration border processing is currently adequate, providing specifically for the creation of immigration control areas would enhance flexibility. Any future proposal to vary the immigration control areas from the boundaries of the Customs areas would be subject to consultation across government. There is no intention to unnecessarily duplicate operational functions.

Proposals

It is proposed that the fundamental immigration border requirements established in the Bill should be:

1. the obligation to apply for entry permission forthwith upon arrival, except for transit passengers
2. that entry permission decisions are final once a non-citizen has left the immigration control area, but amenable to change prior to that point
3. non-citizens must remain in the immigration control area until permitted to leave. (The granting of entry permission would be considered permission to leave unless there was an instruction to remain)
4. non-citizens must comply with reasonable instructions while in the immigration control area, and
5. failure to remain or comply with instructions are offences.

It is proposed that non-citizens who evade some or all border requirements:

1. would be deemed to have had any visa held cancelled by the act of entering improperly
2. would be liable for deportation without appeal to the independent tribunal on either the facts or humanitarian grounds (judicial review would provide a backstop protection against mistaken identity), and
3. would be able to make protection claims.

It is proposed that passengers departing New Zealand must do so through an immigration control area, or through any other area permitted by the Minister (and that this would be a delegable power).

Status quo

The effect of the above proposals is the same as the status quo.

Discussion paper and submissions

The discussion paper did not seek comment on these proposals.

Comment

Some elements of immigration border management should remain in the statute as they are fundamental to determining immigration status and appeal rights. Specifying a point at which a non-citizen has been granted entry permission allows a distinction between those who have entered lawfully and unlawfully. It determines whether a non-citizen is subject to the immigration border regime or the rules regulating the stay of non-citizens lawfully in New Zealand.

The immigration border regime allows non-citizens refused entry to be sent out of New Zealand at the earliest opportunity (but not until any protection claim is finalised). Non-citizens lawfully in New Zealand, on the other hand, are generally allowed to change immigration status and have appeal rights.

Proposal

It is proposed that the Bill should allow regulations to prescribe certain immigration border requirements, including but not limited to:

1. the manner in which entry permission must be requested
2. the obligations for arrivals outside an approved port (for example, by air charter at a minor airport)
3. what information or documents must be supplied and how (for example, electronic passenger manifests or "manual" arrival cards)
4. when a traveller is deemed to have requested entry permission
5. departure documentation required of passengers and carriers, and
6. the border requirements that New Zealand citizens must meet in order to allow their evidence of citizenship to be checked.

Status quo

The 1987 Act outlines the passenger documentation and reporting requirements that apply at boarding and on arrival, including the obligations on carriers to check specified requirements, submit passenger details to the approved system of pre-boarding checks, and comply with any boarding directives.

Discussion paper and submissions

The discussion paper did not seek comment on the legislative placement of immigration border requirements.

Comment

This proposal provides greater flexibility than the current statutory location of many administrative and process requirements.

Proposals

It is proposed that New Zealand citizens, permanent residents and residents with visas valid for re-entry could not be refused entry. It is proposed to retain the power to refuse entry permission to residents coming to New Zealand for the first time, temporary entrants, limited visitors, and transit passengers.

It is proposed that if entry permission is refused:

1. any visa held is cancelled automatically
2. the non-citizen would be in New Zealand unlawfully but would not have access to appeal, and
3. the non-citizen concerned can be required to leave New Zealand on the first available craft.

Status quo

The 1987 Act allows entry permission (that is, a permit) to be refused other than in the case of RRV holders. New Zealand citizens cannot be refused entry.

Comment

The provisions that apply to the refusal of entry permission must be clear because of the need to maintain the immigration aspect of border security and the need for clarity for the non-citizens concerned. As outlined in Chapter Six: Review and appeal, it is proper to maintain the current provision that gives non-citizens refused entry permission no right of appeal. Those refused entry usually may be returned to their departure point under international civil aviation provisions.

A protection claimant refused entry permission would be permitted to stay until their protection claim was decided. As now, a protection claim at the border would not in itself lead to the granting of entry but action to require the claimant to leave would be suspended until the claim was decided. Maintaining protection claimants who fail to meet the requirements for entry permission in "refused entry" status can help facilitate their departure if their claim is unsuccessful.

While permanent residents and residents with visas valid for re-entry have an assurance of entry, temporary entrants can properly be given less certainty. Their proposed stay in New Zealand is temporary, their links to the country are likely to be less strong. They should not expect an unfettered right to enter New Zealand, even where they hold a visa.

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