Proposal

It is proposed to use the term "deportation" in the Immigration Bill (the Bill) to describe all processes for requiring a non-citizen to leave New Zealand, with the exception of those refused entry at the border (which are covered in Chapter Two: Visas).

Status quo

The 1987 Act uses different terms to describe the processes that require a person to leave New Zealand:

• a non-citizen in New Zealand unlawfully may be removed
• a non-citizen threatening national security may be deported
• residence permit holders and Australian citizens convicted of specified offences within the first 10 years of residence may be deported
• where a residence or temporary permit is revoked, the non-citizen may be removed.

Discussion paper and submissions

The discussion paper proposed that a single term "expulsion" be used to refer to all the processes outlined above. Of 63 submitters, 37 agreed it would help to create more understandable legislation and 17 disagreed. Reservations about this proposal were mostly on the basis that different terms reflected the differing reasons for expulsion and the varying seriousness of types of case (noted by, for example, New Zealand Association for Migration and Investment, and the Asian Network Inc.). At public meetings the term "expulsion" was not favoured. "Deportation" generally received support on the basis that it was more transparent and understandable.

Comment

Using a single term to describe all the processes for requiring a non-citizen to leave New Zealand would make the legislation more understandable. "Deportation" has the advantage of being associated in common usage specifically with immigration and was the most preferred term in public meetings.

Proposals

It is proposed that non-citizens should be liable for deportation when they come within the list of deportation criteria specified in the Bill (discussed below).

It is proposed that the Minister of Immigration (the Minister) have a delegable power to cancel deportation liability where it was not considered appropriate to put a non-citizen through the deportation process.

It is proposed that that there would be robust consideration of every individual case to assess whether deportation is appropriate, but that the Minister or delegated officer would not be compelled to consider or make a deportation cancellation.

Status quo

The 1987 Act brings non-citizens into the removal and deportation system through various mechanisms:

1. When a non-citizen becomes unlawful in New Zealand they have a legal obligation to leave, without notification in addition to that given earlier on visas, permits and publicity material. If the non-citizen does not appeal against the obligation within 42 days of becoming unlawful or if their appeal is declined, a removal order may be served and the person removed. A removal order can be cancelled by an appropriately designated officer.
2. An obligation to leave and a 42 day appeal period is also triggered where a non-citizen's temporary permit is revoked. An officer may rescind the revocation if the non-citizen shows, within 14 days of notification, good reason why it should be rescinded (the 14 days are not available where the non-citizen comes within the exclusion criteria of the 1987 Act).
3. Non-citizens threatening national security can be deported on the strength of a deportation order made by the Governor-General by Order in Council. The Minister may order the deportation of suspected terrorists.
4. The Minister may order the deportation of residents who are convicted of specified offences within 10 years of residence being granted.
5. An officer may order the revocation of a residence permit granted as the result of administrative error within an airport arrival hall or departmental office. If another permit is not granted, a non-citizen onshore would be here unlawfully and liable for removal.
6. The Minister may revoke residence permits obtained through fraud or deception or where the non-citizen has failed to meet the requirements imposed on their residence permit. The non-citizen then becomes liable for removal.

Discussion paper and submissions

The discussion paper noted that the obligation on unlawful non-citizens to leave New Zealand and their liability for removal were clear and unambiguous. It noted that the requirement for ministerial involvement in resident deportation and revocations might not be necessary in all cases where the grounds were clear in the statute and appeal mechanisms existed. It was suggested that multiple appeal avenues and the need for all decisions to be taken at the ministerial level created delay in the process. The idea of "automatic liability", based on the current mechanism that creates a legal obligation to leave for unlawful non-citizens, was presented as a way of reducing delay, while retaining appropriate appeal options for non-citizens. Under the proposal in the discussion paper, a non-citizen became liable for deportation where they came within criteria specified in the statute, ministerial involvement was not mandatory, and all processes for revocation, deportation and removal were consolidated into one deportation framework.

Approximately a third of 47 organisations and 55 percent of individual submitters indicated support for extending automatic liability for expulsion to all grounds for expulsion. Approximately half of the organisations and 30 percent of individuals were opposed. Concerns included those of the Auckland District Law Society, which considered that the proposal reduced the level of legal protection available to some under the 1987 Act. The Society also expressed concerns that deportation liability on the basis of a departmental determination would not be accompanied by communication of the reasons, which would breach natural justice. Some, including the Hutt Valley Community Law Centre, opposed the way deportation liability placed the onus of rebutting the presumption of deportation on the non-citizen. The Centre considered that the safeguards to ensure that departmental actions were correct should be strengthened.

Approximately 45 percent of 95 submitters agreed that a reduced role for the Minister would be appropriate, and approximately 40 percent disagreed. Among those opposed, some (including the Auckland District Law Society and the Canterbury Refugee Council) considered that the Minister should still be able to intervene and that ministerial oversight is necessary, along with robust review and appeal rights. Another submission considered that migrant communities have greater confidence in the Minister's decisions than in the Department's, and that making ministerial intervention discretionary would lead to only high profile cases being considered by the Minister.

Comment

The discussion paper proposal has been developed in light of the submissions. The deportation liability criteria would all be outcomes of other processes, for example, a court process that led to a conviction or a departmental investigation that sought comment from the non-citizen concerned. The deportation criteria outlined in the Bill itself would make a non-citizen prima facie liable for deportation.

The Department would clearly establish the facts to ensure that the non-citizen was indeed liable in every case. While deportation liability will be a clear standard, no set of rules can anticipate every possible set of individual circumstances. The Department could decide to cancel deportation liability or to refer a possible cancellation for the Minister's consideration.

The Minister could require that specified types of cases should be brought to his or her attention by the Department. For example, a Minister could ask to see all cases of residents liable for deportation once the Department had come its own conclusion about whether deportation should proceed or not, but before action was taken. Such a process would give an opportunity for ministerial intervention, but on the Minister's terms and without the Minister having to become a de facto appeal authority. This would reinforce the goal of providing a single and comprehensive appeal to the Immigration and Protection Tribunal (the tribunal).

Once it was established that a person was liable, and if there was no decision to intervene, a deportation liability notice would be served on the non-citizen (except for those liable because they had remained after the expiry of their visa). The process for serving notices is outlined below under How deportation liability is communicated.

Proposals

It is proposed that non-citizens can maintain lawful status while in the deportation process, except for those who are liable because their visas have expired.

It is proposed that non-citizens holding a valid temporary entrant visa when deportation liability is triggered would be able to apply for further visas of the same type in order to maintain their lawful status during any appeal (as with any application, there would be no guarantee a visa would be granted).

It is proposed that the processing of any citizenship application from a non-citizen in the deportation process, or visa application that is dependent on the immigration status of that non-citizen, could be suspended, pending the outcome of the deportation appeal. This would be implemented through an amendment to the Citizenship Act 1977.

Status quo

Residents currently subject to deportation or revocation proceedings retain their status until these matters are finalised. Non-citizens' temporary permits are revoked. Currently this group remains in New Zealand unlawfully while their removal appeal is considered.

Discussion paper and submissions

The discussion paper proposed that immigration status expire on departure once all deportation appeals were exhausted. While there was no specific response in written submissions, attendees at public meetings were generally strongly in favour of the idea.

Comment

This proposal would allow a person to continue to work or study during any deportation appeal. The serious consequences of deportation for the non-citizen make it desirable for them to retain their status, where possible, until all options are exhausted and deportation is confirmed. This proposal carries the risk that it could encourage some non-citizens to enter the appeal system in order to prolong their stay and, for example, continue working. If their visas were left to expire during the appeal process, there would be less incentive to remain and pursue appeals that might have little chance of success. This risk would be balanced by speed in the appeal system and by the proposal in Chapter Ten: Detention that those liable for deportation could be monitored or even detained.

Proposal

It is proposed that deportation liability would be triggered where the Minister or a delegated officer determines that a visa was granted in error and should be revoked by deportation, with the non-citizen given 14 days from the service of a deportation liability notice to give good reasons why deportation should not proceed.

This provision would apply where the non-citizen had been granted the wrong type of visa and sought to retain that status. Deportation need not be pursued where the non-citizen agreed to an adjustment of their immigration status or where it was considered inappropriate to pursue deportation. Factors such as the non-citizen's degree of knowledge of the error and their degree of connection with New Zealand could be considered. If the visa granted in error was to stand, deportation liability would be cancelled. If the deportation process continued, a tribunal appeal would be available. As discussed in Chapter Six: Review and appeal, non-citizens holding resident visas or permanent resident visas, this appeal would be on the facts and on humanitarian grounds. For others, only the humanitarian appeal would be available.

Status quo

The 1987 Act provides for the revocation of temporary permits granted in error, with 14 days to show good reason why the revocation should not take effect. If it does take effect, a removal appeal on humanitarian grounds is available. The revocation of residence permits granted in error requires a ministerial decision. Appeal is to the Deportation Review Tribunal on humanitarian grounds and to the High Court on the facts.

Discussion paper and submissions

The discussion paper noted that gaining a permit as result of administrative error could be grounds for deportation. No specific submissions were made on this point.

Comment

The proposal translates the status quo into the proposed deportation system. The notable change is that the Minister need not make the initial decision to act in cases involving residents, which could be made by delegated officers. The Minister could, of course, choose to retain this responsibility.

Proposals

It is proposed that deportation liability would be triggered where a non-citizen becomes unlawful in New Zealand on the expiry of a visa or by never having held a visa. Deportation liability would reinforce the statutory obligation for non-citizens here unlawfully to leave. This group would not include those who are unlawfully in New Zealand through evading immigration border processes, who would be treated like those refused entry at the border and could not appeal (discussed in Chapter Two: Visas). The Minister (and Department) would retain a discretionary power to regularise the status of people here unlawfully by granting a visa, thereby cancelling deportation liability.

It is proposed that deportation liability would be triggered where the Minister or delegated officer determines that a visa was granted to a false identity, in which case the non-citizen would be deemed to be unlawfully in New Zealand from the date the visa was granted to the false identity.

If, after a rigorous investigation, it was determined that the identity fraud was deliberate and significant, the non-citizen would be given a 14 day period from the service of a deportation liability notice to demonstrate that the false identity was, in fact, genuine (see Chapter Six: Review and appeal). If the use of a false identity is confirmed, the non-citizen would be deemed to have been unlawfully in New Zealand from the date a visa was first granted to the false identity.

For temporary entrants, the 42 day period to lodge a humanitarian appeal with the tribunal would have passed in many cases. The purported holders of resident or permanent resident visas would be able to appeal to the tribunal on the facts. The discretionary power to regularise the status of people here unlawfully would allow a visa to be granted in the non-citizen's true identity, for example, where a genuine refugee had used a false identity to flee persecution and enter New Zealand.

Status quo

The 1987 Act makes a non-citizen unlawfully in New Zealand liable to be removed, without individual notification of this liability, if the non-citizen does not appeal against the obligation to leave within 42 days of becoming unlawful or once their appeal is declined. The Minister has the power to grant a permit to restore lawful status (section 35A). The Department uses this delegated power frequently to restore status in cases where removal is not desirable.

The use of false identities is not dealt with separately under the 1987 Act. It is treated like other types of fraud, with the non-citizen's permit remaining in effect until it is revoked.

Discussion paper and submissions

The discussion paper noted that staying in New Zealand after the expiry of a permit would continue to be grounds for deportation. The discussion paper asked if persons who obtained their status through fraud should be treated in the same way as persons unlawfully in New Zealand. Approximately half of the 43 organisations commenting and 75 percent of 51 individuals agreed.

Comment

A key power in the management of immigration is the ability to require non-citizens to leave New Zealand where they have entered on a temporary basis and lost their permission to stay. While there is considerable debate about what appeals and regularisation options should be available, the core concepts that non-citizens here unlawfully are obliged to leave without further notification of this obligation and that they may be deported are not highly contentious.

Ascertaining identity is the foundation of assessing individual immigration cases. Without confidence on identity all other verification is undermined. The proposal to treat a visa granted to a false identity as never having been valid rests on the argument that the non-citizen should never have obtained the visa or anything beneficial arising from it. These benefits would include the ability to make a humanitarian appeal to the tribunal on the same terms that are available to a non-citizen who has stayed in New Zealand after the expiry of their visa.

Proposals

It is proposed that deportation liability would be triggered where the Minister or delegated officer considers that there are sufficient reasons to revoke their temporary entrant or limited visitor visa by deportation. After a departmental (or ministerial) assessment that concluded that a non-citizen's temporary stay in New Zealand should cease, temporary entrants would be advised of the reasons through the service of a deportation liability notice and given 14 days to give reasons why they should be able to remain. If the reasons were accepted, deportation liability would be cancelled. If not, a humanitarian tribunal appeal would be available. Limited visitors would not receive the 14 day period or a tribunal appeal.

It is proposed that deportation liability would be triggered where the Minister or delegated officer determines that a temporary entrant visa or limited visitor visa should be revoked by deportation because the non-citizen meets the exclusion criteria (as outlined in Chapter One: Core provisions. This allows the ongoing application of the exclusion criteria where, for example, their applicability had not been discovered on initial entry or was the result of subsequent offending. The 14 day period that applies to the criterion above would not be available to this class.

Status quo

These proposals mirror the 1987 Act's grounds for temporary permit revocation. The provisions comparable with the first proposal do not limit or specify the grounds on which revocation may be based. A 14 day period is allowed for non-citizens to submit good reasons why revocation should not proceed, and an appeal against removal is available if it does. The holders of limited purpose permits do not currently have a right to make such a submission or to appeal.

The provisions comparable with the second proposal do not include a 14 day period. A humanitarian removal appeal is available for temporary permit holders but not limited purpose permit holders.

Discussion paper and submissions

The discussion paper proposed that the current flexibility around temporary permit revocation power should be retained. There was limited comment in submissions.

Comment

Maintaining a provision akin to the current open ended temporary permit revocation process is an important tool for the management of temporary entrants and limited visitors. It is used in relation to people who have only been granted highly conditional permission to remain in New Zealand. While it is a broad power, its exercise is not arbitrary. Indeed, adding "sufficient reasons" in the Bill would reflect the practice that has been built up under the current provision. It is used, for example, where a person has offended at a level that does not meet the threshold of the statutory exclusion criteria, but which need not be tolerated from a non-citizen in New Zealand temporarily. It also allows revocation where a person has, for example, worked or studied in breach of their conditions.

Allowing the deportation of temporary entrants and limited visitors who are found to come within the exclusion criteria reinforces the effect of these criteria. This situation may arise where, for example, the applicability of the exclusion criteria was not discovered on initial entry or where it results from subsequent offending.

Proposal

It is proposed that deportation liability would be triggered where an Order in Council is made by the Governor-General ordering the deportation of a non-citizen who is determined to be a threat or a risk to national or international security. This criterion differs from those above in that there is no deportation liability phase, rather a direct order of deportation. There would be no tribunal appeal, but judicial review in relation to the statutory powers involved may be sought. The Bill would include a police power to arrest a non-citizen, prior to the making of the Order in Council, where there is good reason to believe that the deportation criterion would apply.

Status quo

The 1987 Act provides for deportation, by Order in Council, for non-citizens who are a threat to national security. There is no appeal, but judicial review is available. The Act also provides for the deportation, by ministerial order, of suspected terrorists threatening New Zealand, with appeal to the High Court. There is a police power in the 1987 Act to arrest a non-citizen prior to the making of the Order in Council where there is good reason to believe that the national security deportation criterion would apply.

Discussion paper and submissions

A criterion of being a threat to national security, including a terrorist threat, was proposed in the discussion paper. As described, this was considered by one submitter to be too vague and open to abuse, unless clearly defined. The proposed national security deportation criterion was of concern to the Auckland District Law Society because the criteria and decision-making processes were unclear.

Comment

This proposal would amalgamate the two existing provisions and seeks to ensure that the new provision is not so narrowly worded as to be ineffective. Currently, it could be possible to interpret "threat" as not including where non-citizens are themselves not an immediate threat, but are an integral part of a wider or perhaps international threat. Adding the concept of risk to the concept of "threat" would address this problem.

Similarly, the focus on national security does not reflect the international collaborative nature of responses to terrorism and security threats. New Zealand's strong interests in assisting other states to manage security and terrorist threats would be better supported by including both national and international security in the deportation criterion.

The proposed power is strong, but the proposal is not designed to increase the frequency of its use in comparison to the comparable powers in the 1987 Act. These powers have been used infrequently, but as recently as early 2006. Global levels of security concern support the maintenance of a strong national security deportation power. The nature of the threats to be managed by this provision makes it appropriate for the decision to be taken at the highest formal level within the executive. The proposal allows the executive to fulfil its fundamental duty to protect the security of New Zealand, and reflects the general acknowledgment that it is for the executive to determine what is a threat to national security. The seriousness of the potential threat justifies the retention of an equivalent of the police power in the 1987 Act to arrest a non-citizen prior to the making of the Order in Council where there is good reason to believe that the national security deportation criterion would apply.

Proposal

It is proposed that deportation liability would be triggered where, within five years of residence being granted, new information relating to character, applicable at the time residence was granted, indicates that a resident would not have been granted residence if that information been available the time of their application.

In this situation, the Minister or delegated officer would need to be satisfied that residence would not have been granted had the information been available at the time that residence was granted. These types of cases are unlikely to be common, and the Minister may choose not to delegate consideration of them. An appeal to the tribunal would be available on the facts and on humanitarian grounds.

Status quo

There is no comparable provision in the 1987 Act.

Discussion paper and submissions

This proposal has arisen from interagency consultation subsequent to the public consultation process.

Comment

The 1987 Act and the proposals below, allow a resident to be deported where there is clear evidence of immigration fraud, or where the person commits a serious criminal offence after the grant of residence. From time to time investigations relating to criminal activities the non-citizen was involved in prior to residence being granted commence after the grant of residence. Unless the non-citizen was under investigation at the time of their application, and they knew this, there would have been no fraud committed. This proposal would allow deportation in such cases, where there are currently no immigration consequences.

The five year limitation is in line with citizenship requirements and would ensure that citizens would not be captured by this provision. The proposal is also consistent with existing extradition law. It would be useful in the situation where a non-citizen faces charges in their home country, but where extradition is not being sought by the home country. If a non-citizen was deported to face charges in their home country and was acquitted, policy could allow them to return to New Zealand.

Proposals

It is proposed that deportation liability would be triggered where a resident or permanent resident receives a final conviction for a specified offence within 10 years of residence being granted. The proposed levels of offending and periods, starting at the grant of residence, from which they apply are outlined below under Offences Warranting Deportation. In these cases, the Minister or delegated officer could intervene to cancel deportation liability. If there was no cancellation, a tribunal appeal would be available on humanitarian grounds, but not on the facts, which were reviewable in the court process that led to the conviction.

It is proposed that deportation liability would be triggered where there is a conviction for obtaining a resident or permanent resident visa through fraud, forgery, false or misleading representation or concealment of relevant information. In these cases, the fraud has been established by a court process that has determined the facts and which included an opportunity to appeal. The Minister or a delegated officer could still choose to intervene and cancel deportation liability. Where there was no cancellation, a deportation liability notice would be served and a humanitarian appeal to the tribunal would be available.

It is proposed that deportation liability would be triggered where there is a departmental determination that a resident or permanent visa was obtained through fraud, forgery, false or misleading representation or concealment of relevant information. In this situation, the Minister or delegated officer would need to be satisfied, on the balance of probabilities, that there had been fraud before a deportation liability notice was served. An appeal to the tribunal would be available on the facts and on humanitarian grounds. The tribunal would also consider the factual situation on the balance of probabilities.

It is proposed that deportation liability would be triggered where there is a departmental determination that a resident or permanent resident has materially breached or failed to meet their conditions. Residents would be advised on approval of any conditions that apply to their visa (for example, investor migrants must retain their investments in New Zealand), and of their obligation to demonstrate that they have met the conditions. Where it is determined that conditions have not been met, the option remains of cancelling deportation liability if warranted by the individual circumstances of the case. Where there was no cancellation, a deportation liability notice would be served, triggering a right to a tribunal appeal on the facts (that is, whether there was a failure to meet, or a breach of, conditions) and on humanitarian grounds.

It is proposed that deportation liability would be triggered where a person is deprived of or successfully renounces New Zealand citizenship and the basis for the deprivation arose from an immigration matter that triggered deportation liability under paragraphs 468 and 469 above. Under proposals outlined in Chapter Two: Visas, New Zealand citizens would not hold visas. It is proposed that where deprivation or renunciation takes effect such persons would be deemed to hold a resident visa. If the factual basis for the loss of citizenship arose from circumstances described in paragraphs 468 and 469 above, then those facts would trigger deportation liability. At that point the Minister or delegated officer could intervene to cancel liability. If there was no cancellation, a deportation liability notice would be served. A tribunal appeal would be available on humanitarian grounds, but not on the facts, which were reviewable during the citizenship deprivation or renunciation process.

Status quo

Where residents are convicted of offences as specified in the 1987 Act, the Minister has the power to order deportation or not. The 1987 Act provides for the Minister to order the revocation of residence that was gained on the basis of fraud, forgery, false or misleading representation or concealment of relevant information. The person may appeal to the High Court which generally has applied a balance of probabilities test. The Minister is empowered under the 1987 Act to decide whether or not to order the revocation of residence where conditions have not been met.

The situation of people who lose citizenship varies according to whether they have retained residence status since they became New Zealand citizens. Residence is retained where a citizen uses their non-New Zealand passport with a New Zealand returning resident's visa to travel instead of a New Zealand passport. Where residence is retained, a full revocation process must be completed, including a re-examination of the facts that lead to the loss of citizenship if they are the basis of revocation. Where the former citizen does not have residence, they are likely to be in New Zealand unlawfully and subject to removal.

Discussion paper and submissions

The discussion paper presented deportation criteria as:

• a conviction for obtaining a visa or permit through fraud or misrepresentation
• a finding by the Department of Labour (the Department) that a person obtained their visa or permit through fraud or misrepresentation, or that their permit conditions have not been met
• citizenship deprivation due to residence fraud, and
• a conviction for a serious criminal offence committed within up to ten years of residence being granted, depending on the seriousness of the offence.

There were no submissions that addressed the substance of these specific criteria. Most submissions on deportation focused on process, who makes decisions, and appeal rights.

Comment

The proposal to retain the ability to deport residents or permanent residents for up to 10 years from the grant of that status maintains the idea that residents and permanent residents, while moving toward full settlement, are still subject to immigration consequences for clearly defined offending.

Allowing ministerial or departmental determinations that a resident visa or permanent resident visa was gained by fraud retains the flexibility to take action against immigration fraud without needing to secure a conviction. Retaining court findings of fraud as a separate criterion allows prosecutions to be pursued where criminal sanction and deterrent effect is sought in addition to the sanction of deportation.

The ability to deport where residents fail to meet their visa conditions is necessary to make the conditions regime effective.

The Bill offers an opportunity to clarify the processes applying to former citizens. The proposal aligns with the goal of reducing duplication because it allows the loss of citizenship to be determined by its own processes, with the facts determining whether there is any subsequent immigration action.

Proposal

It is proposed in paragraph 467 above that residents or permanent residents would be liable for deportation where they receive a final conviction for a specified offence. It is proposed that residents be liable for deportation:

1. when convicted of an offence committed within 10 years of the grant of residence where an actual sentence of 5 years or more, or indeterminate period capable of running for 5 years or more is imposed
2. when convicted of an offence committed within 5 years of the grant of residence which is punishable by imprisonment for 24 months or more, or
3. when convicted of an offence committed within 2 years of the grant of residence, or while in New Zealand prior to that, which is punishable by imprisonment for 3 months or more.

Status quo

Discussion paper and submissions

The discussion paper proposed that a serious criminal offence committed within up to 10 years of the grant of residence would be grounds for deportation, depending on the seriousness of the offence. There was no proposal to change the current thresholds. Little direct comment was received on this proposal. Some submissions, mostly from private individuals, sought a hard line, with criminal offending by a non-citizen being sufficient for immediate deportation. The New Zealand Law Society considered that a high degree of transparency in criteria was required, and that criteria should be outlined in legislation.

Comment

A definition of the offences considered serious enough to warrant deportation liability for residents is essential for clarity and fairness. The existence of clear criteria may also act as a deterrent. Retaining the current two, five and ten year steps allows deportation for lesser offences committed closer to the time residence was granted, with only more serious offences warranting the deportation of long-term residents.

It is proposed to change the level of offending that would trigger deportation liability during the first five years of residence. The current standard, outlined in Table One above is an actual sentence of 12 months imprisonment or more or two convictions each punishable by 12 months imprisonment or more. The proposed new level would be one offence punishable by 24 months imprisonment or more. Using a possible rather than actual sentence gives the specialist tribunal the role of assessing humanitarian appeals at this stage, rather than having these matters intrude into sentencing decisions in the courts, when counsel can and do argue for a sentence designed to fall short of the deportation liability threshold.

At the most serious level (five to ten year residents), maintaining provisions based on actual sentences handed down allows the complex mix of factors that go into the courts' sentencing decisions to influence which offenders become liable for deportation. Allowing this additional consideration to be brought to bear reflects the greater interests of long-term residents and the broad range of actual sentences that are handed down for serious offences. The proposal maintains the current alignment between the sentences that warrant the deportation of a resident of up to ten years standing with the sentences that disqualify a person from being granted New Zealand citizenship.

In addition to offences defined by sentence, a conviction under the 1987 Act for knowingly employing or exploiting unlawful workers also currently warrants deportation action within the 10 year period. These provisions, enacted in 2002, reflect a view that offences committed by migrants against migrants were particularly serious. This provision does not, however, align with a sentence-based approach and it is proposed to dispense with it. With a possible penalty of up to seven years imprisonment, convictions for these offences would bring a non-citizen within the deportation criteria for up to five years, and may do so for up to ten years.

Proposals and status quo

It is proposed that, with two exceptions, a deportation liability notice be served on non-citizens liable for deportation that:

1. advises of deportation liability,
2. advises of any appeal rights, and
3. starts the time allowed to lodge any appeal and advises of the time limit.

It is proposed that former temporary entrants or limited visitors here unlawfully who are obliged to leave New Zealand need not be given a notification of their liability for deportation. The current duty of the chief executive to communicate in advance the obligation to leave before visa expiry would be carried over into the Bill.[11] Non-citizens are expected to abide by this obligation without the need of the reminder that would be provided by a deportation liability notice.

It is also proposed that a deportation liability notice would not be served in cases of deportation on the grounds of threat or risk to national or international security. As no appeal is provided for in these cases and early arrest is highly likely, a liability notice would be superfluous.

It is proposed that service would be by personal service or registered post, with registered post required where resident or permanent resident status is lost. In all cases, a deportation liability notice could be served at the time when a non-citizen is detained if not sooner.

It is proposed that deportation liability endures for up to ten years regardless of whether a deportation liability notice has been served. Deportation liability should not be undermined by any administrative delay in serving a notice. This would replace the status quo that deportation orders may only be made within six months of the deportee's release or, if not imprisoned, conviction.

Discussion paper and submissions

The discussion paper did not specifically propose a deportation liability notice. A number of submitters commented that notice of possible deportation should be provided. Submitters made reference to the need for non-citizens to know about, and be able to challenge, deportation based on administrative findings, for example, a finding that a visa was obtained by fraud.

Comment

These proposals provide most non-citizens with notification that they are liable for deportation, ensuring fairness and a knowledge of appeal options. The main exception is non-citizens in New Zealand unlawfully, as is the status quo. It is considered important to maintain the effect of the 1999 amendments to the 1987 Act in this regard. To introduce a deportation liability notice in this circumstance would reintroduce the inefficient two-step process that existed prior to 1999. This required an overstayer to be located once, to be served with notice, and then a second time to effect removal once any appeal was dealt with. The 1999 process reflects the idea that overstaying temporary entrants have entered on a temporary and conditional basis, and should not have an expectation of appeal rights at the level available to, for example, residents.

Beyond this exception (and national security deportations) it is an important general principle that non-citizens are informed of their liability. The service of notices on residents and permanent residents who are overseas frequently or for extended periods can be practically difficult. The proposal for there to be a 10 year time limit on either liability or service would overcome this in part, by allowing the Department to serve notices when the resident returns to New Zealand.

Proposals

It is proposed that there be a delegable Ministerial power to suspend deportation liability of residents or permanent residents:

1. for up to five years from when the liability began, subject to such conditions as the Minister sees fit, and
2. with liability to be reactivated where those conditions are not met.

There would be no right to apply for suspension and no right to receive reasons for any decision. It is proposed that non-citizens subject to deportation liability suspension may proceed with their appeal to the tribunal.

It is proposed that citizenship or another visa could not be granted during a suspension to the non-citizen concerned. This will require an amendment to the Citizenship Act 1977 to prohibit residents from being granted New Zealand citizenship while subject to deportation liability suspension, except where there are current provisions for the mandatory grant of citizenship.[12]

Status quo

There is no equivalent process in the 1987 Act. It is possible for the Minister, in deciding not to order deportation, to tell a resident offender that further offending may not receive similar leniency.

Discussion paper and submissions

This proposal was not included in the discussion paper and no specific submissions were received on it. It has been developed as an option that reflects the principles of fairness and transparency and the graduated nature of sanctions proposed, for example, the graduated ban periods proposed below as penalties after deportation.

Comment

In some cases the prospect of deportation could have a positive effect on a non-citizen's behaviour, and a second chance may be justifiable. A power to suspend deportation liability (as opposed to cancelling it outright) would allow the Minister to give a second chance, subject to good behaviour or other specified conditions. The absence of a formal right to apply for suspension would protect the Minister from becoming a de facto appeal authority. As with the cancellation process, the Minister could require administrative processes whereby specified types of cases would be brought to his or her attention. The extent of the Minister's involvement would also be influenced by the degree to which this power is delegated, if at all. The ability of non-citizens to continue with their tribunal appeal even where liability was suspended would give them an opportunity to seek to have their deportation liability quashed entirely, rather than wait out the suspension period.

Proposals

It is proposed that deportation shall not occur until any appeals available have been concluded.

It is proposed that a deportation order should be made and served on the non-citizen at the time of deportation to:

1. confirm that the non-citizen is a deportee and is being deported from New Zealand, specifying the section of the Act under which they became liable and confirming that any visa held was cancelled on departure
2. notify the period of any ban on returning to New Zealand, the effect of the ban, and the consequences of attempting to return to New Zealand during the ban, and
3. specify the costs to the Crown of deportation, if applicable and if known at the time of deportation, that must be repaid and that ban on returning is in force until this occurs.

Status quo

Removal orders and deportation orders are used in slightly different ways under the 1987 Act to give effect to removal and deportation. Deportation orders initiate the deportation liability and appeal right, and expire on departure. Removal orders signify the end of the removal process, in that they allow removal to occur. A removal order remains in force for five years from removal, thereby giving legal effect to the re-entry ban. The proposed deportation orders would have the same effect as current removal orders.

Discussion paper and submissions

The discussion paper proposed that a deportation order would activate deportation and that any permit held would be automatically revoked. This proposal did not prompt specific submissions.

Comment

Once any appeals available had been declined and liability for deportation thereby confirmed, sufficient powers are needed to deport non-citizens. As noted above, those liable for deportation are liable for detention, allowing detention to be imposed to facilitate actual deportation. Deportation would not, of course, occur until any appeals available had been concluded. A deportation order is required to establish clearly the terms of the deportation. The deportation order provides a clear statement of why the non-citizen is being removed and any sanctions or obligations that result.

Proposal

It is proposed that there should be a system of graduated bans preventing deportees from returning to New Zealand. Those overstayers who agree to leave voluntarily and pay their own way could leave without being served with a deportation order, and would not be subject to a statutory ban. It is proposed that the bans outlined in Table Two below apply to non-citizens served with deportation orders.

To reinforce the effect of the ban periods, it is proposed that an attempt to re-enter New Zealand during a ban period would re-start the ban period from the date of attempted re-entry. Re-entry would be defined as applying for entry permission at the border, or boarding or attempting to board a craft for New Zealand.

It is appropriate that the Minister (at any time) and the tribunal (when declining a deportation appeal) should be able to waive or reduce the ban period that would usually apply. The Minister's power should be delegable, but as now there should be no right to apply for its exercise or receive reasons for any decision. The Minister could also require that any appeal right be exhausted before considering a case.

Status quo

Currently, removed overstayers are banned for five years and deported former residents are banned permanently.

Discussion paper and submissions

The discussion paper included a proposal for two year, five year and permanent bans varied according to the seriousness of the reason for deportation. The paper also discussed the option of permanent bans for all non-citizens who were deported. This alternative was not considered desirable.

Differentiated ban periods received strong support. Of 67 submitters, approximately 85 percent agreed with the proposal. One submitter wanted a ban period for those who leave New Zealand voluntarily to deter people from overstaying. Fines for overstaying or a prohibition on further sponsorship were suggested as penalties. Some submitters questioned whether failure to meet visa conditions warranted a five-year ban in all cases. Provision for consideration of mitigating circumstances was sought. The New Zealand Law Society considered that there should be a presumption in law that a period of illegal stay will not act as a bar to re-entry beyond the period of time prescribed by law.

Comment

Bans would reinforce that the deportee has been determined to be undesirable and should not attempt to return to New Zealand, potentially giving them both preventative and punitive effects. They bring deportees within the exclusion criteria while a ban is in force (see Chapter One: Core provisions). The gradations give incentives for early compliance. They reinforce the differences in the seriousness of the various reasons for which non-citizens may be deported.

Deportation while serving a prison sentence

Provisions of the Parole Act 2002 allow the Minister to give effect to deportation of a non-citizen serving a term of imprisonment. This allows the Minister to determine when it is preferable that a non-citizen be deported rather than serve a full sentence. It is proposed to maintain this provision, with necessary amendments to align it with the proposed new deportation system. Current practice is for the Minister to consult the Minister of Justice before exercising this power.

Costs to the Crown of deportation

To have an effective enforcement system, the Crown should continue to be able to fund the costs of all deportations. This currently includes the authority to pay the costs of any partner or dependent child accompanying the deportee out of New Zealand, which should continue to be an option.

The Crown should also continue to be empowered to fund these costs, even where the partner or dependent child is not subject to a deportation order. This funding would not be a requirement, but a possibility. Current practice is to offer voluntary departure only where the non-citizen pays the cost and to use a removal order (with subsequent ban) where the Crown is covering the costs.

All these costs should continue to be recoverable as debts. It is proposed to roll over for the current process whereby the courts, on the Department's application, set the sum to be recovered.

Debt recovery may also be possible from sponsors who agreed to cover any costs arising from the entry of the person who is now a deportee. Deportees also have an incentive to repay deportation costs if they are likely to seek to return to New Zealand. It is proposed that any such costs must be repaid before any visa or entry permission may be granted.

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