Proposals

It is proposed that the Immigration Bill (the Bill) enables designated officers or determination officers to require address information to locate people who are liable, or who may be liable, for deportation from New Zealand. The process for requiring address information, which includes a written request, would mirror the 1987 Act.

It is proposed that the Bill enables designated officers and determination officers to require address information from any business or organisation that exists within a list of industry groups, or from any specified government agency.

It is proposed that the list of industry groups and government agencies that may be required to provide address information include:

1. education providers (in relation to enrolled students over the age of 17 years only)
2. other government agencies:
3. New Zealand Customs Service
4. Ministry of Social Development
5. Ministry of Justice
6. New Zealand Police (Police)
7. Land Transport New Zealand
8. Department of Building and Housing
9. Housing New Zealand
10. postal and courier companies
11. telecommunications providers
12. internet providers
13. subscription television providers
14. finance and banking providers
15. local and regional government
16. insurance providers
17. utility providers (e.g. electricity, gas, water)
18. employers (in relation only to an employee who is being located), and
19. real estate agencies.

Status quo

The 1987 Act allows immigration officers to require specified companies and government agencies to provide address information about individuals who are unlawfully present in New Zealand (overstayers). The Department must also locate persons necessary:

1. to complete an investigation process (including providing the person with potentially prejudicial information to allow them to correct and contest information or findings), and
2. for the Department to undertake compliance activity (such as serving and executing a deportation order).

Officers currently rely on the last known address to locate persons for these purposes. If the person is no longer at that address then the Department has limited means by which to acquire further information. The Privacy Act 1993 does provide for the sharing of information where such sharing is necessary to avoid prejudice to the maintenance of the law. However the application of this privacy principle in these circumstances is regularly disputed.

Discussion paper and submissions

Organisations that made submissions included immigration consultants, refugee and migrant groups, ethnic councils, human rights groups, community law centres, law societies, businesses, industry representatives, government agencies and one political party.

Seventy percent of 94 submitters favoured increasing the purposes for which information may be sought beyond locating overstayers. All submitters stressed the need to adhere to human rights obligations and privacy considerations, and to ensure adequate oversight.

Sixty-five percent of submitters favoured increasing the sources of address information by listing a greater range of industries. Approximately 20 percent of all submitters did not support the proposal. Many submitters agreed that health and education providers should not be among the organisations that may be required to provide information due to the risk that people may deprive themselves and their children of health and education services.

Comment

Without this power, immigration compliance officers can only rely on address information provided at the last point the person had dealings with the Department. This information is frequently out of date. Those who deliberately seek to enter and stay in New Zealand based on false or misleading information seldom give correct or current address information.

The current list of companies that can be required to provide address information is outdated and is not comprehensive (for example, it refers only to two telecommunications companies: Telecom and the now non-existent Clear Communications). Broadening the application of this existing power to a greater number of industries, without specifying particular companies, would significantly enhance the Department's ability to locate people and would future-proof this aspect of the legislation.

Proposals

It is proposed that powers of entry and search contained within the 1987 Act be carried over into the Bill as powers designated by the chief executive. This would remove reference from the legislation to particular officers or agencies being able to exercise these powers and instead allow these powers to be designated to the appropriate officers and aligns with proposals in Chapter Three: Decision-making.

As a safeguard in exercising potentially intrusive powers of entry and search, it is proposed that this power be activated by Order in Council, made once the chief executive has satisfied the Minister of Immigration (the Minister) that all necessary training, systems and procedures were in place.

It is proposed that the Bill establish a power for designated officers to enter and search buildings and premises to serve and/or execute a deportation notice or order.

It is proposed that designated officers may enter and search buildings, premises and craft in border areas to locate people who may be committing an immigration offence, unlawfully present in New Zealand, refused entry to New Zealand, or to detect or prevent an immigration offence.

Status quo

Both immigration and police officers may serve a removal or deportation order. Only police officers may enter a building or premises in order to do so. Police officers and customs officers (undertaking an immigration function) have powers of entry to border areas to locate and detain people unlawfully present, ineligible to enter New Zealand, refused entry to New Zealand, or who are or may be committing immigration offences.

Discussion paper and submissions

The public discussion paper asked if "immigration officers should have the same powers of entry and search as Customs and Police have in the immigration context". This proposal was supported by 40 percent of 95 submitters. Approximately a third of 55 organisations indicated support for the proposal and approximately 55 percent were opposed. Organisations opposed included the New Zealand Law Society, Wellington District Law Society, The Asian Network Ltd, and Waitakere Community Law Service.

Submitters considered that immigration officers should continue to work with the Police and Customs because these agencies have expertise in exercising powers of entry and search and mechanisms to ensure their accountability. A number of submitters expressed concern that immigration officers may not use such powers fairly and that insufficient attention would be given to individual human rights. Some submitters considered that the proposal is unnecessary and any issues can be dealt with administratively.

Submissions indicated some misunderstanding about the difference in roles of compliance officers compared with visa and permit officers, and the extent of Customs' role in immigration compliance activity.[16] There was also misperception that compliance officers currently only undertake entry and inspection with a police presence.[17]

Comment

Compliance officers must be able to obtain sufficient information about compliance with immigration obligations. This assists with making accurate and timely interventions to correct non-compliant behaviour, and includes the ability to take appropriate compliance action. Making these powers able to be designated by the chief executive would enable the chief executive to designate officers of other government departments as well as immigration officers.

The requirement that these powers only come into force through Order in Council provides a safeguard for the exercise of these powers by immigration officers. It allows the Minister to ensure that the Department has developed operational instructions and administrative oversight procedures to govern the exercise of these powers. The Minister would also need to be satisfied that the Department has developed and implemented an appropriate training programme for officers who are to be designated these powers. Operational instructions would require that exercise of this power by designated immigration officers be limited to circumstances where police are not available in the time required to safely and successfully achieve the desired immigration outcome.

Proposals

It is proposed that powers of entry and inspection contained within the 1987 Act be carried over into the Bill as powers designated by the chief executive. This would remove reference from the legislation to particular officers or agencies being able to exercise these powers and instead allow these powers to be designated to the appropriate officers and aligns with proposals in Chapter Three: Decision-making.

It is proposed that the Bill establish a power for designated immigration officers to enter buildings and premises to inspect and copy information held by an:

1. accommodation provider to assist in locating people unlawfully present in New Zealand
2. employer about a non-citizen who is suspected of being unlawfully present in New Zealand or who may not be entitled to undertake that employment (including time and wage records as well as any documents held that record remuneration or employment conditions of an employee being investigated)
3. education provider about a student's entitlement to study or other information that establishes a student's non-compliance with visa conditions, and
4. employer or education provider that is relevant to an investigation into their compliance with their immigration obligations.

As a safeguard in exercising these powers, it is proposed that powers of entry and inspection (where these are additional to those existing in the 1987 Act) be activated by Order in Council made once the chief executive had satisfied the Minister that all necessary training, systems and procedures were in place.

Status quo

Immigration officers have powers of entry and inspection of accommodation providers' records when locating overstayers. No warrant is required to exercise these powers.

The 1987 Act allows immigration officers to enter employers' premises to inspect and copy time and wage information regarding an employee suspected of being here unlawfully, or who may be working in breach of their permit conditions. No warrant is required in order to exercise this power.

The 1987 Act does not specifically allow immigration officers to enter and inspect records held by an education provider to determine whether that organisation is meeting its immigration obligations. The 1987 Act does not provide for immigration officers to inspect information establishing a student's entitlement to study or their non-compliance with immigration obligations.

Discussion paper and submissions

The discussion paper asked "What provision should there be for requiring organisations to provide information to assist with an immigration investigation?" The proposal to increase access to information received high level of support as noted in paragraphs 0 - 0.

The discussion paper also contained proposals to clarify and strengthen obligations on third parties, particularly education providers and employers. A power allowing inspection of records in order to monitor compliance with immigration obligations was discussed in relation to education providers. Approximately 70 percent of 38 organisations and 85 percent of 38 individual submitters supported this proposed power. Submitters commented on the need to monitor compliance with immigration obligations by both education providers and non-citizen students. The New Zealand Vice Chancellor's Committee submission expressed a concern that confidential student information held by universities should not be shared.

The Ministry of Education submitted that:

"Knowing where international students are and whether they are attending courses is vital to the safety of international students in New Zealand. Providing immigration officers with the power to require information from education providers will assist in the monitoring of both students' and providers' compliance with immigration requirements. It should be noted that the industry itself has requested (via the Code office) that the Department of Labour undertake 'spot checks' of providers in an effort to weed out those institutions that are perpetually non-compliant".

Comment

This power does not include a search capability, instead it permits officers to enter premises to request the provision of relevant files and documentation to monitor compliance. Powers of entry and inspection are less intrusive than powers of entry and search. The requirement that these powers should come into force through an Order in Council provides a safeguard for the exercise of these powers by immigration officers. The Order in Council requirement allows the Minister to ensure that the Department has developed operational instructions and administrative oversight procedures to govern the exercise of these powers. The Minister would also need to be satisfied that the Department has developed and implemented an appropriate training programme for officers who are to be designated these powers.

The existing power to inspect time and wage records is vital when investigating compliance with permit conditions, but restricts the ability of compliance officers to inspect and copy other information held by an employer (such as a letter offering the job, or an employment agreement). This information may establish whether an individual is complying with their visa conditions.

The ability to inspect records and relevant files held by third parties (employers and education providers) is crucial for undertaking effective investigations. Further, the ability to detect non-compliance increases incentives for third parties to comply with their obligations. Chapter Eight: Third parties sets out proposals to improve obligations on third parties and provides for a more consistent infringement system to support this.

These proposals would enable the Department to ensure that education providers, employers and non-citizens are fulfilling their immigration obligations. They would contribute to the integrity of the immigration system by ensuring that only those entitled to study or work did so, and that student visas were not seem as an easy entry into New Zealand.

Proposal

It is proposed that the Bill empower designated officers to search for travel and identity documentation. This power would be able to be exercised only when exercising the power of entry and search to locate a person who is unlawfully present, refused entry, or committing an offence under the 1987 Act in border areas and craft.

Status quo

The 1987 Act provides for police and customs officers undertaking immigration duties to enter and search border areas and craft to locate and detain people. There is no provision for an associated search for travel and/or identity documentation.

Discussion paper and submissions

This issue was not raised in the public discussion document. It arose following further consideration of the adequacy of the current power and the public consultation.

Comment

Currently, the 1987 Act provides for the location of a person in a border area who is unlawfully present, refused entry, or committing an offence under the 1987 Act. The power should, however, also provide for designated officers to search for travel and identity documentation related to an individual who is being sought, or who has been located, under this power. The ability to search for travel and identity documents while, or immediately upon, locating an individual would increase the likelihood of, for example, positively identifying the individual, and/or encouraging the individual to identify people who assisted in their entry.

This power would be limited to the border environment which is a heavily regulated environment designed to protect New Zealand's border. There should be a reduced expectation of privacy within this environment by those seeking to enter New Zealand. It is considered that a search as outlined above cannot be considered to be an intrusion into a reasonable expectation of privacy. Exercise of this power would be limited to those immigration officers who had undertaken an approved training programme and would require acting within agreed operational instructions.

Proposal

It is proposed to introduce a statutory power of entry for designated immigration officers to Immigration Control Areas (as discussed in Chapter Two: Visas), and craft within those areas, to undertake immigration duties and to search for travel and identity documentation.

Status quo

Immigration officers do not have a statutory power of entry to border areas and craft for the purpose of fulfilling ordinary immigration functions such as:

1. processing arriving passengers
2. interviewing passengers identified as inadmissible prior to their disembarkation from a craft, to view their seating or to identify those seated with them
3. attempting to locate passengers' travel or identity documents, or
4. facilitating the departure of people being removed, deported or turned around.

Discussion paper and submissions

This issue was not raised in the discussion document. The creation of immigration specific processing zones (Immigration Control Areas) had not been raised at that point. It is largely a technical modification to existing definitions of areas and is unlikely to attract substantial public comment.

Comment

The current inability for immigration officers to access border areas to carry out immigration functions reduces the ability of the Department to deliver expected immigration outcomes - particularly around the arrival and departure of people of interest (such as people who are inadmissible, make protection claims, or who are being deported from New Zealand). The possibility that immigration officers may be prevented access to these areas reduces the opportunity for the Department to take part in a whole of government response to an issue involving immigration concerns.

This provision would still require inter-agency agreements around access within areas designated by other pieces of legislation (such as the Customs and Excise Act 1996 and the Civil Aviation Act 1990). This is analogous to the situation whereby Customs officers acquire access to Aviation Security Areas that co-exist with Customs Controlled Areas.

Proposals

It is proposed that the Bill provide for the Department to require from airport management companies the provision of space for operational purposes.

It is proposed that operational spaces used by the Department not be subject to charges. The extent of both proposed powers would align with similar provisions in Customs and MAF legislation.

Status quo

Other government agencies with significant roles at the border have legislative provisions allowing them to require the provision of operational space. This provision has not been used as the most frequent inhibitor to additional space has been the physical and structural capacity of the airport at the point where agencies must be placed. Negotiations for space improvements occur regularly between agencies and the airport companies.

[Information withheld under sections 9(2)(i) and 9(2)(j) of the Official Information Act 1982]

Other airports (regional international airports) do not currently charge the Department for space required or space is required on only an ad hoc basis. Passenger flows at these ports require a more limited immigration presence than at the metropolitan international airports.

The government agencies that require airport space also have provision to use operational space without charge. This provision is used and these agencies pay rent only for "back office" functions and staff spaces with operational areas attracting no rental.

Discussion paper and submissions

This proposal was not consulted on as it is an issue largely confined to airport management companies. In a separate consultation exercise, airport management companies were contacted to outline the proposal and seek comment. Airports raised concerns about the possibility that this power could lead to an increased demand for space and the possibility that there may be duplication in space requirements of government agencies. The basis for making this change was also queried in terms of public and private benefit and the usefulness of user pays to ensure space requirements remain reasonable. Further discussions with airport management companies will clarify many of the points raised but it is expected that the metropolitan international airports (who currently charge for space) may be opposed to this proposal.

Comment

Proposals

It is proposed that the Bill continue to allow for certification of particular matters that will be presumed to be evidence in proceedings before a court or the Immigration and Protection tribunal.

It is proposed that the Bill include the following as additional matters that can be certified as evidence:

1. certification of an individual's fingerprints obtained under a particular name in a particular country
2. certification that a person has or has not been granted any particular immigration status (including any particular type of visa or permit, refugee or protection status, permanent residence, and/or citizenship) under a particular name in a particular country
3. certification that a person has been deported from another country (New Zealand is already covered)
4. certification that a person has or has not been issued a passport, certificate of identity, or other document under a particular name in a particular country
5. certification that a person has or has not been convicted, charged, and/or is under investigation under a particular name in a particular country
6. certification that a person has or has not been awarded a particular qualification under a particular name in a particular country
7. certification that a person was or was not employed in a particular position (by a particular employer) under a particular name in a particular country, and
8. certification that a certain document or application was received by an immigration officer on a certain date.

Status quo

The 1987 Act enables an immigration officer to provide a statement of certain matters to a court. This statement is able to be rebutted in court by the defendant. In the absence of proof to the contrary, the statement will be deemed to be proof of the matter.

Discussion paper and submissions

This matter was not discussed in the discussion document as at that time there was no proposal for change. Following the public consultation period, further review identified a number of additional facts that need to be included within this mechanism.

Comment

This mechanism is required because to prove some facts in the normal way in Court is too big a burden on the State. A current example is proving that the Department did not grant a permit to an individual. A negative fact is far easier to prove as incorrect (by producing a permit) than it is to prove correct.

Without this proposal, proving the proposed additional facts in court imposes a substantial burden on the State, as it often imposes substantial costs for a number of New Zealand government agencies and liaison with overseas agencies. The time and cost involved in, for instance, locating and bringing to New Zealand a witness from another country to testify that a person was deported from that country, can delay and make the cost of proving a case disproportionate to the offence.